* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10028

Summary Calendar

ALLEN CARLTON, JR

Plaintiff - Appellant

v.

DONALD STEELE, JR; 

FAMILY DOLLAR STORES OF TEXAS LP

Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

No. 4:05-cv-711

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Allen Carlton, Jr., appeals the district court’s grant of summary judgment

in favor of Donald Steele, Jr., and Family Dollar Stores of Texas, LP (“Family

Dollar”) on his claims for defamation and civil conspiracy under Texas law.

Finding no error, we affirm.

I. Facts and Procedural Background

United States Court of Appeals

Fifth Circuit

F I L E D

May 14, 2008

Charles R. Fulbruge III

Clerk
No. 08-10028

2

On November 3, 2004, Carlton arrived in the parking lot of the Family

Dollar store in Fort Worth, Texas, to meet a friend. On this same day a number

of individuals had assembled in the parking lot to protest the manner in which

Steele, the store manager, handled an alleged shoplifting incident one week

earlier. While waiting, Carlton remained in close proximity to the protestors

and struck up a conversation with one of them.

Inside the store, customers complained to Steele that the protestors had

become very loud and were engaging in harassing and threatening behavior. In

response to these complaints, Steele called the police to report a “disturbance”

and stated that “a black male . . . wearing a cream or white jacket [and] a knit

pullover cap” was one of the persons responsible for the customers’ complaints.

Although Steele did not identify Carlton by name, the description that he gave

matched that of Carlton. 

Police officers responded to Steele’s call and consulted with Steele before

confronting the protestors. At this time, Steele reiterated customer complaints

about verbal harassment they experienced while attempting to enter the store.

The officers then confronted the protestors. Carlton was still standing with

them in the parking lot. After a brief conversation, the officers determined that

Carlton was the subject of an outstanding warrant and arrested him.

Carlton subsequently filed suit against the police officers, Steele and

Family Dollar, alleging violations of the Fourth and Eighth Amendments,

malicious prosecution, intentional infliction of emotional distress, negligence,

defamation, and civil conspiracy. The district court dismissed the claims against

the officers. This court affirmed. Carlton v. Fearneyhough, No. 07-10676, 2008

WL 686595 (5th Cir. Mar. 12, 2008) (unpublished). 

In this appeal, Carlton challenges the district court’s judgment in favor of

the remaining defendants, Steele and Family Dollar.

II. Discussion
No. 08-10028

1 Alternatively, Steele and Family Dollar argue that Steele’s statements to the police

was not defamatory because they were true. Because we decide that Steele’s statements are

entitled to qualified immunity under Texas law, we do not reach this alternative argument.

3

We review a grant of summary judgment de novo, applying the same

standard as the district court. Greenwell v. State Farm Mut. Auto Ins. Co., 486

F.3d 840, 841 (5th Cir. 2007). Summary judgment may be granted only if there

exists no genuine issue of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). We view the record in the light most

favorable to the non-moving party and draw all justifiable inferences in the nonmovant’s favor as well. TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d

754, 759 (5th Cir. 2002). 

Carlton argues that Steele defamed him by reporting to the police that he

was intimidating and threatening customers of Family Dollar. Under Texas law,

“[a] statement is defamatory if the words tend to injure a person’s reputation,

exposing the person to public hatred, contempt, ridicule, or financial injury.” 

Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 496 (Tex. App. 2003) (citing

Tex. Civ. Prac. & Rem. Code § 73.001). Carlton’s claim is one for slander

because it stems from alleged oral statements made by Steele. Id. “Slander is

a defamatory statement orally communicated or published to a third person

without legal excuse.” Burch v. Coca-Cola Co., 119 F.3d 305, 323 (5th Cir. 1997).

As Steele’s employer, Family Dollar may be held vicariously liable for any

slanderous statements made by Steele. Hooper v. Pitney Bowes, Inc., 895 S.W.2d

773, 777 (Tex. App. 1995).

Steele and Family Dollar respond that Steele’s statements are entitled to

a “qualified privilege” from liability because they were made to law enforcement

officials in the course of reporting a public disturbance in which he honestly

believed Carlton was involved.1 See Campbell v. City of San Antonio, 43 F.3d

973, 980 (5th Cir. 1995). Under Texas law, a speaker may be entitled to a
No. 08-10028

2 Because Carlton pursues this appeal pro se, we apply less stringent standards in

interpreting his arguments than we would in the case of a counseled party. Grant v. Cuellar,

59 F.3d 523, 524 (5th Cir. 1995). 

4

qualified privilege for “the communication of alleged wrongful acts to an official

authorized to protect the public from such acts” so long as the communication

was made “with proper motives and without actual malice.” Id. “The

communication is privileged unless made with the knowledge that . . . [i]t was

false or with reckless disregard for whether it was false.” Id. (quotation marks

omitted; alterations in original). This privilege is driven by the public policy

consideration that individuals must be able “to communicate with peace officers

the alleged wrongful acts of others without fear of civil action for honest

mistakes.” Id. (quoting Zarate v. Cortinas, 553 S.W.2d 652, 655 (Tex. Civ. App.

1977)).

We agree with the district court’s conclusion that Steele’s statements fall

within the range of communications contemplated under this qualified privilege.

Therefore, the burden was on Carlton to show that the privilege was lost “by

proving that the publication was made with malice or a want of good faith.”

Marathon Oil Co. v. Salazar, 682 S.W.2d 624, 631 (Tex. App. 1984). Carlton

argues that Steele acted without good faith because: (1) Steele “has no witnesses

but himself” to support the assertion that Carlton was harassing customers in

the Family Dollar parking lot and (2) Steele lied when he told police that Carlton

was “mad at him” due to the shoplifting incident.2 As we discuss below, neither

of these arguments creates a fact issue regarding Steele’s good faith in relaying

customer reports of Carlton’s harassing behavior to the police officers.

First, Steele’s affidavit is competent summary judgment evidence. Fed.

R. Civ. P. 56(e)(1). We will not discount Steele’s account of what customers

relayed to him regarding Carlton’s actions and what motivated him to contact

the police on November 3, 2004, simply because he has not produced a
No. 08-10028

5

corroborating witness. Carlton must point to specific facts that would show a

genuine issue for trial. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S.

574, 586-87 (1986). Simply asserting that Steele should produce additional

witnesses to support his arguments, even though competent evidence is already

present in the record, is not sufficient to carry this burden. 

To the extent Carlton argues that the testimony of “interested witnesses”

should be met with some skepticism at the summary judgment stage, we agree.

However, “a motion for summary judgment cannot be defeated solely by

conclusional allegations that a witness lacks credibility.” Thomas v. Great Atl.

and Pac. Tea Co., Inc., 233 F.3d 326, 331 (5th Cir. 2001). Carlton argues that

Steele could not truthfully assert that Carlton was “mad at him” (which Steele

did when talking with police officers) while simultaneously maintaining that he

did not know Carlton and had never met him before the day of the parking lot

protest (which Steele states in his affidavit). Carlton reasons that one of these

statements must be a lie. Therefore, Carlton argues, because Steele was lying

about whether he knew Carlton,the court must“assume [Steele] would have the

propensity to tell another lie,” namely that Carlton was harassing customers.

Carlton’s argument breaks down upon an examination of the record.

There is no inherent conflict in Steele’s statements. An unknown individual in

the parking lot ofthe Family Dollar could give indications of being mad at Steele

simply based on customer complaints regarding Carlton’s behavior and Carlton’s

proximity to the protestors. Carlton concedes the protesters were angry at

Steele. Malice or a lack of good faith does not arise from these two statements,

which are not inherently contradictory. Even were we to accept Carlton’s

argumentthat he has exposed an inconsistency in Steele’s statements, which we

do not, it is the type of minor testimonial inconsistency that cannot defeat

summary judgment in light of the fact that Carlton has produced no evidence
No. 08-10028

6

contradicting Steele’s version of the events. See O’Neal v. Cazes, 257 F. App’x

710, 714-15 (5th Cir. 2007) (unpublished) (citing Thomas, 233 F.3d at 331). 

The record indicates that Steele relayed customer reports of harassing

behavior to law enforcement officials so that those officials could protect

members of the public from further harassment. The law presumes good faith

in this instance, Salazar, 682 S.W.2d at 630, and Carlton has not pointed to

record evidence that would overcome that presumption. For these reasons,

Carlton’s defamation claim was properly denied. Because Carlton cannot prevail

on his underlying tort claim against Steele and Family Dollar, his claim for civil

conspiracy necessarily fails. Meadows v. Hartford Life Ins., 492 F.3d 634, 640

(5th Cir. 2007); Tilton v. Marshall, 925 S.W.2d 672, 680-81 (Tex. 1996). 

The judgment is AFFIRMED.