* This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 6/25/96

FOR THE TENTH CIRCUIT

DONALD C. HAYHURST, N.M.D.,

Plaintiff-Appellant,

v.

STANLEY BEYRLE, N.M.D.,

Individually and as agent for American

Association of Naturopathic Physicians;

and AMERICAN ASSOCIATION OF

NATUROPATHIC PHYSICIANS, an

Oregon corporation,

Defendants-Appellees.

No. 95-3335

(D.C. No. 95-CV-1279)

(D. Kan.)

ORDER AND JUDGMENT*

Before EBEL, BARRETT, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.
2

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Plaintiff Donald C. Hayhurst appeals from the district court’s dismissal of this pro se

diversity action seeking “redress for libel, slander, defamation, and an ongoing conspiracy,

perpetrated by the defendant(s) one and all . . . .” R. doc. 1 at 3. The district court analyzed

the composite pro se complaint into three components, one claim of defamation as to each

defendant individually and one claim of defamatory conspiracy, which it then rejected on

various legal grounds. As explained below, we affirm for substantially the reasons stated by

the district court in its order of dismissal.

The district court dismissed the conspiracy claim as factually inadequate under this

circuit’s pleading standards. We agree. The complaint merely states plaintiff’s subjective

conclusion that a conspiracy existed with respect to a letter signed solely by defendant Beyrle

under his own professional letterhead. The requisite factual allegations depicting or

indicating agreement and concerted action are plainly lacking. See Durre v. Dempsey, 869

F.2d 543, 545 (10th Cir. 1989); Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir. 1983),

overruled on other grounds by Garcia v. Wilson, 731 F.2d 640, 657 (10th Cir. 1984), aff’d,

471 U.S. 261 (1985). Indeed, plaintiff himself conceded in post-judgment proceedings that

the conspiracy claim “is not fully alleged and is a proper issue to dismiss from plaintiff’s

complaint at this time.” R. doc. 21 at 4.
1 The district court properly treated the letter, which was attached as an exhibit to the

complaint, as part of the pleadings for purposes of defendants’ motion to dismiss. See

Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 964-65

(10th Cir. 1994).

2 Plaintiff has never challenged the district court’s tacit premise that the circumstances

surrounding Beyrle’s letter, and plaintiff’s role therein, were sufficiently public to implicate

the principles discussed in Milkovich. See 497 U.S. at 20 n.6 (reserving judgment on

whether prescribed analysis applies to nonpublic figure). We therefore deem the matter

waived and proceed from the same premise as the district court. See, e.g., Sheets v. Salt

Lake County, 45 F.3d 1383, 1389-90 (10th Cir.)(issue whether plaintiff was public figure

deemed waived for lack of appellate argument on point), cert. denied, 116 S. Ct. 74 (1995).

3

We also agree with the district court’s dismissal of the defamation claim against

Beyrle individually on the basis that his letter1

 is not actionable under principles governing

the analysis of defamatory opinion established in Milkovich v. Lorain Journal Co., 497 U.S.

1 (1990),2 and related cases. See generally Dilworth v. Dudley, 75 F.3d 307, 309-10 (7th Cir.

1996)(actionability of opinion is threshold legal question for court); Partington v. Bugliosi,

56 F.3d 1147, 1153 (9th Cir. 1995)(same). Judgments by Beyrle, a naturopathic practitioner,

that he “can not condone nor support a ‘colleague’ who uses the so-called ‘therapies’ that he

does, and also conducts himself professionally as he does,” because the colleague “is not a

good representation of Naturopathic doctors or the therapies that we provide,” R. doc. 1, ex.

B, constitute neither direct assertions of objectively verifiable fact nor indirect shorthand for

conveying specific implications thereof. See Milkovich, 497 U.S. at 20-22. It is clear from

the context that Beyrle was simply airing his conflicting perspective on a matter of some

controversy--i.e., the appropriate nature and direction of the parties’ common professional

enterprise. 
4

When, as here, an author writing about a controversial

[matter] . . . offers his personal perspective about some of its ambiguities and

disputed facts, his statements should generally be protected by the First

Amendment. Otherwise, there would be no room for expressions of opinion

by commentators, experts in a field, figures closely involved in a public

controversy, or others whose perspectives might be of interest to the public.

Partington, 56 F.3d at 1154. In essence, Beyrle’s letter “is basically just a colorful and

insulting way of expressing disagreement with [plaintiff’s] idea[s], and it therefore belongs

to the language of controversy rather than to the language of defamation.” Dilworth, 75 F.3d

at 310; cf. Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S.

264, 268 (1974)(holding term, “traitor,” nondefamatory when used as “a lusty and

imaginative expression of the contempt felt by union members” for nonunion rivals);

Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 13-14 (1970)(holding term,

“blackmail,” nondefamatory where nothing more than “a vigorous epithet used by those who

considered [plaintiff’s] . . . position extremely unreasonable”).

Finally, the district court dismissed plaintiff’s defamation claim against the American

Association of Naturopathic Physicians (AANP) as time-barred because, unlike the Beyrle

letter, the materials attributed to the AANP were published well outside the one-year period

prescribed by Kan. Stat. Ann. § 60-514(a). In post-judgment proceedings, however, plaintiff

objected that the district court had misconstrued his claim against AANP, which he insisted

was limited specifically to the letter published by Beyrle--allegedly as AANP’s agent. R.

doc. 21 at 4-5 (paras. 2 & 3(b)). Plaintiff’s appellate argument on the limitations issue is

likewise tied exclusively to the Beyrle letter. Appellant’s Opening Br. at 3-A. Accordingly,
5

we do not address the timeliness of plaintiff’s defamation claim as it relates to the AANP

materials discussed by the district court, but instead affirm the court’s dismissal of the AANP

claim for the same reason we affirm its dismissal of the claim against Beyrle himself, i.e, the

only communication complained of does not constitute actionable defamation.

The judgment of the United States District Court for the District of Kansas is

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

James E. Barrett

Senior Circuit Judge