Background
Louis Benjamin Galynsky, appearing pro se, sued Janeice Thomas for defamation and malicious prosecution. Galynsky alleged that Thomas maliciously called 911 to retaliate against him despite knowing there was no emergency, and subsequently engaged in a defamatory social media campaign posting false and damaging information about him on Facebook and other platforms. Galynsky’s pleading also included claims for intentional infliction of emotional distress, theft, negligence, trespass to chattels, and civil rights violations.
Thomas moved to dismiss under both Texas Rule of Civil Procedure 91a and the Texas Citizens Participation Act (TCPA). Thomas argued that her 911 call was protected petitioning activity and her social media posts were protected free speech. The trial court granted both motions, dismissing all claims with prejudice and awarding Thomas $2,500 in sanctions and $4,295 in attorney fees.
The Court’s Holding
The appellate court applied the three-step TCPA framework. At step one, Thomas demonstrated that Galynsky’s claims were based on her protected conduct—calling 911 and posting on social media. Galynsky conceded this point and did not contest it on appeal, so the court proceeded to step two.
At step two, Galynsky bore the burden of establishing by clear and specific evidence a prima facie case for each element of his claims. Although Galynsky asserted in his briefs that he had provided “substantial evidence of reputational damage,” “affidavits outlining false statements,” and evidence of “loss of clients, business opportunities, and mental anguish,” the record revealed no testimony, affidavits, or supporting evidence was actually attached to his response to Thomas’s motions to dismiss. Galynsky also failed to provide record references for his assertions, violating appellate briefing requirements.
Because Galynsky failed to meet his burden of proof at step two, the burden never shifted to Thomas to establish a defense at step three. The court affirmed the dismissal, finding dismissal was proper under the TCPA without reaching the Rule 91a analysis.
Key Takeaways
- Under the TCPA, a plaintiff must provide clear and specific evidence of a prima facie case for each element of the claim to overcome a motion to dismiss—bare assertions and conclusory allegations are insufficient.
- A pro se litigant’s pleadings receive liberal construction, but the litigant still must comply with the law and rules of procedure, including the requirement to provide evidence with motions and proper record citations.
- When a defendant establishes that a claim arises from protected conduct, the burden shifts to the plaintiff to produce evidence establishing prima facie liability before shifting back to the defendant to show an affirmative defense.
Why It Matters
This decision reinforces the TCPA as a powerful early-stage dismissal mechanism for defendants facing claims arising from protected petitioning and free speech. By requiring plaintiffs to submit clear and specific evidence with their responses to TCPA motions—not merely in subsequent briefs—courts can quickly dispose of retaliatory and frivolous litigation. The decision emphasizes that procedural requirements apply even to pro se litigants, and that claiming to have evidence without actually producing it offers no protection from dismissal.
The opinion also reflects appellate deference to trial courts applying the TCPA framework and the importance of a complete record. Galynsky’s failure to attach evidence to his response to the motion to dismiss proved fatal, even though he later asserted in his appeal brief that evidence existed. This underscores the practical necessity for litigants—represented or not—to attach supporting materials to pleadings responding to dismissal motions rather than deferring evidence to later briefing.