Harris v. City of Texarkana

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE

         Before this Court is Defendants', The City of Texarkana, Arkansas, Tim Johnson, Barbara S. Miner, Travis N. Odom, Terri Kenner Peavy, Penny Ruth-Bell, and Linda Teeters Motion To Dismiss. ECF No. 40. Plaintiff filed a response to this motion. ECF No. 44. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2005), the Honorable Susan O. Hickey referred this motion to this Court for the purpose of making a report and recommendation. This Court, having reviewed the parties arguments and briefing, recommends Defendants' Motion To Dismiss (ECF No. 40) be GRANTED.

         1. Background

         On June 14, 2019, Plaintiff filed a pro se Amended Complaint against Defendants alleging various civil right violations connected to his being an elected member of the City of Texarkana, Arkansas, Board of Directors. ECF No. 33. Plaintiff's Amended Complaint is 71 pages in length with 447 numbered paragraphs. This Amended Complaint is a rambling and difficult to understand document. On July 22, 2019, Defendants filed a Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure12(b)(6). ECF. No. 40. Plaintiff responded to this motion on August 14, 2019. ECF No. 44, 45.

         2. Applicable Law

         When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim, the Court must take as true the alleged facts and determine whether they are sufficient to raise more than a speculative right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The Court does not, however, accept as true any allegation that is a legal conclusion. See Ashcroft v. Iqbal, 556 U.S.662, 678 (2009). The complaint must have a short and plain statement of the claim showing the plaintiff is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. See Twombly, 550 U.S. at 555. While detailed factual allegations are not necessary, a complaint that contains “labels and conclusions, ” and “a formulaic recitation of the elements of a cause of action” is not sufficient. See Twombly, 550 U.S. at 556.

         The complaint must set forth enough facts to state a claim to relief that is plausible on its face. See Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009). In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim. See Nusku v. Williams, 490 U.S. 319, 327 (1989).

         Although pro se complaints, “however inartfully pleaded, ” are to be held “to less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519, 520 (1972), “a district court should not assume the role of advocate for the pro se litigant, ” nor may a district court “rewrite a [complaint] to include claims that were never presented, ” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999) (quotations omitted), cited with approval in Palmer v. Clarke, 408 F.3d 423, 444 n. 15 (8th Cir.2005).

         3. Discussion

         In liberally reviewing Plaintiff's pleadings, it appears he alleges (1) deprivation of constitutional rights and privileges under 42 U.S.C. § 1983, (2) defamation, (3) tort of outrage, (4) libel and slander, (5) civil conspiracy, (6) breach of fiduciary duty, (7) unjust enrichment, and (8) intentional infliction of emotional distress. These claims are based on the allegations, that as members of the Texarkana, Arkansas Board of Directors, the individual Defendants voted to censure him, made defamatory statements about him, and removed him from his appointment to the Advertising and Promotion Commission.

         A. Federal Claims pursuant to 42 U.S.C. § 1983

         i. First Amendment:

         On June 15, 2017, Defendants voted unanimously to censure Plaintiff for actions they felt did not represent the City. ECF 41, Pgs. 1-2. Plaintiff alleges the censure violated his First Amendment right to free speech. “To successfully plead a First Amendment retaliation claim, a plaintiff must plausibly plead that he/she ‘engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against them that would chill a person of ordinary firmness from engaging in that activity.' ” Zutz v. Nelson, 601 F.3d 842, 848-49 (8th Cir. 2010) (quoting Lewis v. Jacks, 486 F.3d 1025, 1028 (8th Cir. 2007)). Zutz is similar to the present matter in that both cases involved a dispute between members of a governing board or council. Although Zutz did not specifically address the First Amendment implications of a censure, the court rejected attempts to amend the complaint to include factual allegations the Board censured one of the plaintiffs. Id. at 851-52. As the court explained, “We have doubts as to whether these added factual allegations state constitutional deprivations sufficient to chill a person of ordinary firmness.” Id. at 851.

         Further, other Circuits deciding First Amendment retaliation claims based on a governing council's discipline of one of its own members have found no First Amendment violation. See Blair v. Bethel Sch. Dist., 608 F.3d 540, 546 (9th Cir. 2010) (school board member removed from vice president position allegedly because he was a persistent critic of the superintendent); Phelan v. Laramie Cty. Cmty. Coll. Bd. Trs.,235 F.3d 1243, 1248 (10th Cir. 2000) (community college board member censured for running advertisement encouraging the public to vote against a measure proposed by the board); Zilich v. ...