United States District Court, W.D. Arkansas, Texarkana Division
LANEY J. HARRIS PLAINTIFF
THE CITY OF TEXARKANA, ARKANSAS, et al DEFENDANTS
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT U.S. MAGISTRATE JUDGE
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
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.
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.
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
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).
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.
Federal Claims pursuant to 42 U.S.C. §
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.
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. ...