Howard v. Cherry

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

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

         Before this Court is separate Defendant, Pam Cherry's, (“Cherry”) Motion To Dismiss. ECF No. 13. Plaintiff filed a response to this motion. ECF No. 25. 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 Defendant Cherry's Motion To Dismiss (ECF No. 13) be GRANTED.

         1. Background

         On January 30, 2019, Plaintiff filed a pro se Complaint against Defendants Pam Cherry and Pam Fisk. In the Complaint, Plaintiff alleges Cherry, a Department of Human Services (“DHS”) family service caseworker, defamed her after DHS took custody of her child and instituted legal proceedings against Plaintiff. Plaintiff argues DHS had custody of her child and Cherry defamed Plaintiff when Cherry presented evidence to the state trial court regarding the welfare of the child and the Plaintiff's participation in services. Cherry was named a Defendant in her official and individual capacities.

         On April 2, 2019, Cherry filed a Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). ECF. No. 13. Plaintiff responded to this motion on June 18, 2019. ECF No. 25.

         2. Applicable Law

         “Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute.” Great Lakes Gas Transmission Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 328 (8th Cir. 2016) (citing Gunn v. Minton, 568 U.S. 251, 256 (2013)). Federal Rule of Civil Procedure 12(b)(1) allows a defendant to seek dismissal of an action for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1).

         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 reviewing Plaintiff's pleadings, she alleges DHS had custody of her child and Cherry, who is a DHS family service caseworker, defamed Plaintiff when Cherry presented evidence to the state trial court regarding the welfare of the child and the Plaintiff's participation in services. ECF No. 2. Plaintiff alleges in her Complaint that Cherry defamed her by: (1) informing Plaintiff that is Plaintiff wanted to write to her child, she had to do so through Cherry and (2) then repeating the statement to Plaintiff during a state court proceeding.

         Pursuant to 28 U.S.C. § 1331 and § 1332, federal courts only have original subject matter jurisdiction over two types of cases: (1) federal question cases; and (2) diversity of citizenship cases. 28 U.S.C. § 1331; 28 U.S.C. § 1332. The present action is not a diversity of citizenship case as all of the adverse parties are not completely diverse with regard to citizenship. Therefore, jurisdiction is proper only if the case presents a federal question.

         Plaintiff's allegations of defamation fail to support a constitutional claim for relief. The United States Supreme Court has long held that defamation by a state or local official does not, by itself, violate rights protected by the federal constitution. See Paul v. Davis, 424 U.S. 693, 711-712 (1976). In addition, defamation is not actionable under section 1983 and damage to reputation, standing alone, does not state a claim for relief, because reputation is “neither ‘liberty' nor ...