United States District Court, W.D. Arkansas, Texarkana Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
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.
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
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.
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).
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).
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
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.
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 ...