United States District Court, W.D. Arkansas, Texarkana Division
LANEY J. HARRIS PLAINTIFF
v.
THE CITY OF TEXARKANA, ARKANSAS, et al. DEFENDANTS
ORDER
Susan
O. Hickey Chief United States District Judge.
Before
the Court is the Report and Recommendation filed September
25, 2019, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 50. Judge Bryant recommends that Defendants' Motion
to Dismiss (ECF No. 40) be granted. Plaintiff has responded
with objections and supplement. ECF No. 52, 53. The Court
finds the matter ripe for consideration.
Plaintiff,
representing himself in this matter, filed an Amended
Complaint against Defendants, alleging various civil rights
violations connected to his being an elected member of the
Board of Directors for the city of Texarkana, Arkansas.
Plaintiff's Amended Complaint is seventy-one pages and
difficult to understand. It appears that, pursuant to 42
U.S.C. § 1983, Plaintiff alleges a First Amendment
retaliation claim, a procedural due process claim, an equal
protection claim, and a defamation claim. These claims are
based on the allegations that, as members of the Texarkana,
Arkansas Board of Directors, the individual Defendants voted
to censure Plaintiff, made defamatory statements about him,
and removed him from his appointment to the Advertising and
Promotion Commission. Plaintiff also alleges various state
law claims.
Defendants
filed a Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), arguing that all Plaintiff's claims
should be dismissed. Judge Bryant recommends that all federal
claims be dismissed with prejudice for failure to state a
claim. He further recommends that the Court decline to
exercise supplemental jurisdiction over the state-law claims.
Plaintiff has objected, and the Court will conduct a de novo
review.
A.
First Amendment Claim
“To
successfully plead a First Amendment retaliation claim, a
plaintiff must plausibly allege that he/she engaged in
protected activity and that defendants, to retaliate for the
protected activity, took adverse action against [him/her]
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) (internal quotation omitted).
Judge Bryant recommends dismissal of Plaintiff's First
Amendment retaliation claim because he has not plausibly
alleged that a censure “would chill a person of
ordinary firmness” from exercising First Amendment
rights. See id.
In his
objections, Plaintiff addresses this point by stating
“Defendant's prohibition chilled Plaintiff's
exercise of protected speech criticism of the city government
officials of improperly action and the condition of City
property is a matter of public concern.” ECF No. 52-1,
p. 5. Plaintiff cites no authority in support of this
statement and does not point the Court to anywhere in the
Amended Complaint where he makes this allegation. Instead,
Plaintiff's objections regarding this claim focus mainly
on his allegations that Defendants were biased against him.
The Court agrees with Judge Bryant's analysis and finds
that Plaintiff has not plausibly alleged that the censure of
a City Director would chill a person of ordinary firmness
from exercising First Amendment rights. Thus, Plaintiff's
First Amendment retaliation claim should be dismissed.
B.
Due Process Claims
To
state a claim for violation of procedural due process, a
plaintiff must plausibly allege that “(1) he had a
life, liberty, or property interest protected by the Due
Process Clause; (2) he was deprived of this protected
interest; and (3) the state did not afford him adequate
procedural rights prior to depriving him of the property
interest.” Stevenson v. Blytheville Sch. Dist.
#5, 800 F.3d 955, 966 (8th Cir. 2015) (internal
quotation omitted). Plaintiff appears to allege that he has a
protected interest in his position as a City Director, his
reputation, and his position on the Texarkana, Arkansas
Advertising and Promotion Commission (“APC”).
Judge Bryant recommends dismissal of Plaintiff's
procedural due process claim for the following reasons: (1)
Plaintiff has not been deprived of any interest he has in
being a City Director because he remains in that position;
(2) he has not alleged any tangible harm flowing from the
censure as required to state a procedural due process claim
based on loss of reputation; and (3) he does not have a
protected interest in his position on the APC.
In his
objections, Plaintiff appears only to challenge Judge
Bryant's recommendation regarding the “tangible
harm” requirement regarding due process claims based on
loss of reputation. To establish a loss-of-reputation due
process claim, a plaintiff must allege both damage to his
reputation from Defendants' censure and some tangible
effect on some liberty or property interest he possesses.
Paul v. Davis, 424 U.S. 693, 701 (1976). Plaintiff
broadly states in his objections that he has suffered
emotional distress and economic loss because of the censure.
ECF No. 52-1, p. 21. However, Plaintiff does not point the
Court to anywhere in his Complaint where he made these
allegations. Further, even if Plaintiff did make these
allegations in his Complaint, Plaintiff has stated no
authority to support the argument that emotional distress and
economic loss satisfy the “tangible harm”
requirement to state a procedural due process claim based on
loss of reputation. Accordingly, the Court agrees with Judge
Bryant's recommendation that Plaintiff's procedural
due process claims should be dismissed.
C.
Equal Protection Clam
To
state an equal protection claim, it is essential that
Plaintiff allege that he was treated differently than others
who are similarly situated to him. Keevan v. Smith,
100 F.3d 644, 648 (8th Cir. 1996). Judge Bryant recommends
dismissal of Plaintiff's equal protection claim because
Plaintiff fails to allege he was treated differently than any
similarly-situated individual.
In his
objections, Plaintiff states that he was treated differently
than “Caucasian Buddy Allen, Chairman of the A&P,
” because Plaintiff demanded that Allen be censured and
he was not. Plaintiff also states that he was treated
differently than the “Texarkana, Arkansas Fire
Department Captain.” ECF No. 52-1, p. 24. However,
Plaintiff fails to allege how these individuals are similarly
situated to him. Accordingly, the Court agrees with Judge
Bryant's recommendation that Plaintiff's equal
protection claim should be dismissed based on Plaintiff's
failure to allege in his Amended Complaint that he was
treated differently than others who were similarly situated
to him.
D.
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