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Funk-Vaughn v. Tennessee Department of Children's Services

United States District Court, M.D. Tennessee, Nashville Division

February 6, 2019

CATHRIN A. FUNK-VAUGHN, Plaintiff
v.
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, Defendant

          HONORABLE WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          JOE B. BROWN, UNITED STATES MAGISTRATE JUDGE.

         For the reasons stated below the Magistrate Judge RECOMMENDS that the pending motion to dismiss for failure to state a claim by the Tennessee Department of Children's Services (Docket Entry 6) be GRANTED, and the motion for a default and for a trial date by the plaintiff (Docket Entry 12) be DENIED as moot.

         BACKGROUND

         The Plaintiff filed her complaint against the Tennessee Department of Children's Services as the sole defendant (Docket Entry 1) on November 13, 2018. In response to the complaint, the defendant filed a motion to dismiss for failure to state a claim (Docket Entry 6), supported by a memorandum of law (Docket Entry 7). Upon the filing of this motion, an order (Docket Entry 8) was entered directing the plaintiff to respond to the motion on or before January 8, 2019, and advising the plaintiff that if she wished to amend her complaint she needed to read Federal Rules of Civil Procedure 15.

         The plaintiff subsequently filed a response to the motion (Docket Entry 11), along with her motion for default and to set a court date for trial (Docket Entry 12).

         LEGAL DISCUSSION

         Standard of Review.

         The State has correctly set out the standard of review for a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). “Merely pleading facts that are consistent with a defendant's liability or that permit the court to infer misconduct is insufficient to constitute a plausible claim.” HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). While pro se complaints are held to less stringent standards than formal pleadings and are liberally construed, pro se litigants are not exempt from the requirements of the Federal Rules of Civil Procedure and the court is not required to construe a cause of action on behalf of a pro se litigant. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The Court is not required to create a plaintiff's claim for her. As the 6th Circuit explained, it declined to:

[A]ffirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.

Young Bok Song v. Gipson, 423 Fed.Appx. 506, 510 (6th Cir. 2011).

         The complaint itself lists as the sole defendant the Tennessee Department of Children's Services (TDCS) and alleges jurisdiction under 42 U.S.C. § 1983 and 18 U.S.C. § 242. The complaint itself alleges a “conspiracy to deny access to the court, to family rights, to bodily and emotional integrity, to equal protection” based on violations of 42 U.S.C. § 1983, the First and Fourteenth Amendments, as well as the Fourth, Fifth and Ninth Amendments of the United States Constitution.

         Paragraph 2 alleges Sixth Amendment violations for ineffective assistance of counsel and the lack of trial strategy that led to adverse opinions in state courts against the plaintiff.

         Paragraph 3[1] alleges conspiracy to injure rights of party in state court and a denial of equal protection.

         Paragraph 4 alleges unconstitutional family separation in violation of the Fourteenth Amendment based on the removal of child from the biological natural parent.

         Paragraph 5 alleges conspiracy to deny the parent and her children equal protection of the law and to hinder authorities ...


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