United States District Court, M.D. Tennessee, Nashville Division
CATHRIN A. FUNK-VAUGHN, Plaintiff
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES, Defendant
HONORABLE WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES
REPORT AND RECOMMENDATION
BROWN, UNITED STATES MAGISTRATE JUDGE.
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.
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
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).
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).
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.
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.
alleges conspiracy to injure rights of party in state court
and a denial of equal protection.
4 alleges unconstitutional family separation in violation of
the Fourteenth Amendment based on the removal of child from
the biological natural parent.
5 alleges conspiracy to deny the parent and her children
equal protection of the law and to hinder authorities ...