United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, UNITED STATES MAGISTRATE JUDGE
Christian, proceeding pro se, brought this action under 42
U.S.C. § 1983, alleging that various individuals
violated her civil rights, specifically, “[t]he right
to direct the upbringing of my son or to care for him,
” and “my freedom of speech.” Docket No. 1,
p. 3. She further alleges that “[e]ach of the
defendants used their state appointed titles to violate
several of my civil rights: 1st, 4th,
6th, 7th, 8th,
9th, [and] 14th.” Id. at
8. The events leading to this action allegedly relate to the
removal of Ms. Christian's son from her home and custody
following an altercation at his school involving the school
principal. Id. at 14-17. Ms. Christian asserts that
in March 2016, a DCS worker came to her home and searched it
based on “allegations, ” and in April 2016, DCS
workers came to her home and removed her son. Id. at
8. Ms. Christian named a total of fifteen individual
Defendants, including a juvenile court judge and various
workers with the Tennessee Department of Children's
Services (“DCS”). Id. at 2-7. Arlene
Middaugh and Kassie Davis, workers with Court Appointed
Special Advocates of Rutherford County (“CASA”),
are two of the Defendants named in the suit. Id. at
10. Ms. Christian alleges that they appeared in court in
April 2016 and “keep adding on to [the] perm plan every
time what their [sic] asking for is completed
against my will.” Id. This matter is now
before the Court upon a Motion to Dismiss filed by Ms.
Middaugh, Ms. Davis, and CASA
(“Defendants”). Docket No. 10. They have also
filed a Supporting Memorandum of Law. Docket No. 11. Ms.
Christian has filed a Response in Opposition. Docket No. 13.
For the reasons set forth below, the Court recommends that
Defendants' Motion be GRANTED.
LAW AND ANALYSIS
Motions to Dismiss Under Fed.R.Civ.P.
withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 547 (2007). The Supreme Court has clarified the
Twombly standard, stating that “[a] claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility requires “more than a sheer possibility
that a defendant has acted unlawfully.” Id. A
complaint that pleads facts “‘merely consistent
with' defendant's liability . . . ‘stops short
of the line between possibility and plausibility' of
‘entitlement to relief.'” Id.,
quoting Twombly, 550 U.S. at 557 (internal brackets
ruling on a defendant's motion to dismiss, the court must
“construe the complaint liberally in the
plaintiff's favor and accept as true all factual
allegations and permissible inferences therein.”
Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th
Cir. 1994). The court should allow “a well-pleaded
complaint [to] proceed even if it strikes a savvy judge that
actual proof of those facts is improbable.”
Twombly, 550 U.S. at 556. However, a
“plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions.”
Id. at 555. “‘[A] legal conclusion
couched as a factual allegation' need not be accepted as
true on a motion to dismiss, ” Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)
(citation omitted), and mere recitation of the elements of a
cause of action “or an “unadorned,
the-defendant-unlawfully-harmed-me accusation” will not
do, Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 555. While the court must accept “as true all
non-conclusory allegations in the complaint, ”
Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003,
1005 (6th Cir. 2009), it does not have to accept unsupported
legal conclusions, Iqbal, 556 U.S. at 678.
se complaints are to be held to less stringent standards than
formal pleadings drafted by lawyers, and should therefore be
liberally construed.” Williams v. Curtin, 631
F.3d 380, 383 (6th Cir. 2011) (internal quotation marks and
citation omitted). Pro se litigants, however, are not exempt
from the requirements of Federal Rules of Civil Procedure.
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
The Court is not required to create a claim for a plaintiff.
Clark v. Nat'l Travelers Life. Ins. Co., 518
F.2d 1167, 1169 (6th Cir. 1975); see also Brown v.
Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011)
(“a court cannot create a claim which [a plaintiff] has
not spelled out in his pleading”) (internal quotation
marks and citation omitted); Payne v. Sec'y of
Treas., 73 Fed.Appx. 836, 837 (6th Cir. 2003) (affirming
sua sponte dismissal of complaint pursuant to
Fed.R.Civ.P. 8(a)(2) and stating, “[n]either this court
nor the district court is required to create Payne's
claim for her”). To demand otherwise would require the
“courts to explore exhaustively all potential claims of
a pro se plaintiff, [and] would also transform the
district court from its legitimate advisory role to the
improper role of an advocate seeking out the strongest
arguments and most successful strategies for a party.”
Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985).
Ms. Christian's Claims Against These Defendants Under
42 U.S.C. § 1983
Christian alleges violations of her First, Fourth, Sixth,
Seventh, Eighth, Ninth, and Fourteenth Amendment rights
pursuant to 42 U.S.C. §1983. Docket No. 1. Section 1983
provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress . . . .
in order to state a claim under § 1983, a plaintiff
must: 1) allege the violation of a right secured by the
Constitution and laws of the United States, and 2) show that
the alleged deprivation was committed by a person acting
under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S.Ct. 2250, 2254-55 (1988), citing Parratt v.
Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913 (1981)
(overruled in part on other grounds, Daniels v.
Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662 (1986));
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98
S.Ct. 1729, 1733 (1978). The traditional definition of acting
under color of state law requires that the defendant in a
§ 1983 action have exercised power “possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”
Id. at 49, quoting United States v.
Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043 (1941).
the entirety of Ms. Christian's allegations against these
Defendants is that they appeared in court in April 2016 and
“keep adding onto [the] perm plan every time what their
[sic] asking for is completed against my
will.” Docket No. 1, p. 10. Ms. Christian does not
explain in what way either of these actions (appearing in
court or “adding to the perm plan”), which the
Court accepts as true for the purposes of this Motion,
violates her rights. The mere fact that these Defendants
appeared in court, without further information, cannot
support a claim for relief. Indeed, any claim against Ms.
Middaugh or Ms. Davis based upon their testifying in court
cannot proceed, as it is covered by the absolute immunity
granted to testifying witnesses. See Briscoe v.
LaHue, 460 U.S. 325, 326 (1983); Moldowan v. City of
Warren, 578 F.3d 351, 390 (6th Cir. 2009), citing
Spurlock v. Satterfield, 16 ...