United States District Court, S.D. Alabama, Northern Division
DEANDRA M. LEE, Plaintiff,
MICHAEL JACKSON, Defendant.
REPORT AND RECOMMENDATION
WILLIAM E. CASSADY, Magistrate Judge.
Plaintiff, an Autauga Metro Jail inmate proceeding pro se and in forma pauperis, filed a complaint under 42 U.S.C. § 1983. This action was referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that this action be dismissed without prejudice, prior to service of process, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and §1915A(b)(1).
I. Complaint (Doc. 1).
The sole defendant to this action is Michael Jackson, District Attorney for Dallas County, Alabama. (Doc. 1 at 4). In the very brief complaint, plaintiff alleges that on June 6, 2012, according to his family members, defendant Jackson "called a meeting and press conference with the victims family and Channel 8 news to condem[n] and degrade [his] character and reputation by slander and def[a]mational influence to the public of local and surrounding counties leaving them to believe [he] was a heartless career criminal of the City of Selma/Dallas County." ( Id. at 3). Plaintiff alleges that on June 6, 2012 from 5:00 p.m. to 5:30 p.m., Channel 8 of Selma/Dallas County aired a news broadcast at the victims' residence. ( Id. at 4). Plaintiff claims that this is "harassment/slander-defamation of character and reputation/Fifteenth and Fourteenth Amendment violations." ( Id. ). For relief, plaintiff requests a public apology and "total enumeration for pain and suffering of lost wages, emotion[al] distress etc." ( Id. at 6).
II. Standards of Review Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
Because plaintiff is proceeding in forma pauperis, the Court is reviewing his complaint (Doc. 1) under 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to enforce a right that clearly does not exist. Id.
Moreover, a complaint may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). To avoid dismissal for failure to state a claim upon which relief can be granted, the allegations must show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). "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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level" and must be a "plain statement' possess[ing] enough heft to sho[w] that the pleader is entitled to relief.'" Twombly, 550 U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in original). But "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Furthermore, when a successful affirmative defense, such as a statute of limitations, appears on the face of a complaint, dismissal for failure to state a claim is also warranted. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007).
When considering a pro se litigant's allegations, a court holds them to a more lenient standard than those of an attorney, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), but the court does not have "license... to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an action." GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) (relying on Iqbal, 556 U.S. 662, 129 S.Ct. 1937). The factual allegations are treated as true by the court, but conclusory assertions or a recitation of a cause of action's elements are not. Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro se litigant "is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure." Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 863 (1989).
A. Claims for Harassment, Slander, and Defamation.
1. Fourteenth Amendment.
Plaintiff's claim is based on what defendant Jackson said to the public which was then repeated on the televised news. Plaintiff does not advise what was said, but he concludes that the comments constituted harassment, slander, and defamation of character and reputation, and made him out to be a heartless career criminal.
In order to state a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that the complained of "conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). A person's reputation by itself, however, is not a "liberty" or "property" interest that is protected by the Fourteenth Amendment and its due process principles. Moncrieffe v. Broward Cnty. State Attorney's Office, 516 F.App'x 806, 807 (11th Cir. 2013) (unpublished). "[N]o constitutional doctrine [exists] converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment." Paul v. Davis, 424 U.S. 693, 702, 96 S.Ct. 1155, 1161, 47 L.Ed.2d 405 (1976). That is, "[a]n alleged act of defamation of character or injury to reputation is not cognizable in a complaint filed under § 1983." Padgett v. Mosley, CA No. 2:05-cv-0608-MEF, 2007 WL 2409464, at *7 (M.D. Ala. Aug. 20, 2007) (unpublished).
"Defamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation." Siegert v. Gilley, 500 U.S. 226, 233, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277 (1991). The state-tort of defamation encompasses slander, which is based on an oral statement, as compared to a written statement. BLACK'S LAW DICTIONARY, Defamation (9th ed. 2009). Likewise, slander is not recognized as a violation of federal law. Charles v. Scarberry, 340 F.App'x 597, 599-600 (11th Cir. 2009) (unpublished); see Barley v. Autauga Cnty. Comms's, CA No. 2:14-CV-55-TMH, 2014 WL 584255, at *2 (M.D. Ala. 2014) (unpublished) (A "slander and defamation claim fails to state a claim of constitutional proportion since the Constitution does not forbid defamation, libel or slander."). Furthermore, plaintiff's allegation of harassment is conclusory, although it appears to share the same basis in fact as the claims for defamation and slander. Nonetheless, verbal harassment alone does not violate a federal right. Bell v. Holder, CA No. ...