The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
LANEY J. HARRIS PLAINTIFF
v. Case No. 4:18-cv-4091
THE CITY OF TEXARKANA,
ARKANSAS, et al. DEFENDANTS
ORDER
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. Defamation
Judge Bryant recommends dismissal of Plaintiff’s section 1983 defamation claim because
defamation is not actionable under section 1983. See Underwood v. Pritchard, 638 F.2d 60, 62
(8th Cir. 1981). In his objections, Plaintiff does not cite any authority to the contrary. Accordingly,
the Court agrees with Judge Bryant’s recommendation that Plaintiff’s section 1983 defamation
claim should be dismissed.
E. State Law Claims
Judge Bryant recommends that, because Plaintiff has failed to allege any viable federal
claim, the Court should decline to exercise supplemental jurisdiction over Plaintiff’s state law
claims. See 28 U.S.C. § 1367(c)(3); Johnson v. City of Sherwood, 360 F.3d 810, 819 (8th Cir.
2004). The Court agrees with this recommendation, and Plaintiff offers no compelling argument
as to why the Court should exercise supplemental jurisdiction over his state-law claims.
Based on its own de novo review, the Court overrules Plaintiff’s objections and adopts the
Report and Recommendation in toto. ECF No. 50. Accordingly, Defendants’ Motion to Dismiss
(ECF No. 40) is GRANTED. Plaintiff’s state-law claims are DISMISSED WITHOUT
PREJUDICE. Plaintiff’s federal claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED, this 17th day of October, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge