Palmer v. Schuette et al

Filing 18

ORDER Granting 7 Defendants' Motion to Dismiss; Granting 13 Plaintiff's Motion for Leave to File Supplemental Brief and Denying 14 Defendants' Motion to Strike Supplemental Brief. Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN PALMER,
Plaintiff,
Case No. 14-14820
HON. DENISE PAGE HOOD

v.
BILL SCHUETTE, Attorney General
and SCOTT TETER, Assistant
Attorney General,

Defendants.
_________________________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS [#7],
GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE
SUPPLEMENTAL BRIEF [#13], AND DENYING DEFENDANTS’
MOTION TO STRIKE SUPPLEMENTAL BRIEF [#14]
I.

INTRODUCTION
On December 19, 2014, Plaintiff Brian Palmer filed a three-count Complaint

against Defendants Bill Schuette (“Schuette”) and Scott Teter (“Teter”). Defendants
filed a Motion to Dismiss [Dkt. No. 7], which the parties have fully briefed,1 and the

1

Plaintiff filed, without seeking concurrence or leave of the Court, a “Supplemental Brief
to Motion to Dismiss” (“Supplemental Brief”). [Dkt. No. 12] The following day, apparently after
Defendants contacted Plaintiff in opposition to the Supplemental Brief, Plaintiff filed an ex parte
“Motion for Leave to File Supplemental Brief.” [Dkt. No. 13] A day later, Defendants filed a
“Motion to Strike Supplemental Brief” [Dkt. No. 14], to which Plaintiff responded. Even though
there is no authority for unilaterally filing a supplemental brief on a dispositive motion and even
though Plaintiff failed to seek concurrence from Defendants, the Court finds that the interests of
justice strongly favor the consideration of Plaintiff’s Supplemental Brief. Accordingly, the
1

Court held a hearing on Defendants’ Motion to Dismiss. For the reasons that follow,
the Court: (1) grants Defendants’ Motion to Dismiss with prejudice as to Counts I and
II, (2) grants Defendants’ Motion to Dismiss without prejudice as to Count III, and
(3) dismisses Plaintiff’s cause of action consistent with those rulings.
II.

BACKGROUND
Plaintiff is a former Michigan state representative who was charged in a

misdemeanor complaint with, and entered a no-contest plea in the 54A District Court
to, one count of willful neglect of duty under M.C.L. § 750.478. M.C.L. § 750.478
provides:
When any duty is or shall be enjoined by law upon any public officer, or
upon any person holding any public trust or employment, every willful
neglect to perform such duty, where no special provision shall have been
made for the punishment of such delinquency, constitutes a misdemeanor
punishable by imprisonment for not more than 1 year or a fine of not
more than $1,000.00.
The misdemeanor complaint was used as the factual basis for the no-contest plea. The
word “scheme” appeared several times in the misdemeanor complaint; the words
“Ponzi,” “fraud,” and “felony” did not appear in the misdemeanor complaint.
Teter is an assistant attorney general in the office of the Michigan Attorney
General. Teter is the assistant attorney general who: (a) headed the investigation that
Court: (a) grants Plaintiff’s Motion for Leave to File Supplemental Brief, (b) denies
Defendants’ Motion to Strike Supplemental Brief, and (c) has reviewed and considered
Plaintiff’s Supplemental Brief in deciding Defendants’ Motion to Dismiss.
2

resulted in Plaintiff being charged; (b) brought the misdemeanor complaint against
Plaintiff; and (c) appeared at the plea hearing. Schuette is the Attorney General for
the State of Michigan, and he authorized the charge against Plaintiff.
On December 20, 2013, the same day that Plaintiff entered his no-contest plea
and was sentenced, Schuette issued a press release regarding Plaintiff’s conviction on
the Michigan Attorney General website. Teter contributed to the information set forth
in the press release. The press release was titled “Schuette Announces Conviction of
Former Macomb State Representative for Role in Ponzi Scheme.” The Ponzi scheme
referenced in the press release was conducted by API Worldwide, Inc. (“API”). The
press release stated that Plaintiff:
(1)

“assisted two other men to operate a $9 million Ponzi scheme that
defrauded more than 150 persons between 2006 and 2012;”

(2)

“used his position as an elected official to assist operators” in operating
a fraudulent investment company;

(3)

had invested “$400,00 with Ripley [an alleged operator of the Ponzi
scheme] in an unregistered security;”

(4)

was convicted due to “using his position as an elected official to assist
the ring-leader of a $9 million Ponzi scheme;”

(5)

“met with potential investors on behalf of Ripley and API, with the
knowledge that Ripley was attempting to circumvent the Securities Act,
and that Palmer did not report the conduct to proper authorities;”

(6)

“carried a cell phone provided by API and answered calls from potential
investors even while on the House [of Representatives] floor;”
3

(7)

in order “to circumvent state security laws, . . . assisted Ripley by
providing documents to make the scheme appear legitimate and signed
investment guarantees;” and

(8)

knowingly allowed “Ripley [to use Plaintiff’s] name and position as a
public official to vouch for and sell the API scheme to potential victims.”

Dkt. No. 1, Paragraphs 24-32. Plaintiff alleges that the eight statements from the press
release identified above—and the title of the press release—are false and that
Defendants knew that the statements were false at the time the press release was
issued. Plaintiff further alleges that the press release remained on the Michigan
Attorney General website at the time the Complaint was filed and has been the basis
for other false articles and online postings about Plaintiff being involved in a Ponzi
scheme.
Prior to filing the Complaint, Plaintiff’s counsel asked Schuette to remove the
press release from the Michigan Attorney General website, but Schuette declined to
remove it. Plaintiff’s Complaint alleges that Defendants, acting in their individual
capacities:2 (1) violated Plaintiff’s due process rights under the Fifth and Fourteenth
Amendments (Count I); (2) violated Plaintiff’s Fourth Amendment right to be free

2

As the caption reflects, Plaintiff sued Defendants as “Bill Schuette, Attorney General
and Scott Teter, Assistant Attorney General.” See Dkt. No. 1, PgID 1. In his response brief,
Plaintiff states that he is not suing Defendants in their official capacities. If that was his
intention, “[b]ecause Defendants are state officials, any suit for monetary damages in their
official capacity [would be] deemed to be an action against the state of Michigan and therefore
subject to dismissal under the Eleventh Amendment.” Buchanan v. Metz, 6 F.Supp.3d 730, 738
(E.D. Mich. 2014) (citing Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 (6th Cir. 2004)).
4

from prosecution without probable cause (Count Two); and (3) defamed Plaintiff
under the laws of the State of Michigan (Count Three).
III.

APPLICABLE LAW & ANALYSIS

A.

Standard of Review
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s

complaint. Accepting all factual allegations as true, the court will review the
complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep’t of
Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive a
motion to dismiss, the complaint must state sufficient “facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint must demonstrate more than a sheer possibility that the
defendant’s conduct was unlawful. Id. at 556. Claims comprised of “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Id. at 555. Rather, “[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).
B.

Qualified Immunity
As the United States Supreme Court recently stated:
5

The doctrine of qualified immunity shields officials from civil liability
so long as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing violates
that right. We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional question
beyond debate. Put simply, qualified immunity protects all but the
plainly incompetent or those who knowingly violate the law.
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations and quotation marks omitted).
Qualified immunity is a two-step process. See, e.g., Saucier v. Katz, 533 U.S. 194
(2001); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). First, the Court must
determine whether, based upon the applicable law, the facts viewed in a light most
favorable to the plaintiff show that a constitutional violation has occurred. Causey v.
Bay City, 442 F.3d 524, 528 (6th Cir. 2006). Second, the Court must determine
whether the violation involved a clearly established constitutional right of which a
reasonable person would have known. Id.; Sample v. Bailey, 409 F.3d 689, 695-96
(6th Cir. 2005). Only if the undisputed facts, or the evidence viewed in a light most
favorable to the plaintiff, fail to establish a prima facie violation of clear constitutional
law can this Court find that the Defendants are entitled to qualified immunity. Turner
v. Scott, 119 F.3d 425, 428 (6th Cir. 1997).
Once a government official has raised the defense of qualified immunity, the
plaintiff “bears the ultimate burden of proof to show that the individual officers are
6

not entitled to qualified immunity.” Cockrell v. City of Cincinnati, 468 F. App’x 491,
494 (6th Cir. 2012) (citation omitted). A plaintiff must also establish that each
individual defendant was “personally involved” in the specific constitutional violation.
See Salehphour v. University of Tennessee, 159 F.3d 199, 206 (6th Cir. 1998); Bennett
v. Schroeder, 99 F. App'x 707, 712-13 (6th Cir. 2004) (unpublished) (“It is wellsettled that to state a cognizable Section 1983 claim, the plaintiff must allege some
personal involvement by the each of the named defendants”).
C.

Analysis
Plaintiff has alleged that Defendants’ press release contained false and

defamatory statements that resulted in Plaintiff suffering “severe and substantial
damages[,] . . . includ[ing] loss of earnings and loss of earnings capacity, lost business
opportunities, litigation expenses including attorney fees, loss of reputation,
humiliation, embarrassment, inconvenience, mental and emotional anguish, and
distress,” all of which must be taken as true for purposes of deciding Defendants’
Motion to Dismiss. See Dkt. No. 1, ¶¶ 47, 57, 80.
1.

Count I

In Count I, Plaintiff alleges that Defendants violated his due process rights
under the Fifth and Fourteenth Amendments. Defendants accurately note, and
Plaintiff does not contest, that the Fifth Amendment is applicable only to federal
7

actors, not state actors. See, e.g., Scott v. Clay Cty., 205 F.3d 867, 873 n.8 (6th Cir.
2000). As Defendants are state actors, not federal actors, the Court dismisses the Fifth
Amendment component of Count I of Plaintiff’s Complaint.
A procedural due process claim requires that a plaintiff plead facts sufficient to
establish that: (1) he has an interest protected by the Due Process Clause of the
Fourteenth Amendment; (2) he was deprived of this protected interest within the
meaning of the Due Process Clause; and (3) the State did not afford him adequate
procedural rights prior to depriving him of this protected interest. See, e.g., Hahn v.
Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
Plaintiff asserts that the United States Supreme Court has recognized a civil
rights claim for a due process violation where an individual is defamed by a
government official, without being afforded due process. Plaintiff maintains that he
has a clearly established liberty interest protected by the Due Process Clause of the
Fourteenth Amendment with respect to his good name, reputation, honor, and
integrity. Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971) (“Where a person’s good name, reputation,
honor, or integrity is at stake because of what the government is doing to him, notice
and an opportunity to be heard are essential.”).
Plaintiff’s argument does not account for the fact that Roth, Constantineau and
8

McGrath were clarified by the Supreme Court’s subsequent decision in Paul v. Davis,
424 U.S. 693 (1976). The Paul v. Davis court rejected the proposition that defamation
alone was sufficient to form a constitutional violation pursuant to the Fourteenth
Amendment Due Process Clause:
Respondent, however, has pointed to no specific constitutional guarantee
safeguarding the interest he asserts has been invaded. Rather, he
apparently believes that the Fourteenth Amendment’s Due Process
Clause should ex proprio vigore extend to him a right to be free of injury
wherever the State may be characterized as the tortfeasor. But such a
reading would make of the Fourteenth Amendment a font of tort law to
be superimposed upon whatever systems may already be administered
by the States.
Id. at 700-01. With respect to the language from Constantineau quoted above, the
Paul v. Davis court stated that the words “because of what the government is doing
to him:”
[R]eferred to the fact that the governmental action taken in that case
deprived the individual of a right previously held under state law [–] the
right to purchase or obtain liquor in common with the rest of the
citizenry. . . . it was that alteration of legal status, combined with the
injury resulting from the defamation, [that] justified the invocation of
procedural safeguards.
Id. at 708-09 (emphasis added).
Regarding Roth, the Paul v. Davis court stated that “the defamation had to occur
in the course of the termination of employment.” Id. at 710. In his Supplemental
Brief, Plaintiff relies on Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
9

123 (1951). In McGrath, Justice Frankfurter stated in a concurring opinion that, for
organizations labeled “communist” by the Attorney General, “[t]he right to be heard
before being condemned to suffer grievous loss of any kind, even though it may not
involve the stigma and hardships of a criminal conviction, is a principle basic to our
society.” Id. at 168 (Frankfurter, J., concurring). First, as this language is from a
concurring opinion, it is not binding, nor does it create a constitutional right. Second,
this language was addressed by the Paul v. Davis court in the context of its
consideration of Constantineau, with the court holding that the invocation of
procedural safeguards are justified only when there is an “alteration of legal status .
. . , combined with the injury resulting from the defamation.” Paul v. Davis, 424 U.S.
at 708-09.
In discussing its precedent generally, the Supreme Court stated that:
In each of these cases [where the Supreme Court held that procedural
due process was required], as a result of the state action complained of,
a right or status previously recognized by state law was distinctly altered
or extinguished. It was this alteration, officially removing the interest
from the recognition and protection previously afforded by the State,
which we found sufficient to invoke the procedural guarantees contained
in the Due Process Clause of the Fourteenth Amendment. But the
interest in reputation alone which respondent seeks to vindicate in this
action in federal court is quite different from the “liberty” or “property”
recognized in those decisions.
Id. at 711 (emphasis added). The Supreme Court then held:
[An] interest in reputation is simply one of a number which the State
10

may protect against injury by virtue of its tort law, providing a forum for
vindication of those interests by means of damages actions. And any
harm or injury to that interest, even where as here inflicted by an officer
of the State, does not result in a deprivation of any “liberty” or
“property” recognized by state or federal law, nor has it worked any
change of respondent’s status as theretofore recognized under the State’s
laws. For these reasons we hold that the interest in reputation asserted in
this case is neither “liberty” nor “property” guaranteed against state
deprivation without due process of law.
Id. at 712 (emphasis added).
Based on Paul v. Davis, in order for the due process protection of a person’s
good name to be triggered, a plaintiff must establish that there had been: (a) a stigma
to his reputation; (b) a state action altering or extinguishing “a right or status
previously recognized by state law,” and (c) a contemporaneous tangible loss. Id. at
708-12. Fifteen years later, the Supreme Court again held there is no constitutional
violation for defamation itself:
In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976),
the plaintiff's photograph was included by local police chiefs in a “flyer”
of “active shoplifters,” after petitioner had been arrested for shoplifting.
The shoplifting charge was eventually dismissed, and the plaintiff filed
suit under 42 U.S.C. § 1983 against the police chiefs, alleging that the
officials’ actions inflicted a stigma to his reputation that would seriously
impair his future employment opportunities, and thus deprived him under
color of state law of liberty interests protected by the Fourteenth
Amendment.
We rejected the plaintiff’s claim, holding that injury to reputation by
itself was not a “liberty” interest protected under the Fourteenth
Amendment. 424 U.S., at 708–709, 96 S.Ct., at 1164–1165. We pointed
out that our reference to a governmental employer stigmatizing an
11

employee in Board of Regents of State Colleges v. Roth, 408 U.S. 564,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), was made in the context of the
employer discharging or failing to rehire a plaintiff who claimed a liberty
interest under the Fourteenth Amendment. 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 (1991) (emphasis added).
The Siegert court concluded:
The facts alleged by Siegert cannot, in the light of our decision in Paul
v. Davis, be held to state a claim for denial of a constitutional right. This
is not a suit against the United States under the Federal Tort Claims
Act[,] . . . but a suit against Siegert’s superior at St. Elizabeths Hospital.
The alleged defamation was not uttered incident to the termination of
Siegert’s employment by the hospital, since he voluntarily resigned from
his position at the hospital, and the letter was written several weeks later.
The statements contained in the letter would undoubtedly damage the
reputation of one in his position, and impair his future employment
prospects. But the plaintiff in Paul v. Davis similarly alleged serious
impairment of his future employment opportunities as well as other
harm. Most defamation plaintiffs attempt to show some sort of special
damage and out-of-pocket loss which flows from the injury to their
reputation. But so long as such damage flows from injury caused by the
defendant to a plaintiff’s reputation, it may be recoverable under state
tort law but it is not recoverable in a Bivens action. Siegert did assert a
claim for defamation in this case, but made no allegations as to diversity
of citizenship between himself and respondent.
Siegert, 500 U.S. at 233-34 (emphasis added).
Defendants contend that Plaintiff has not established any liberty or property
interest – or any other right granted to him by state or federal law – that is protected
under the Fourteenth Amendment. Plaintiff contends he has alleged that the protected
12

interest(s) Defendants “infringe[d] . . . [are] both his current and future employment
opportunities[.]” Dkt. No. 12, at 2 n.1 (emphasis in original). Under Michigan law,
loss of employment is a protected right. See, e.g., Lowe v. Hotel & Restaurant
Employees Union, Local 705, 389 Mich. 123, 148 (1973) (“Every [person’s]
employment is of utmost importance to him. It occupies his time, his talents, and his
thoughts. It controls his economic destiny. It is the means by which he feeds his
family and provides for their security. It bears upon his personal well-being, his
mental and physical health.”). See also Sampson v. Murray, 415 U.S. 61, 95 (1974)
(“Employability is the greatest asset most people have. Once there is a discharge from
[governmental employment], dismissal may be a badge that bars the employee from
other employment. The shadow of that discharge is cast over the area where private
employment may be available.”).
As Defendants argue, Plaintiff’s Complaint does not allege that the allegedly
defamatory comments affected his employment status at the time the press release was
issued; Plaintiff’s allegations pertain only to future employment opportunities. The
Sixth Circuit has recognized that when “the only interest impaired [is] that in future
employment, rather than an interest in employment presently enjoyed,” there is no
violation of a constitutional right. Mertik v. Blalock, 983 F.2d 1352, 1262-63 (6th Cir.
1993). “A stigma to a reputation that affects only future employment opportunities
13

does not give rise to a protected liberty interest.” Id.
The Court finds that Plaintiff has not alleged in his Complaint that any current
employment was affected. Contrary to Plaintiff’s argument in his Supplemental Brief
that “Defendants infringe[d] . . . his current . . . employment opportunities,” Paragraph
47 of his Complaint does not contain any reference to “current employment” or
“current employment opportunities.” In Paragraph 47, Plaintiff alleged only that the
defamatory comments caused him “loss of earnings and loss of earnings capacity, lost
business opportunities, litigation expenses including attorney fees, loss of reputation,
humiliation, embarrassment, inconvenience, mental and emotional anguish, and
distress.” Dkt. No. 1, Paragraph 47.
Plaintiff does not use the word employment in his Complaint, and he does not
allege in his Complaint, expressly or implicitly, that: (1) he had been or was employed
at the time the press release was issued, or (2) his employment was terminated or
threatened as a result of the alleged defamatory statements. Likewise, in his response
brief, Plaintiff argued only that he had “successfully established a constitutional right
that is protected by the Due Process Clause because the loss of employment
opportunities w[as] due to the false statements by the defendants . . .” Dkt. No. 9, at
11 (emphasis added). The words “employment opportunities” connotes employment
scenarios that have not yet occurred, and the Court finds that Plaintiff has not alleged
14

that any other “right or status . . . recognized by state law was distinctly altered or
extinguished” as a result of the allegedly defamatory statements by Defendants. Paul
v. Davis, 424 U.S. at 711.
The Court addresses several cases cited by Plaintiff, none of which serve to
alter the Court’s conclusion. First, Plaintiff argues that, in Buckley v. Fitzsimmons,
509 U.S. 259, 277 (1993), the Supreme Court stated: “Comments to the media have
no functional tie to the judicial process just because they are made by a prosecutor”
and
Statements to the press may be an integral part of a prosecutor’s job, . .
. and they may serve a vital public function. But in these respects a
prosecutor is in no different position than other executive officials who
deal with the press, and . . . qualified immunity is the norm for them.
Id. at 278. The Court finds that Buckley does not alter the Court’s analysis of this case
in any manner because Buckley simply clarifies that: (a) a prosecutor’s comments to
the press are to be evaluated in the context of qualified immunity (which is the
standard the Court has applied), and (b) prosecutors are not afforded absolute
immunity for such comments.
Second, Plaintiff’s reliance on Burns v. Reed, 500 U.S. 478, 486 (1991), is
similarly misplaced. The Burns court stated that “[t]he presumption is that qualified
rather than absolute immunity is sufficient to protect government officials in the
exercise of their duties.” Id. at 486-87. In Burns, the court considered “whether the
15

absolute prosecutorial immunity recognized in Imbler is applicable” to the defendant’s
actions. The Burns court held that a prosecutor’s act of giving advice to police is not
one that is “closely associated with the judicial process,” and absolute immunity is not
available under those circumstances. Id. at 495-96. Consistent with the holding in
Burns, no consideration of absolute immunity has been employed in analyzing this
case.
Third, two cases involving false statements made to the news media upon which
Plaintiff relies are distinguishable because: (1) the courts were considering judicial –
not prosecutorial – acts; and (2) more importantly, the immunity at issue centered on
whether the actor was entitled to absolute – not qualified – immunity. See Barrett v.
Harrington, 130 F.3d 246, 261 (6th Cir. 1997) (emphasis added) (addressing whether
a judge’s “allegedly false statements to the media qualify for absolute judicial
immunity”); Harris v. Harvey, 605 F.2d 330, 336 (7th Cir. 1979) (emphasis added)
(addressing contention of a judge “that he was absolutely immune for his comments
as a government official” in the context of extrajudicial/nonjudicial acts).
Fourth, the Valmonte v. Bane case cited by Plaintiff is not controlling because
it is from the Second Circuit. Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994). Even if
Valmonte were a Supreme Court or Sixth Circuit case, the Court finds that the facts
and holding in that case did not create a clearly established constitutional right
16

applicable in this case. As Plaintiff notes, Valmonte involved: (1) the inclusion of
names of persons on a registry “that identifies individuals accused of child abuse or
neglect, and [the state’s] communication of the names of those on the list to potential
employers in the child care field,” and (2) whether an individual’s inclusion on that
registry “implicate[d] a protectible liberty interest.” Id. at 994. But, as the court in
that case recognized:
[T]his is a unique situation, not previously considered in the case law.
We also recognize that the Supreme Court has given indications that
perhaps only those who are defamed while in the course of being
terminated from government employment can state a cause of action for
deprivation of liberty interest. . . . This statutory scheme is unique, . . .
Id. at 1002 (internal citations omitted) (emphasis added). The Court finds that the
factual circumstances of that case, which involved publishing a list of names pursuant
a statutory scheme (not a press release), are dissimilar from the instant case. The
Court also finds that the rule of law set forth in Valmonte is at least inconsistent with
(and perhaps contrary to) the binding Supreme Court precedent in Paul v. Davis and
Siegert, as the Valmonte court essentially acknowledged. Valmonte, 18 F.3d at 1001.
For that reason, the Court concludes that the “constitutional right” set forth in
Valmonte does not constitute a “clearly established . . . constitutional right[] of which
a reasonable person would have known.” Mullenix, 136 S.Ct. at 308.
For the reasons stated above, the Court concludes that the “defamatory
17

publications, however seriously they may have harmed [Plaintiff’s] reputation, did not
deprive him of any ‘liberty’ or ‘property’ interests protected by the Due Process
Clause.” Paul v. Davis, 424 U.S. at 712. The Court holds that Plaintiff’s allegations
vis a vis a deprivation of procedural due process rights under the Fourteenth
Amendment are not sufficient to support a finding that Defendants violated a clearly
established constitutional right of which a reasonable person would have known. The
Court grants Defendants’ Motion to Dismiss Count I of Plaintiff’s Complaint.
2.

Count II

Plaintiff does not allege or argue that he was subjected to an actual criminal
prosecution; rather, his claim in Count II is based on his “prosecution” stemming from
the allegedly defamatory press release. In order to overcome Defendants’ assertion
of qualified immunity, Plaintiff must establish that a prosecution by press release
violates a clearly established right under the Fourth Amendment. The Court finds that
Plaintiff has not satisfied his burden. The only authority cited by Plaintiff to support
his theory that Defendants are liable for the “prosecution” by press release is Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1999). The Court does not find Plaintiff’s argument regarding the applicability of
Bivens to the present matter persuasive.
As Plaintiff states, the Bivens court found a cause of action for a Fourth
18

Amendment violation based on an unlawful search and seizure, even though no
prosecution was brought, because there was government intrusion without probable
cause.3 Id. at 389, n.1. Plaintiff then contends that the accusations in this case, made
without probable cause, are comparable because they constitute government action
against him in violation of his right of privacy. Even if the Court were to conclude
that Plaintiff’s comparison is warranted and create such a right, there is no clearly
established right under the Fourth Amendment for an individual to be free from a
prosecutor making a statement about that individual to or for the press. See Siegert,
500 U.S. at 233-34 (“so long as such damage flows from injury caused by the
defendant to a plaintiff’s reputation, it may be recoverable under state tort law but it
is not recoverable in a Bivens action.”).
The Court grants Defendants’ Motion to Dismiss Count II of Plaintiff’s
Complaint.
3.

Count III

It is undisputed that Plaintiff’s defamation claim in Count III is rooted entirely

3

Plaintiff argues that Defendants misinterpreted Katz v. United States, 389 U.S. 347, 350
(1967), to mean that the Fourth Amendment does not protect the right to privacy when the
Supreme Court held that the Fourth Amendment did “protect[ ] individual privacy against certain
kinds of governmental intrusion….” The Court finds that Plaintiff’s argument is mistaken.
Defendants only cited Katz for the proposition that “the Fourth Amendment cannot be translated
into a general constitutional ‘right to privacy,’” id. at 351, which does not in any way foreclose a
finding that the Fourth Amendment “protects individual privacy against certain kinds of
governmental intrusion.” Id. at 350.
19

in state law. Because no federal law claim remains before the Court, and because this
case is in its preliminary stages, the Court concludes that the litigation of Plaintiff’s
state law claim would most appropriately be conducted in state court. For those
reasons, the Court declines to retain jurisdiction over Count III of Plaintiff’s
Complaint. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction”); Carnegie-Mellon v. Cohill, 484 U.S.
343 (1988).

The Court dismisses Count III of Plaintiff’s Complaint, without

prejudice.
IV.

CONCLUSION
For the reasons stated above,
IT IS ORDERED that: (1) Defendants’ Motion to Dismiss is GRANTED; (2)

Counts I and II of Plaintiff’s Complaint are DISMISSED WITH PREJUDICE, (3)
Count III of Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE, and
(4) Plaintiff’s cause of action is DISMISSED. Judgment will be entered accordingly.
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court

20

Dated: September 29, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 29, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

21