UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

BRIAN PALMER,

Plaintiff,

Case No. 14-14820

v. HON. DENISE PAGE HOOD

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

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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. 

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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;”

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(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)).

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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:

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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. 

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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

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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

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