Kelley Troy Cooley v. Detective Sgt. John Barber, Acting in His Official Capacity

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ALD-401 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3327
KELLEY TROY COOLEY,
Appellant
v.
DETECTIVE SGT. JOHN BARBER, ACTING IN HIS OFFICIAL CAPACITY; WJET-
TV; EDWARD M. MEAD SR., CHAIRMAN OF THE BOARD; TIM LAFFERTY;
KARLLA MULLENEX; PAT HOWARD; LISA THOMPSON
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 06-cv-00160E)
District Judge: Honorable Sean J. McLaughlin
_______________________________________
Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
September 27, 2007
BEFORE: SLOVITER, CHAGARES and COWEN, CIRCUIT JUDGES
(Filed: October 4, 2007)
_______________________
OPINION
_______________________
PER CURIAM
This is an appeal from the District Court’s dismissal of Kelley Cooley’s complaint.

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For the following reasons, we will summarily affirm the District Court’s order. See Third
Circuit L.A.R. 27.4 and I.O.P. 10.6.
On July 18, 2006, Appellant Kelley Troy Cooley, an inmate incarcerated at the
State Correctional Institution at Camp Hill, Pennsylvania, filed a pro se civil rights action
pursuant to 42 U.S.C. § 1983. Appellant alleges that his constitutional rights were
violated as a result of alleged defamatory statements made by a police officer which were
repeated in newspaper articles and television broadcasts. Specifically, Appellant claims
that the alleged defamatory statements, publications and/or broadcasts caused him to
suffer embarrassment and damage to his reputation in the community. The statements
concerned crimes for which Appellant was charged, tried and acquitted. On July 5, 2007,
the District Court, adopting the report and recommendation of the Magistrate Judge,
entered an order dismissing Appellant’s claim for failure to state a claim. See Fed. R.
Civ. P. 12(b)(6). Appellant filed a timely notice of appeal from that order, and he also
filed a motion requesting appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1).
Our standard of review of the District Court’s dismissal under Rule 12(b)(6) is
plenary. Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). Plenary
review requires us to accept as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the light most favorable to the
plaintiff. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).
Assuming the truth of Appellant’s allegations and viewing them in the most
favorable light, we must agree with the District Court that Appellant has failed to state a

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claim upon which relief may be granted. “To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting under color
of state law.” Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)). The District Court correctly
determined that Appellant fails to allege a violation of a constitutionally protected right
because reputational harm alone is not a right protected by the Constitution. See Paul v.
Davis, 424 U.S. 693, 712 (1976) (holding that “[t]he interest in reputation . . . is neither
‘liberty nor ‘property’ guaranteed against state deprivation without due process of law”).
Appellant must also allege an alteration or extinguishment of an interest protected by the
Constitution or state law. Id. at 708-09; Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d
Cir. 1989). This has become known as the “stigma plus” requirement. Hill v. Borough of
Kutztown, 455 F.3d 225, 236 (3d Cir. 2006).
Appellant alleges that he suffered “loss of employment” because he was no longer
able to perform maintenance at his family’s hair salon as a result of the alleged
defamation by defendants. While the Supreme Court has recognized the severity of
depriving a person of the means of livelihood in the public employment context, neither
the Supreme Court nor any other Court of Appeals has recognized a protected interest in
private employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543 (1985)
(“[T]he significance of the private interest in retaining employment cannot be gainsaid.
We have frequently recognized the severity of depriving a person of the means of

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1Under Fed. R. Civ. P. 12(b)(6) a plaintiff with an arguable claim is ordinarily
accorded notice of a pending motion to dismiss for failure to state a claim and an
opportunity to amend his complaint before his motion is ruled upon. Grayson v.
Mayview State Hosp., 293 F.3d 103, 112 (3d Cir. 2002). In the present case Appellant
was given notice and an opportunity to amend his complaint. See Order, December 8,
2006. Appellant’s amended complaint, however, fails to allege additional facts which
would cure the defects in his original complaint. See “Request Amendment of Complaint
to Cure Procedural Defects Pursuant to Fed. R. Civ. Proc. 15,” December 18, 2006.
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livelihood.”); see Pendleton v. City of Haverhill, 156 F.3d 57, 63 (1st Cir.
1998)(“violation of constitutional proportions under a ‘stigma plus’ theory exists only if,
and to the extent that, the opportunities lost are government benefices denied as a result of
governmental action”); Drake v. Lab. Corp. of Am. Holdings, 290 F. Supp. 2d 352, 361
(E.D.N.Y. 2003)(loss of private at-will employment is insufficient to establish the
deprivation of a constitutionally-protected interest). Therefore, even if we accept
Appellant’s defamation claims as true, he cannot succeed because he has failed to allege
deprivation of an interest protected by the Constitution or state law.1
Accordingly, because this appeal presents us with no substantial question, we will
summarily affirm the decision of the District Court. See Third Circuit L.A.R. 27.4 and
I.O.P. 10.6. In light of our disposition, Appellant’s motion for appointment of counsel is
denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).

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