Bailey v. Finkbeiner et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JEFF BAILEY 	PLAINTIFF
v. 	Civil No. 6:24-cv-06095
DEREK SCOTT FINKBEINER, et al 	DEFENDANTS
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Jennifer E. Corley (“Corley”), Motion to Dismiss. 	ECF
No. 14. 	Plaintiff has responded to the Motion. 	ECF No. 19-21. 	Pursuant to the provisions of
28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District
Judge, referred this case to the undersigned for the purpose of making this Report and
Recommendation.
I. 	Background:
This is an action filed by Plaintiff alleging defamation and violations of 42 U.S.C. § 1983.
ECF No. 1. 	Plaintiff proceeds pro se. 	According to Plaintiff, Defendant Derek Scott Finkbeiner
(“Finkbeiner”) and Corley maintained a Facebook page named Hot Spring County Crime Watch.
Id. 	Finkbeiner, who is Sheriff of Hot Spring County, Arkansas is the administrator of the page
and Corley, who is a Justice of the Peace in Hot Spring, County, Arkansas serves as moderator.
Id. 	Plaintiff alleges this Facebook page is a public forum and, among other things, provides
updates on accomplishments of the Sheriff’s office and arrest information. 	Id.
Plaintiff alleges posts he made to this Facebook page were deleted and he was blocked
from being able to make posts in violation of his First Amendment rights. 	Id. 	Plaintiff also
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alleges a defamation claim based on a post which was made to this Facebook page that was false
and largely inaccurate. 	Id. 	Defendant Corley brings this Motion to Dismiss (ECF No. 14) and
argues there is no mention of any government policy, practice, law, or act that gives rise to "acting
under color of law" sufficient to support Plaintiff’s claim of civil rights violations under 28 U.S.C.
§ 1983. 	Id. 	Further, Corley argues she is a private individual and should not be considered an
agent acting under color of law. 	Id. 	Corley also argues this court should not exercise
supplemental jurisdiction over Plaintiff’s state law defamation claim. 	Id.
II. 	Applicable Law:
A party may move to dismiss for failure to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). 	To survive a motion to dismiss under Rule 12(b)(6), a pleading must
provide “a short and plain statement of the claim that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). 	The purpose of this requirement is to “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Bell Atl. Corp. v. Twonbly, 550 U.S. 544, 555 (2007)). 	The complaint’s factual allegations are
assumed true and all reasonable inferences are drawn in Plaintiff’s favor, “even if it strikes a savvy
judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 555-56. 	The Court,
however, need not “blindly accept the legal conclusions drawn by the pleader from the facts.”
Westcott v. City of Omaha, 901 F.2d 14486, 1488 (8th Cir. 1990).
The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S.). 	“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
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alleged.” Id. 	“Though pro se complaints are to be construed liberally, see Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285 (1976), they still must allege sufficient facts to support the claims
advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir.2004).
III. 	Discussion:
1. First Amendment
Plaintiff alleges posts he made to the Hot Spring County Crime Watch Facebook page were
deleted and he was blocked from being able to make posts in violation of his First Amendment
rights. 	Plaintiff claims Corley acted under color of state law when she participated in blocking
and deleting posts Plaintiff made on this Facebook page, because the page was a virtual public
forum.
At this early stage of the litigation and with only the facts in the Complaint before it, the
Court 	knows 	very 	little 	about 	how 	this 	Facebook 	page 	in 	question 	was 	operated. 	If
the Facebook page is a personal Facebook page which occasionally provided updates on County
business, then this page would not likely bear enough indicia of an official state-run account to
satisfy § 1983’s color-of-state-law requirement under clearly established Eighth Circuit law.
In Campbell v. Reisch, 986 F.3d 822 (8 th Cir. 2021) a Missouri state senator was found not to have
acted under color of state law when she blocked a constituent from a Twitter page that she had
created to announce her candidacy for office. 	The Reisch court observed that a personal social
media page is not transformed into a public forum simply because the owner of the page holds
public office. 	Just being a public official is not enough because “acts that public officials take in
‘the ambit of their personal pursuits’ do not trigger § 1983 liability.” Id. at 824 (quoting Magee v.
Trs. of Hamline Univ., 747 F.3d 532, 535 (8th Cir. 2014)).
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Proving that an official's social media account has been transformed to a public forum will
require a fact-intensive analysis of the account's history and usage. Some important factors
considered by the Eighth Circuit include: (1) whether the social media account was started before
the owner became a public official; (2) the overall “theme” of the owner's postings on the account;
(3) whether the account was only occasionally used to provide updates on legislation or to explain
the effect of recently enacted laws; and (4) whether the main purpose of the postings was for the
official to campaign for office or to “emphasize [the official's] suitability for public office.” 	Id. at
827.
At this stage of these proceedings, only the facts in the Complaint may be considered.
Assuming these facts are true, Plaintiffs has plausibly stated a violation of his First Amendment
rights. 	He contends this Facebook page is a public forum and, among other things, provides
updates on accomplishments of the Sheriff’s office and arrest information. 	Plaintiff maintains
Corley and Defendant Finkbeiner deleted and blocked him from participating in because he
expressed unfavorable viewpoints of Defendant Finkbeiner. 	Given these facts, the Court cannot
say at this time that Plaintiff did not suffer a violation of his First Amendment rights and that those
rights were not clearly established at the time of the alleged violations.
2. State Law Defamation Claim
Plaintiff’s Complaint also alleges a defamation claim based on a post which was made to
this Facebook page that was false and largely inaccurate. 	Defendant Corley argues in her Motion
to Dismiss, that because there is no valid federal claim under § 1983, the state law claims cannot
proceed under the doctrine of supplemental jurisdiction.
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Once original jurisdiction has been established over one or more claims asserted in an
action, the federal court may exercise supplemental jurisdiction over any state law claims which it
would otherwise lack an independent basis for jurisdiction. 	Carnegie–Mellon Univ. v. Cohill, 484
U.S. 343, 349–50 (1988). 	Pursuant to 28 U.S.C. § 1367(a), such supplemental jurisdiction is
proper when the complaint brings state law claims “that are so related to claims in the action within
such original jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” 	Claims are considered to be part of the same “case or
controversy” when they “derive from a common nucleus of operative fact and are such that [a
plaintiff] would ordinarily be expected to try them all in one judicial proceeding.” 	Kan. Pub.
Emps. Ret. Sys. v. Reimer & Koger, Assocs., Inc., 77 F.3d 1063, 1067 (8th Cir. 1996) (quotation
marks and citation omitted).
Given that the Court at this time declines to recommend dismissal of Plaintiff’s claims
based on a violation § 1983 and because it appears at this stage that the claim based on defamation
forms part of the same case or controversy within the court’s original jurisdiction, the Court
recommends continuing to exercise supplemental jurisdiction over Plaintiff’s defamation claim.
IV. 	Conclusion:
Accordingly, 	I 	recommend 	Defendant 	Corley’s 	Motion to Dismiss 	(ECF 	No. 	14)
be DENIED.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). 	The failure to file
timely objections may result in waiver of the right to appeal questions of fact. 	The parties
are reminded that objections must be both timely and specific to trigger de novo review by
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the district court.
DATED this 21st day of November 2024.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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