BROWN v. STARLING et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
:
LEGENA M. BROWN, 	:
:
Plaintiff, 	:
:
v. 	: 	Case No. 4:25-cv-41-CDL-AGH
:
MARSHA STARLING, et al., 	:
:
Defendants. 	:
_________________________________
REPORT AND RECOMMENDATION
On January 29, 2025, Plaintiff Legena Brown filed a pro se Complaint under
42 U.S.C. § 1983 (ECF No. 1). 	Defendants Marsha Starling, Jennifer Albritton,
Moneak McCrary, Norris Smith, and Cathy Lowe filed motions to dismiss (ECF Nos.
21, 22, 28, 46). 	For the reasons stated below, the Court recommends that these
Defendants’ motions be granted.
BACKGROUND
Plaintiff’s 	claims 	center 	around 	the 	alleged 	wrongful 	enrollment 	of 	her
daughter in school without Plaintiff’s consent. 	First, Plaintiff alleges that Marsha
Starling, Jennifer Albritton, and Moneak McCrary (collectively “School Defendants”)
violated her parental rights and the Family Educational Right and Privacy Act
(“FEPRA”) when they enrolled Plaintiff’s daughter, Jonasia Davis (“Davis”), at Taylor
County High School in Butler, Georgia, without Plaintiff’s consent. 	Compl. Attach.
1, at 4, ECF No. 1-1. Second, Plaintiff claims Defendants Smith and Lowe “conspired
with State officials” while making statements to the Taylor County Juvenile Court in
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Davis’s emancipation proceedings. 	Id. at 15, 18. 	Third, Plaintiff contends that
Defendant Smith made defamatory statements. 	Id. at 15-16. 	Finally, Plaintiff
contends that Defendant Lowe committed conspiracy, false statements, mail fraud,
wire fraud, perjury, and subornation of perjury. Id. at 19-20.
On March 19, 2025, the School Defendants filed a motion to dismiss (ECF No.
21), to which Plaintiff filed a response (ECF No. 39), and the School Defendants
replied (ECF No. 42). Defendant Smith filed a motion to dismiss on March 21, 2025
(ECF No. 22), to which Plaintiff responded (ECF No. 39), and Defendant Smith
replied (ECF No. 41). 	On April 1, 2025, Defendant Lowe filed a motion to dismiss1
(ECF No. 28), and on June 3, 2025, she subsequently amended her motion to dismiss
(ECF No. 46). 	Plaintiff responded to Defendant Lowe’s amended motion to dismiss
on June 10, 2025 (ECF No. 48). 	On June 11, 2025, Plaintiff filed a surreply to the
three pending motions to dismiss (ECF No. 49).2 Defendants’ motions are now ripe
for review.
1 While Defendant Lowe styled her responsive pleading as an answer, she titled it, “Defendant Cathy
Lowe’s Motion to Dismiss” (ECF No. 28). She titled a subsequent filing, “Amended (Entry Document
#28) Defendant Cathy Lowe’s Motion to Dismiss.” Given the title of Defendant Lowe’s first responsive
pleading (ECF No. 28), and the title and content of the motion to amend (ECF No. 46), the Court
construes Defendant Lowe’s first pleading (ECF No. 28) as a motion to dismiss and her second pleading
(ECF No. 46) as an amendment supplementing her motion to dismiss.
2 Plaintiff’s unauthorized surreply does not comply with the local or federal rules. 	In the future,
Plaintiff must comply with the rules. Nevertheless, the Court considers her surreply.
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DISCUSSION
I. 	Section 1983 Claims
The School Defendants argue that they are entitled to dismissal of Plaintiff’s
claims under § 1983 because (1) qualified immunity bars the action, and (2) Plaintiff
fails to state a claim upon which relief can be granted. Sch. Defs.’ Br. in Supp. of Mot.
to Dismiss 4-12, ECF No. 21-1 (“Sch. Defs.’ Br.”). 	The Court agrees that Plaintiff’s
§ 1983 claims against the School Defendants should be dismissed for failure to state
a claim. 	As a result, the Court declines to discuss the School Defendants’ qualified
immunity argument.
Similarly, Defendants Smith and Lowe contend that they are entitled to
dismissal of Plaintiff’s § 1983 claims because Plaintiff fails to state a claim upon
which relief can be granted. Smith Br. in Supp. of Mot. to Dismiss 8-10, ECF No. 22-
1 (“Smith Br.”); Lowe Answer & Defenses 1, ECF Nos. 28-1 and 46-1 (“Lowe Br.”).
The Court agrees that Plaintiff’s § 1983 claims against Defendant Smith and Lowe
should be dismissed because Plaintiff has not plausibly alleged that Defendant Smith
and Lowe acted under color of state law.
A. 	Standard
To state a claim for relief under § 1983, a plaintiff must allege that: (1) an act
or 	omission 	deprived 	her 	of 	a 	right, 	privilege, 	or 	immunity 	secured 	by 	the
Constitution or a statute of the United States; and (2) the act or omission was
committed by a person acting under color of state law. Hale v. Tallapoosa Cnty., 50
F.3d 1579, 1582 (11th Cir. 1995).
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A complaint fails to state a claim if it does not include “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 Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). 	In other words, the complaint must allege enough facts “to
raise a reasonable expectation that discovery will reveal evidence” supporting a
claim. Twombly, 550 U.S. at 556. “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
678.
“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011) (quotation marks and citation omitted). Nevertheless, while “[c]ourts
do and should show a leniency to pro se litigants not enjoyed by those with the benefit
of a legal education[,]” the Court is not permitted “to serve as de facto counsel for a
party” by “rewrit[ing] an otherwise deficient pleading in order to sustain an action[.]”
GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Iqbal, 556 U.S. 662.
B. 	Statement of Facts
Plaintiff alleges, and Defendants admit, that they hold the following position(s)
or relationship(s) to Plaintiff or Plaintiff’s daughter: Defendant Starling is the
Registrar for Taylor County High School. Compl. Attach. 1, at 4. Defendant Albritton
is the Superintendent of Taylor County Schools. Id. at 7. Defendant McCrary is the
Principal of Taylor County Middle School and the paternal aunt of Davis. Id. at 10.
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Defendant Smith is a pastor at Saint Phillip AME Church in Butler, Georgia. Id. at
14. Defendant Lowe is Davis’s paternal grandmother. Id. at 17.
Plaintiff alleges that Defendant Starling deprived Plaintiff of her Fourteenth
Amendment substantive due process parental rights by enrolling Davis at Taylor
County High School as an “unaccompanied minor” after Plaintiff explicitly told
Defendant Starling that she did not consent to Davis’s enrollment. Compl. Attach. 1,
at 4-6. Plaintiff argues that Defendant Albritton also violated Plaintiff’s Fourteenth
Amendment substantive due process rights by taking away Plaintiff’s “right to make
decisions regarding the care, custody, and control of her child” by enrolling Davis at
Taylor County High School after Plaintiff expressed her opposition. Id. at 7-9.
Plaintiff 	contends 	that 	Defendant 	McCrary 	deprived 	Plaintiff 	of 	her
Fourteenth Amendment substantive due process parental rights by “leveraging her
position as a school principal and her familial relationship to [Davis] [to] pressur[e]
school staff . . . to process [Davis’s] enrollment application[,]” despite Plaintiff’s
express disapproval. Id. at 10. Plaintiff also alleges that Defendant McCrary violated
Plaintiff’s 	Fourteenth 	Amendment 	equal 	protection 	rights 	by 	deliberately
discriminating against Plaintiff. Id. at 11.
Plaintiff 	asserts 	that 	Defendant 	Smith 	violated 	“defamation” 	laws 	and
Plaintiff’s “federal and legal rights” by signing and submitting an affidavit containing
false and defamatory statements against Plaintiff as a part of Davis’s emancipation
proceeding. Compl. Attach. 1, at 14-15. Plaintiff also asserts that Defendant Smith
may have signed a differing affidavit, which Plaintiff claims would “creat[e] further
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confusion and potential violations of court procedures.” 	Id. at 15. 	Plaintiff states
that she was “denied access to evidence and documents submitted during the
emancipation proceedings[.]” Id.
Finally, Plaintiff alleges that Defendant Lowe violated Plaintiff’s Fourteenth
Amendment substantive due process parental rights, as well as her equal protection
rights. 	Id. at 19-20. 	Plaintiff contends that Defendant Lowe knowingly submitted
false information to the Taylor County Superior Court by claiming that Davis worked
at Defendant Lowe’s company since May 2024. 	Compl. Attach. 1, at 17-18; Compl.
Attach. 3, at 20, ECF No. 1-3. 	Plaintiff asserts that once Defendant Lowe realized
that Davis did not live in Butler, Georgia, in May, Defendant Lowe stated that Davis
began working for her in July 2024. 	Compl. Attach. 1, at 18. 	Plaintiff argues that
Defendant Lowe’s “fraudulent statements and falsified documents were used to
facilitate [Davis’s] unauthorized enrollment at Taylor County High School” and to
“mislead” 	the 	Taylor 	County 	Superior 	Court 	“into 	granting 	the 	emancipation
petition.” Id.
C. 	Analysis
1. 	The School Defendants
a. 	Substantive Due Process
The Court should grant the School Defendants’ motion to dismiss because
Plaintiff fails to sufficiently allege that the School Defendants deprived Plaintiff of
her substantive due process rights. To examine whether Plaintiff states a valid claim,
the Court must consider (1) whether Plaintiff makes a substantive or procedural due
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process argument, (2) whether the School Defendants’ actions are executive or
legislative, and (3) whether Plaintiff pled sufficient facts to show that the School
Defendants violated her fundamental parental rights.
Initially, Plaintiff argues substantive, not procedural, due process violations
because parental rights are fundamental rights, the alleged violation is complete, and
Plaintiff seeks only monetary relief. McKinney v. Pate, 20 F.3d 1550, 1555-58 (11th
Cir. 1994), abrogated on other grounds as recognized by Littlejohn v. Sch. Bd. of Leon
Cnty., Fla., 132 F.4th 1232, 1240 (11th Cir. 2025). 	Substantive due process claims
differ from procedural claims in three ways. First, the substantive aspect of the Due
Process Clause protects an individual’s fundamental rights while the procedural
component 	protects 	individuals 	against 	the 	deprivation 	of 	rights 	by 	illegal
procedures. 	Id. at 1556-57. 	Second, a “violation of a substantive due process right
. . . is complete when it occurs; hence, the availability . . . of an adequate post-
deprivation state remedy is irrelevant.” 	Id. 	By contrast, a procedural due process
violation is complete “only when the state refuses to provide a process sufficient to
remedy the procedural deprivation[.]” 	Id. at 1557. 	Finally, “[i]n substantive due
process cases, the claimant seeks compensatory damages for the value of the deprived
right.” 	Id. 	However, in procedural due process cases, the plaintiff primarily seeks
equitable relief. Id.
Applying these considerations, the Court finds that Plaintiff attempts to assert
a substantive due process claim when she alleges a violation of her parental rights,
first, because the Supreme Court has long recognized that parental rights are valid
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liberty interests protected by substantive due process. 	See Troxel v. Granville, 530
U.S. 57, 65-66 (2000) (collecting cases and explaining that the Due Process Clause
protects the right to direct the education and upbringing of one’s children). Although
Plaintiff 	alleges 	that 	the 	School 	Defendants 	enrolled 	Davis 	in 	school 	without
Plaintiff’s permission, Plaintiff’s primary argument is that the School Defendants
deprived her of her parental right to make important decisions concerning her
daughter’s 	education, 	rather 	than 	the 	School 	Defendants 	following 	incorrect
procedures. 	In fact, nowhere in the Complaint does Plaintiff allege that the School
Defendants’ actions deprived Plaintiff of her constitutional procedural process.
Next, Plaintiff’s claims are based in substantive due process because any
alleged violation of her parental rights would have been “complete” when the School
Defendants enrolled Davis at Taylor County High School; no amount of process could
restore Plaintiff’s right to make the decision about Davis’s enrollment. McKinney, 20
F.3d at 1557. 	If the School Defendants disenrolled Davis, it would not remedy the
alleged violation of Plaintiff’s right to make the decision about her daughter’s
education because, at one point in time, the School Defendants, not Plaintiff, made
the decision to enroll Davis.
Additionally, for the alleged violation to be complete under procedural due
process, the School Defendants would have had to refuse Plaintiff the correct process.
Here, the process requires an opportunity to refuse consent to Davis’s enrollment at
school. 	Id. 	However, the School Defendants did, in fact, provide Plaintiff with an
opportunity to express her opposition when Plaintiff met with Defendants Starling
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and Albritton the day before the School Defendants enrolled Davis. 	Compl. Attach.
1, at 5, 7. Therefore, Plaintiff has no viable procedural due process claim.
Finally, Plaintiff’s claims sound in substantive due process because she seeks
only monetary damages and not equitable relief. McKinney, 20 F.3d at 1557. Plaintiff
seeks $2,060,000 in compensatory and punitive damages but does not pursue
disenrollment or any other type of equitable relief. 	Compl. Attach. 1, at 28. 	As a
result, Plaintiff alleges substantive, not procedural, due process claims.
Having determined that Plaintiff alleges substantive claims, the Court finds
that Plaintiff fails to state a substantive due process claims because Plaintiff does not
plead enough facts to show egregious conduct on behalf of the School Defendants.
“To state a substantive due process claim, a plaintiff must allege (1) a deprivation of
a constitutionally protected interest, and (2) that ‘the deprivation was the result of
an abuse of governmental power sufficient to raise an ordinary tort to the stature of
a constitutional violation.’” Hoefling v. City of Miami, 811 F.3d 1271, 1282 (11th Cir.
2016) (citation omitted).
For the Court to determine whether the conduct qualifies as a constitutional
violation, it must first consider whether the governmental action is legislative or
executive in nature. Here, the School Defendants’ actions are executive because the
school officials made administrative decisions regarding one individual’s enrollment
and they did not create or enact any rules or regulations. See Littlejohn, 132 F.4th,
at 1242 (“[A]n ‘administrative decision’ that affects only a limited class of persons is
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a textbook executive act.). 	Because the parties do not dispute the nature of
Defendants’ decision, the Court focuses its analysis on the second prong of this test.
Next, “even if a plaintiff alleges that executive action violated a fundamental
right, the plaintiff must first show that the action ‘shock[ed] the contemporary
conscience.’” Littlejohn, 123 F.4th at 1240 (alteration in original) (citation omitted).
“[C]onduct intended to injure in some way unjustifiable by any government interest
is the sort of official action most likely to rise to the conscience-shocking level.” Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). “Only the most egregious conduct
is sufficiently arbitrary to constitute a substantive due process violation.” Waldman
v. Conway, 871 F.3d 1283, 1292 (11th Cir. 2017).
An example of conscience-shocking behavior is a coach—using a metal lock to
punish a student—deliberately hitting the student in the eye and causing permanent
blindness. 	Id. at 1293. 	However, since 2000, the Eleventh Circuit has “repeatedly
rejected claims of ‘conscience-shocking’ conduct in educational settings.” 	Littlejohn,
132 F.4th at 1244. 	For example, the Eleventh Circuit did not find a student dying
from electric shock after touching a live wire during a class demonstration sufficiently
conscience-shocking. 	Id. 	Indeed, recklessness or deliberate indifference is not
enough. Instead, something more like malicious conduct or obviously excessive force
is required. Id.
Under this difficult-to-obtain standard, the actions of the School Defendants
do not shock the conscience because enrolling a seventeen-year-old in school as an
unaccompanied minor without a parent’s permission is not malicious and does not
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approach the most egregious conduct. 	Waldman, 871 F.3d at 1292. 	In fact, under
Georgia law, persons aged sixteen years or older are not even required to attend
school. 	O.C.G.A § 20-2-690.1(a). 	Thus, it is not shocking that Davis, a seventeen-
year-old who legally was not required to attend school, was allegedly enrolled in
school without a parent’s consent, especially in light of the fact that Davis asked to
be enrolled in that school. Further, enrolling a seventeen-year-old without a parent’s
permission falls well short of the violent and egregious conduct that the Eleventh
Circuit has deemed to be conscience shocking in the past, such as hitting a student
in the eye with a metal lock and causing permanent blindness. In fact, Plaintiff never
alleges that the School Defendants acted with malice. As a result, the Court should
grant the School Defendants’ motion to dismiss because Plaintiff has failed to state
substantive due process claims.
b. 	Procedural Due Process
Plaintiff includes documents that may be construed to include allegations that
the 	School 	Defendants 	violated 	Plaintiff’s 	procedural 	due 	process 	rights 	by
“[un]lawful registration of [Davis] at Taylor County High School” and violating “The
Code of Ethics for Educators[.]” Compl. Attach. 2, at 1, ECF No. 1-2; Compl. Attach.
3, at 4. But the Court recommends that any procedural due process claims be
similarly dismissed for failure to state a claim because Plaintiff does not contend that
the 	School 	Defendants 	acted with 	constitutionally 	inadequate 	process, 	and as
discussed below, Plaintiff was provided and exercised pre- and post-deprivation
process.
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To show a procedural due process violation under § 1983 a plaintiff must allege
“(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state
action; and (3) constitutionally-inadequate process.” 	Yarbrough v. Decatur Hous.
Auth., 941 F.3d 1022, 1026 (11th Cir. 2019). The first two elements are not at issue
because Plaintiff’s asserted parental rights are liberty interests protected under the
Due Process Clause, see Troxel, 530 U.S. at 66, and the enrollment of Davis qualifies
as state action because the School Defendants are state actors.
Plaintiff wholly fails to allege a procedural due process claim. She fails to state
that either there was not a constitutionally adequate process or that they did not
provide her with any process she was due. In fact, Plaintiff alleges that Defendants
gave her an opportunity to be heard prior to enrolling Davis. Compl. Attach. 1, at 5,
7; 	see 	Mathews 	v. 	Eldridge, 	424 	U.S. 	319, 	333 	(1976) 	(explaining 	that 	the
“fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner’”). 	Plaintiff merely alleges that
Defendants failed to follow the Code of Ethics for Educators. 	See generally Compl.
Attach 3. Such an allegation does not give rise to a constitutional violation; thus, her
claims should be dismissed.
c. 	Equal Protection Claim
Plaintiff also alleges that Defendant McCrary violated Plaintiff’s Fourteenth
Amendment equal protection rights by deliberately discriminating against Plaintiff.
Compl. Attach. 1, at 11. 	The School Defendants argue that Plaintiff’s claim should
be dismissed for failure to state a claim. 	Sch. Defs.’ Br. 11-12. 	The Court agrees.
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“The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
which is essentially a direction that all persons similarly situated should be treated
alike.” 	City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)
(citation omitted). 	Under § 1983, “to properly plead an equal protection claim, a
plaintiff need only allege that through state action, similarly situated persons have
been treated disparately.” Thigpen v. Bibb Cnty., Ga., Sheriff’s Dep’t, 223 F.3d 1231,
1237 (11th Cir. 2000) abrogated on other grounds by Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 (2002).
Plaintiff fails to state a claim because Plaintiff states in a conclusory manner
that Defendant McCrary deliberately discriminated against her, but Plaintiff fails to
provide any facts that show how Defendant McCrary treated others, similarly
situated to Plaintiff, differently. 	Compl. Attach. 1, at 11. 	Because Plaintiff did not
plead a necessary element to state an equal protection claim, the Court should grant
the School Defendants’ motion to dismiss.
2. 	Defendants Norris Smith and Cathy Lowe
Plaintiff 	alleges 	that 	Defendants 	Smith 	and 	Low 	“conspired 	with 	State
officials” by filing affidavits in Davis’s emancipation proceedings. Compl. Attach. 1,
at 2, 15, 17-18. 	The Court should grant Defendants Smith and Lowes’ motions to
dismiss Plaintiff’s § 1983 claims because, as discussed below, Plaintiff has not
plausibly alleged that Defendants Smith and Lowe acted under color of state law.
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“To state a claim for relief under section 1983, a plaintiff must allege that a
person acting under color of state law deprived [her] of a federal right.” McIndoo v.
Broward Cnty., 750 F. App’x. 816, 819 (11th Cir. 2018). 	To show that a private
individual acted under color of state law, a plaintiff must demonstrate that the
individual “exercised power ‘possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law.’” 	West v. Atkins,
487 U.S. 42, 49 (1988) (citation omitted). “Only in rare circumstances can a private
party be viewed as a ‘state actor’ for section 1983 purposes.” 	Harvey v. Harvey, 949
F.2d 1127, 1130 (11th Cir. 1992).
In this Circuit, a private individual qualifies as a state actor only if one of the
following conditions is met:
(1) the State has coerced or at least significantly encouraged the action
alleged to violate the Constitution (“State compulsion test”); (2) the
private parties performed a public function that was traditionally the
exclusive prerogative of the State (“public function test”); or (3) “the
State had so far insinuated itself into a position of interdependence with
the [private parties] that it was a joint participant in the enterprise[]”
(“nexus/joint action test”).
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001) (alterations
in original) (quoting NBC, Inc. v. Commc’ns Workers of Am., 860 F.2d 1022, 1026-27
(11th Cir. 1988)).
The relevant test to determine whether Defendants Smith and Lowe can be
considered state actors is the nexus/joint action test because Plaintiff does not allege
that the State encouraged the action or that Defendants Smith and Lowe performed
a public function. 	See Rocha-Jamarillo v. Madrigal, 727 F. Supp. 3d 1370, 1390-91
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(M.D. Ga. 2024). Under the nexus/joint action test, “a plaintiff must allege that the
governmental 	body 	and 	the 	private 	party 	were 	‘intertwined 	in 	a 	symbiotic
relationship,’ and that symbiotic relationship must involve ‘the specific conduct of
which the plaintiff complains.’” Id. (quoting Rayburn, 241 F.3d at 1348). “[P]rivate
conduct is fairly attributable only when the [S]tate has had some affirmative role,
albeit one of encouragement short of compulsion, in the particular conduct underlying
a claimant’s civil rights grievance.” Rayburn, 241 F.3d at 1348 (second alteration in
original) (emphasis omitted).
Plaintiff’s conclusion that Defendant Smith “conspired with state officials” is
insufficient to show that Smith acted under color of state law. 	Compl. Attach. 1, at
2; see Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)
(explaining 	that 	“legal 	conclusions 	masquerading 	as 	facts 	will 	not 	prevent
dismissal.”). Likewise, Plaintiff’s contention that Defendant Lowe “acted jointly with
state actors” and “enable[ed] the unlawful enrollment of Plaintiff’s daughter” are
legal conclusions that are not sufficient to preclude dismissal. 	Pl.’s Resp. to Lowe
Mot. to Dismiss 3-4, ECF No. 48; Oxford Asset Mgmt., 297 F.3d at 1188. Additionally,
Plaintiff’s factual assertion that Defendant Lowe “possess[ed] a close personal
relationship with the court clerk and school principal” is an insufficient factual
allegation because Plaintiff fails to show how Defendant Lowe’s close relationship to
the state actors impacts the State’s “affirmative role” in compelling Defendant Lowe
to do anything.3 Pl.’s Resp. to Lowe Mot. to Dismiss 3-4. More significantly, Plaintiff
3 Although Plaintiff stated the facts in her Response to Defendant Lowe’s motion to dismiss, the Court
nevertheless considers the facts in order to liberally construe Plaintiff’s pro se complaint.
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argues that Defendant Lowe acted in concert with others to encourage the State to
enroll Davis at Taylor County High School, not the other way around. Compl. Attach.
1, at 17-18.
Plaintiff fails to allege any facts showing that Defendants Smith and Lowe are
state actors under the nexus/joint action test because Plaintiff has not alleged that
the State had an affirmative role in encouraging Defendant Smith or Lowe to submit
the false statements in the emancipation proceedings. 	Therefore, Plaintiff fails to
state a claim upon which relief can be granted, and Defendants Smith and Lowes’
motions to dismiss should be granted.
II. 	Family Educational Rights and Privacy Act
Next, 	Plaintiff 	alleges 	that 	Defendant 	Starling 	violated 	FERPA 	by
misrepresenting Davis as an unaccompanied minor. Compl. Attach. 1, at 6. Plaintiff
also contends that Defendant Albritton violated FERPA by “improperly accessing and
using educational records[.]” 	Id at 9. 	Finally, Plaintiff asserts that Defendant
McCrary violated FERPA when Defendant McCrary falsified student records by
listing Davis’s biological father’s address as Davis’s primary residence, despite Davis
having never lived there. Id. at 11.
The School Defendants contend that Plaintiff’s FERPA claims should be
dismissed because FERPA does not provide a private right of action. Sch. Defs.’ Br.
12-13. The Court agrees. In this context, to assert a claim under § 1983, a plaintiff
must show that their claim is based on a statutory violation. Gonzaga Univ. v. Doe,
536 	U.S. 	273, 	284 	(2002). 	Thus, 	a 	statute 	must 	create 	“rights, 	privileges, 	or
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immunities” in the plaintiff to be actionable. 	Id. at 285. 	In Gonzaga, the Supreme
Court held that a private citizen could not bring an action under § 1983 to enforce
provisions of FERPA because Congress never intended to create an individual right
of action under it. 	Id. at 287. 	Consequently, Plaintiff has no legal grounds for her
FERPA 	claims, 	and 	the 	Court 	recommends 	that 	Plaintiff’s 	FERPA 	claims 	be
dismissed.
III. 	State Law Claims
Plaintiff contends that Defendant Smith “committed defamation” by signing
and submitting an affidavit containing false and defamatory statements against
Plaintiff as part of Davis’s emancipation proceeding. 	Compl. Attach. 1, at 15-16.
Defendant Smith argues that any state law claims against him should be dismissed
because: (1) Plaintiff fails to allege malice which is an element of her defamation
claim; (2) Defendant Smith’s statement is absolutely privileged under Georgia law;
and (3) Plaintiff’s claims do not contain a short and plain statement showing that
Plaintiff is entitled to relief. Smith Br. 6-7, 9.
The Court agrees that Defendant Smith’s statement is absolutely privileged.
Under Georgia law, “[a]ll charges, allegations, and averments contained in regular
pleadings filed in a court of competent jurisdiction, which are pertinent and material
to the relief sought, whether legally sufficient to obtain it or not, are privileged.”
O.C.G.A. § 51-5-8. Notably, “[h]owever false and malicious such charges, allegations,
and averments may be, they shall not be deemed libelous.” Id.
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Considering this same statutory privilege under Georgia law, the Eleventh
Circuit found that “absolute immunity applies to ‘official court documents and acts of
legal process[.]’” Mack v. Delta Air Lines, Inc., 639 F. App’x. 582, 586 (11th Cir. 2016)
(citation omitted) (affirming the dismissal of state-law libel claim because the
statements were made in a quasi-judicial proceeding and were absolutely privileged
under O.C.G.A. § 51-5-8). Defendant Smith’s statement was made in an official court
document because the document was filed in Taylor County Superior Court in support
of Davis’s emancipation. Defendant Smith’s statement is also pertinent and material
to the relief sought because Plaintiff seeks damages for the alleged emotional pain
and suffering and alleged damage to her reputation that Defendant Smith’s “false
and defamatory statements” caused her. Compl. Attach. 1, at 15, 28. Therefore, the
Court recommends Defendant Smith’s motion to dismiss be granted.
Alternatively, it is recommended that if the Court dismisses the federal claims
against 	Defendant 	Smith, 	the 	Court 	should 	decline 	to 	exercise 	supplemental
jurisdiction over the state law claim against Defendant Smith. Parker v. Scrap Metal
Processors, Inc., 468 F.3d 733, 743 (11th Cir. 2006) (holding that the district court
has discretion not to exercise supplemental jurisdiction over state law claims if the
district court has dismissed all claims over which it has original jurisdiction).
Consequently, 	this 	Court 	declines 	to 	discuss 	Defendant 	Smith’s 	additional
arguments.
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IV. 	Criminal Claims
Finally, Plaintiff contends that Defendant Lowe committed (1) conspiracy
under 18 U.S.C. § 371, (2) false statements under 18 U.S.C. § 1001, (3) mail fraud
under 18 U.S.C. § 1341, (4) wire fraud under 18 U.S.C. § 1343, (5) perjury under
18 U.S.C. § 1621, and (6) subornation of perjury under 18 U.S.C. § 1622 by submitting
false statements to the Taylor County Superior Court in Davis’s emancipation
proceeding. 	Compl. Attach. 1, at 19-20. 	However, “[c]riminal statutes generally do
not provide a private cause of action.” Chen ex rel. V.D. v. Lester, 364 F. App’x. 531,
536 (11th Cir. 2010). 	Instead, for a criminal statute to provide a private right of
action, the Court must determine whether Congress intended for the statute to
“create not just a private right but also a private remedy.” 	Love v. Delta Air Lines,
310 F.3d 1347, 1352 (11th Cir. 2002).
To 	determine 	Congress’ 	intent, 	the 	Court 	observes 	whether 	the 	statute
includes rights-creating language which “explicitly confer[s] a right directly on a class
of persons that include[s] the plaintiff in a case,” or “identif[ies] ‘the class for whose
especial benefit the statute was enacted.’” Id. (second alteration in original) (citations
omitted). The Court also examines if the statutory structure provides a discernable
enforcement mechanism. Id. at 1353. Lastly, only if the “statutory text and structure
have not conclusively resolved whether a private right of action should be implied,
[the Court] turn[s] to the legislative history and context within which a statute was
passed.” Id.
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None of the criminal statutes that Plaintiff alleges Defendant Lowe violated
create private rights of action. 	Initially, 18 U.S.C. § 371 does not create a private
right of action because it “criminalizes the act of conspiring to commit a crime against
the United States; it does not create a cause of action for individuals alleging
conspiracy.” 	Bey ex rel. Graves v. Richmond Redevelopment & Hous. Auth., No.
3:13CV464-HEH, 2013 WL 4066945, at *5 (E.D. Va. Aug. 9, 2013); see also Davis v.
City of New York, No. 5:21-cv-156-TES, 2021 WL 1820645, at *3 (M.D. Ga. May 6,
2021). 	Likewise, 18 U.S.C. §§ 1001, 1621, and 1622 do not provide private rights of
action because they are criminal in nature and pertain to violations against the
United States, not individuals. See Waverly v. Emory Healthcare, Inc., No. 4:13-CV-
142 (CDL), 2013 WL 5755596, at *3 (M.D. Ga. Oct. 23, 2013); Edwards v. Edwards,
No. 4:23-CV-4106-LLP, 2023 WL 7305026, at *9 (D.S.D. Nov. 6, 2023). 	Finally, 18
U.S.C. §§ 1341 and 1343 do not contain private rights of action because each statute
is purely penal and does not provide civil damages. See Am. Gen. Life and Accident
Ins. Co. v. Ward, 509 F. Supp. 2d 1324, 1335 (N.D. Ga 2007); see also Holtz v.
Harpagon Co., LLC, No. 1:09-cv-3085-JOF, 2010 WL 2595075, at *5 (N.D. Ga. June
25, 2010). Consequently, the Court should grant Defendant Lowe’s motion to dismiss.
CONCLUSION
For 	the 	foregoing 	reasons, 	IT 	IS 	RECOMMENDED 	that 	the 	School
Defendants, Defendant Smith, and Defendant Lowe’s motions to dismiss (ECF Nos.
21, 	22, 28, 46) 	be 	GRANTED 	and that 	Plaintiff’s 	claims against 	the 	School
Defendants, Defendant Smith and Defendant Lowe be DISMISSED. 	Pursuant to
28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this
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Recommendation or seek an extension of time to file objections within fourteen (14)
days after being served with a copy hereof. 	Any objection should be no longer than
TWENTY (20) PAGES in length. 	See M.D. Ga. L.R. 7.4. 	The district judge shall
make a de novo determination of those portions of the Recommendation to which
objection is made. 	All other portions of the Recommendation may be reviewed for
clear error.
The parties are hereby notified that pursuant to Eleventh Circuit Rule 3-1, “[a]
party failing to object to a magistrate judge’s findings or recommendations contained
in a report and recommendation in accordance with the provisions of 28 U.S.C. §
636(b)(1) waives the right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions if the party was informed of the time
period for objecting and the consequences on appeal for failing to object. 	In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.”
SO RECOMMENDED, this 3rd day of December, 2025.
s/ Amelia G. Helmick
UNITED STATES MAGISTRATE JUDGE
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