     Case: 15-20121      Document: 00513178808         Page: 1    Date Filed: 09/02/2015




                        REVISED September 2, 2015

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-20121                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        September 1, 2015
JOAN STUKES; JOHN STUKES,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiffs - Appellants

v.

TROY NEHLS; JESSIP MURPHY; JERRET NETHERY; OFFICER TERRY
ROBERTSON; WILLIAM WORSHAM; JILLIAN SMITH; LEAH SMITH;
BRAD SMITH,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-1862


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 15-20121
      John and Joan Stukes (“The Stukeses”) appeal the district court’s sua
sponte dismissal of their complaint with prejudice. For the following reasons,
we AFFIRM.


                                  BACKGROUND
      On July 3, 2014, the Stukeses brought suit against eight individual
defendants - their neighbors and neighbors’ niece, and five members of the Fort
Bend County Sheriff’s Office - after an Independence Day celebration ended
with Mrs. Stukes’ arrest.
      Prior to Mrs. Stukes’ arrest, Mr. Stukes walked his neighbor, Leah
Smith, home. Both had enjoyed an evening of drinking to the point of
intoxication. Unbeknownst to Mr. Stukes, a fall from earlier in the evening had
left his face cut and bloodied. Noticing Mr. Stukes’ injury upon his and Leah’s
arrival, the Smith’s niece, Jillian, speculated that Mrs. Stukes was the cause.
Consequently, she phoned 911. Various law enforcement officers arrived and
searched the Stukeses’ home. Their search led to the arrest of Mrs. Stukes,
who alleged she sustained significant, substantial, and severe injuries as a
result. Based on these allegations, the Stukeses brought a defamation claim
against Brad and Leah Smith (“the Smiths”), and a separate claim for violation
of their constitutional rights against representatives of the sheriff’s office.
      The district court ordered the Stukeses to serve all defendants within
sixty days. Six months after commencing suit, the Stukeses served only the
Smiths. 1 On January 9, 2015, the district court sua sponte dismissed all of the
Stukeses claims with prejudice for, inter alia, failure to state a claim.




      1 During a November 12, 2014, pretrial conference the Stukeses informed the district
court they had no intention of ever serving the six remaining defendants. Therefore, the
Smiths remain the only parties involved in this appeal.
                                            2
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                                      No. 15-20121
                             STANDARD OF REVIEW
       We review the dismissal of a complaint for failure to state a claim de
novo. Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir.
2011). The complaint must “allege sufficient facts that, taken as true, state a
claim that is plausible on its face.” Id. The allegations must be sufficient “to
raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although we accept all well-
pleaded facts as true and view those facts in the light most favorable to the
plaintiff, Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009), we do not “accept
as true conclusory allegations, unwarranted factual inferences, or legal
conclusions,” Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). If the
plaintiff fails to allege facts sufficient to “nudge [his] claims across the line
from conceivable to plausible, [his] complaint must be dismissed.” Twombly,
550 U.S. at 1974.
                                     DISCUSSION
       We determine a single issue on this appeal: whether the Stukeses’
defamation claim, as pleaded, warrants dismissal. 2
       Under Texas law, to maintain a defamation claim, a plaintiff must state
facts showing that the defendant (1) published a statement (2) that was
defamatory concerning the plaintiff (3) while acting with negligence regarding
the truth of the statement. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571
(Tex. 1998). The district court determined the Stukeses failed to meet the
necessary elements for maintaining a defamation claim. We agree.




       2 To the extent that the Stukeses seek to appeal the district court’s dismissal of any
claims asserted against parties other than Brad and Leah Smith, they are foreclosed from
doing so because they expressly abandoned the claims before the district court.
                                             3
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                                    No. 15-20121
         The Stukeses’ insufficient pleading fails to state any facts informing the
Smiths of the grounds for their defamation claim. Their complaint fails to
identify any specific defamatory statements allegedly made by the Smiths. In
fact, their complaint fails to squarely identify the speaker of the alleged
defamatory statement. The Stukeses’ mere recital of the elements of a
defamation claim supported only by their conclusory allegations simply does
not survive the dismissal stage. See Ashcroft v. Iqbal, 129 S.Ct. 1937.
         The Stukeses improperly rely upon all of this matter’s participants –
including this court – to glean their complaint in support of satisfaction of their
pleading burden. This is not the standard. Accordingly, we conclude that the
district court’s finding that the Stukeses “claims are without facts or law to
support them” and subsequent dismissal of their defamation claim was not in
error.
         For these reasons, we AFFIRM the district court’s dismissal of the
Stukeses’ claims.




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