Unpublished Dispositionluther v. Myles, Iii, Plaintiff-appellant, v. Mrs. King; Mrs. Beeker, Defendants-appellees, 899 F.2d 1222 (6th Cir. 1990)

ORDER

Luther V. Myles, III, a Michigan resident, requests the appointment of counsel on appeal from the dismissal of his cause of action. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Myles sued the defendants, employees of the Michigan Department of Social Services, for monetary damages for emotional distress. He alleged that defendants had failed to timely investigate reports that his ex-wife was neglecting their daughter. He further alleged that defendants had misrepresented his criminal history in a custody proceeding in an attempt to show that he presented a danger to his daughter. The district court granted defendants' motion to dismiss, based on lack of subject matter jurisdiction.

Upon consideration, we conclude that this case was properly dismissed. The Supreme Court has held that there is no constitutional duty for the state to protect individuals not in state custody from harm by private actors, and that such claims at most state a claim under state tort law. DeShaney v. Winnebago County Dep't of Social Services, 109 S. Ct. 998, 1006-07 (1989). Claims of defamation by a state official have also been held to invoke only state tort law. Paul v. Davis, 424 U.S. 693, 712 (1976). Thus, neither of plaintiff's claims vested the district court with subject matter jurisdiction.

Accordingly, the request for counsel is denied, and the district court's order is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.