227 F. Supp. 3d 1032
W.D. Mo.2016Background
- McDaniel is an investigative reporter focused on the death penalty; he sought to witness a Missouri execution but received no response.
- Missouri law requires the DOC Director to invite at least eight reputable citizens to witness executions, but the DOC has no guiding policies or criteria.
- Plaintiff alleges lack of criteria enables viewpoint discrimination, violating the First Amendment, due to unbridled discretion in witness selection.
- Plaintiff applied in Jan. 2014 to witness an execution; he was denied without a stated reason or policy guidance.
- Defendant moved to dismiss for lack of standing, lack of subject-matter jurisdiction (Eleventh Amendment), and failure to state a claim; the court denies the motion.
- Court accepts Plaintiff’s factual allegations as true for purposes of the motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing and injury in fact | McDaniel has suffered injury in fact | No cognizable injury or standing | Plaintiff has injury in fact and standing |
| Eleventh Amendment and Ex parte Young | Official capacity suit seeks prospective relief | Balogh controls; no enforcement action by Lombardi | Ex parte Young applies; suit may proceed |
| 12(b)(6) failure to state a claim | Discretionary policies risk viewpoint discrimination | Insufficient allegations to show discrimination | Plaintiff plead plausible First Amendment claim of viewpoint discrimination |
Key Cases Cited
- Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (U.S. 1988) (unfettered discretion risks viewpoint discrimination; standards needed)
- Cuffley v. Mickes, 208 F.3d 702 (8th Cir. 2000) (template for evaluating discrimination in access to benefits)
- Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) (limits of Ex parte Young when official lacks enforcement authority)
- Wishnatsky v. Rovner, 433 F.3d 608 (8th Cir. 2006) (recognizes non-benefit harms may implicate First Amendment)
- Dorr v. Weber, 741 F.Supp.2d 1010 (N.D. Iowa 2010) (recognizes injury from denial of witness opportunity)
- Ex parte Young, 209 U.S. 123 (U.S. 1908) (permit suits against state officials for ongoing violations)