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McDaniel v. Precythe

United States Court of Appeals, Eighth Circuit

July 27, 2018

Christopher S. McDaniel, Plaintiff- Appellee,
v.
Anne Precythe, Defendant-Appellant.

          Submitted: November 14, 2017

          Appeal from United States District Court for the Western District of Missouri - Jefferson City

          Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES, [1] District Judge.

          COLLOTON, Circuit Judge.

         Christopher McDaniel sued the Director of the Missouri Department of Corrections, alleging that the Director's procedures for inviting citizens to witness executions violate McDaniel's rights under the Due Process Clause of the Fourteenth Amendment. The Director moved to dismiss McDaniel's claim on the grounds that McDaniel lacks standing and that the Director is immune from suit under the Eleventh Amendment. The district court[2] denied the motion, and the Director appeals. We affirm.

         I.

         Because this appeal arises from the denial of a motion to dismiss, we accept as true the well-pleaded allegations in the complaint. The following factual account is derived from McDaniel's complaint.

         Missouri law requires the Director of the Department of Corrections to invite "at least eight reputable citizens," in addition to the state attorney general, to witness each Missouri execution. Mo. Rev. Stat. § 546.740. The relevant statute provides that "no person under twenty-one years of age shall be allowed to witness the execution," but does not otherwise restrict the Director's discretion. Id. The Department of Corrections has no policy governing how the Director decides whom to invite as witnesses, and the selection of witnesses is left to the unfettered discretion of the Director.

         Director George Lombardi employed certain procedures in connection with the selection of witnesses. A person who seeks to witness an execution must submit an application form published by the Department. The form requests basic personal information and criminal history, and then asks the applicant to "[e]xplain why you are requesting to be a witness to an execution in the State of Missouri." The form also inquires as follows: "Are you, or have you ever been, a member of any group or organization opposed to, or in support of, the death penalty?" If so, the applicant must "list the names of the organization(s)."

         McDaniel is an investigative journalist who formerly reported for St. Louis Public Radio and now works as a death penalty reporter for BuzzFeed News. As part of his work, McDaniel has written several articles criticizing Missouri's execution practices. In January 2014, McDaniel submitted an application to witness a Missouri execution as an employee of St. Louis Public Radio. In response to the form's instruction, McDaniel explained that he was seeking to witness a Missouri execution "[t]o ensure that this solemn task is carried out constitutionally." The Department of Corrections never responded to McDaniel's request, and the Director did not invite McDaniel to witness any of Missouri's seventeen subsequent executions.

         In August 2016, McDaniel sued Director Lombardi in his official capacity under 42 U.S.C. § 1983. The complaint alleges that the Director violated the Due Process Clause because his "policies and customs related to the selection of execution witnesses" give the Director "unbridled discretion to deny an adult citizen the benefit of serving as an execution witness based on the individual's viewpoint, expressive or press activity, or membership in a church or other organization." In other words, the complaint alleges that the Director's policies "provide the opportunity for discrimination based on viewpoint or retaliation for First Amendment protected activity." In support of this claim, the complaint alleges that "every applicant who, like [McDaniel], expressed a desire to ensure that execution[s] were carried ou[t] properly and constitutionally was denied the opportunity to witness an execution." The complaint seeks an injunction requiring the Director to establish a policy governing the selection of execution witnesses.

         The Director moved to dismiss the complaint, arguing that McDaniel lacked standing to bring his challenge, because he had not suffered an injury in fact. The Director also asserted that he was immune from suit under the Eleventh Amendment. The district court denied the motion because it concluded that McDaniel had suffered an injury and that the Director was not immune from a suit for injunctive relief under the rule established in Ex parte Young, 209 U.S. 123 (1908).

         The Director filed notice of an interlocutory appeal on the question of immunity under the Eleventh Amendment. Anne Precythe then succeeded Lombardi as Director, and she was substituted as the appellant. See Fed. R. App. P. 43(c)(2). The Director now reasserts that McDaniel lacks standing and that she is immune from suit under the Eleventh Amendment. In addition, Director Precythe argues that the case is moot because ...


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