Christopher S. McDaniel, Plaintiff- Appellee,
Anne Precythe, Defendant-Appellant.
Submitted: November 14, 2017
from United States District Court for the Western District of
Missouri - Jefferson City
COLLOTON and GRUENDER, Circuit Judges, and HOLMES,  District
COLLOTON, Circuit Judge.
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 denied the
motion, and the Director appeals. We affirm.
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
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.
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)."
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.
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
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).
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 ...