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Dillard v. City of Springdale

United States District Court, W.D. Arkansas, Fayetteville Division

September 29, 2017

JILL DILLARD; JESSA SEEWALD; JINGER VUOLO; and JOY DUGGAR PLAINTIFFS
v.
CITY OF SPRINGDALE, ARKANSAS; WASHINGTON COUNTY, ARKANSAS; KATHY O'KELLEY, in her individual and official capacities; ERNEST CATE, in his individual and official capacities; RICK HOYT, in his individual and official capacities; STEVE ZEGA, in his official capacity; BAUER PUBLISHING COMPANY, LP.; BAUER MAGAZINE, LP.; BAUER MEDIA GROUP, INC.; BAUER, INC.; HEINRICH BAUER NORTH AMERICA, INC.; BAUER MEDIA GROUP USA, LLC; and DOES 1-10, inclusive DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Currently before the Court are:

• The Motion to Dismiss (Doc. 21) and Brief in Support (Doc. 22) filed by Defendants City of Springdale ("the City"), Ernest Cate in his official and individual capacities, and Kathy O'Kelley in her official and individual capacities (collectively, "the Springdale Defendants"); the Response in Opposition (Doc. 32) filed by Plaintiffs Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar; and the Reply (Doc. 38) filed by the Springdale Defendants; and
• The Motion to Dismiss (Doc. 29) and Brief in Support (Doc. 30) filed by Defendants Washington County ("the County"), Rick Hoyt in his official and individual capacities, and Steve Zega in his official capacity (collectively, "the Washington County Defendants"), and the Response in Opposition (Doc. 36) filed by the Plaintiffs.

         For the reasons given below, both Motions are GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         The Plaintiffs, who are all sisters, filed this lawsuit on May 18, 2017. See Doc. 1, ¶ 2. In their Complaint, they allege that in December 2006, while they were all under the age of 16, they and their parents were interviewed during a police investigation ("the Investigation") involving allegations that they had been sexually assaulted by their brother, Josh Duggar. See Id. The police investigators conducting the interviews promised all of them that their statements would remain confidential and not be publicized. See Id. The contents of these interviews were documented in a Springdale Police Department official Offense Report, and in a Washington County Sheriffs Office official Incident Report. See Id. Afterwards, the Washington County prosecutor's office filed a Family In Need of Services ("FINS") petition, pursuant to a request by the Springdale Police Department, but no charges were ever brought against Josh Duggar.

         Nearly a decade later, while the Duggar family was starring in a national reality-television show, see Id. at ¶¶ 51, 124, Defendants Bauer Publishing Company, L.P., Bauer Magazine, L.P., Bauer Media Group, Inc., Bauer, Inc., Heinrich Bauer North America, Inc., and Bauer Media Group USA, LLC (collectively, "the Bauer Defendants"), became aware of the aforementioned investigation, and on May 15, 2015, began submitting Freedom of Information Act ("FOIA") requests to the City and the County, seeking copies of the Offense Report and Incident Report (collectively, "the Reports") along with any other documents relating to the Investigation, see Id. at ¶ 4. The Bauer Defendants operate a web and print media tabloid publication called "In Touch Weekly, " and on May 19, 2015, they caused an article to be published in it, naming Josh Duggar as the target of an "Underage Sex Probe, " and promising more details to come in future articles. See Id. at ¶ 51. The next day, the City released the Offense Report to In Touch Weekly, pursuant to the Bauer Defendants' FOIA request. See Id. at ¶ 56. The day after that, the County did likewise with its Incident Report. See Id. at ¶ 59. The individuals involved in the decision to release the Offense Report were Ms. O'Kelley (the Springdale Police Chief) and Mr. Cate (the-Gity Attorney), see Id. at ¶¶ 5, 56-57, and the individuals involved in the decision to release the Incident Report were Mr. Hoyt (an enforcement major at the Sheriffs office) and Mr. Zega (the County Attorney), see Id. at ¶¶ 6, 59. In Touch Weekly published both Reports and many articles about them, see Id. at ¶¶ 66, 72, 74, which were exposed to millions of people, see Id. at ¶ 69. Both reports were redacted, but nevertheless contained enough unredacted information to permit readers to discover that the Plaintiffs were among Josh Duggar's victims. See Id. at ¶¶ 58, 60.

         The Plaintiffs have brought a variety of tort and constitutional claims against the Springdale Defendants, the Washington County Defendants, and the Bauer Defendants. All of the Defendants have filed Motions to Dismiss under Fed.R.Civ.P. 12(b)(6). However, this Order is concerned only with the Motions to Dismiss filed by the Springdale Defendants and the Washington County Defendants. Both of those Motions have been fully briefed, and on September 25, 2017, the Court heard oral argument on them. Accordingly, both of those Motions are ripe for decision and will be taken up below.

         II. LEGAL STANDARD

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of this requirement is to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court must accept all of the Complaint's factual allegations as true, and construe them in the light most favorable to the plaintiff, drawing all reasonable inferences in the plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).

         However, the Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions]' devoid of 'further factual enhancement.'" Id. In other words, while "the pleading standard that Rule 8 announces does not require 'detailed factual allegations, ' ... it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Id.

         III. DISCUSSION

         Before diving into the weeds of the issues raised in these Motions to Dismiss, some general observations will streamline the analysis that follows. First, there is no effective difference between a suit for damages against an employee of a public entity in her official capacity and a suit for damages against the public entity itself. See Monell v. Dept of Social Servs. of City of N.Y., 436 U.S. 658, 690 n.55, 694 (1978). As a consequence, there is no effective difference between a suit for damages against one employee of a particular public entity in her official capacity and a suit for damages against a different employee of the same public entity in his official capacity; all are effectively suits for damages against the same public entity. Thus, while the Court will find it useful at times to refer to "the City official-capacity Defendants" or "the County official-capacity Defendants, " the reader should understand that for all practical purposes in this Order, these phrases are simply legalese for "the City" or "the County, " respectively. On the other hand, when the Court refers to a particular person as an "individual-capacity Defendant, " then the reader should understand that the Court is referring to claims for damages that are being made against that particular person's own pocketbook-not her employer's.

         Second, there are many Defendants in this case. Some of them are private-sector entities, and others are either public-sector entities or employees of public-sector entities. All of the Defendants have filed motions to dismiss. But this particular Order is only concerned with the motions to dismiss that have been filed by the public-sector entities and employees of public-sector entities. One consequence of that focus is that the doctrine of sovereign immunity looms large in this Opinion.

         Sovereign immunity is a doctrine that is older than this country. Traditionally, it amounted to the principle that one could not sue an emperor or king in his own courts. See, e.g., Alden v. Maine, 527 U.S. 706, 767 n.6 (1999) (Souter, J., dissenting); Seminole Tribe of Florida, v. Florida, 517 U.S. 44, 102-03 (1996) (Souter, J., dissenting). But it is also enshrined in the Eleventh Amendment to the United States Constitution, which "immunizes an unconsenting State from damage actions brought in federal court, except when Congress has abrogated that immunity for a particular federal cause of action." Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437, 1438 (8th Cir. 1996). And as it has been adapted to our federal system, the doctrine has acquired a lot of subtleties and exceptions over the years. Some of those turn, for example, on whether a particular public-sector defendant is an official-capacity defendant or an individual-capacity defendant. Others turn on whether the particular claim at issue is being brought under federal or state law. Still others turn-on whether an official-capacity defendant is a true arm of the state or merely an independent political subdivision. These nuances will be explored more fully below, but the Court mentions them now simply to provide context for what follows.

         Finally, the Plaintiffs' claims can be conceived generally as falling into two categories: claims that their constitutional rights were violated, and claims that torts were committed. For convenience, the Court will discuss the Plaintiffs' constitutional claims first. Then the Court will turn to the Plaintiffs' tort claims.

         A. Constitutional Claims

         The Plaintiffs claim that the Springdale and Washington County Defendants violated their Due Process rights under the Arkansas Constitution and under the Fourteenth Amendment to the United States Constitution, by disclosing the Reports and details of the Investigation to the Bauer Defendants. The Plaintiffs bring their federal constitutional claims under the Civil Rights Act of 1871, which authorizes, lawsuits against persons who, under color of law, have deprived someone of her "rights, privileges, or immunities secured by the Constitution and laws." See 42 U.S.C. § 1983. The State of Arkansas has a similar statute called the Arkansas Civil Rights Act of 1993 ("ACRA"), which authorizes lawsuits against persons who, under color of law, have deprived someone of her "rights, privileges, or immunities secured by the Arkansas Constitution."[1]See Ark. Code Ann. § 16-123-105(a).

         The reader has likely noticed the remarkable similarity of the language quoted from these two statutes. This is not an accident. Indeed, the ACRA explicitly states that "[w]hen construing this section, a court may look for guidance to state and federal decisions interpreting the Civil Rights Act of 1871, as amended and codified in 42 U.S.C. -§ 1983, " though it goes on to emphasize that such federal civil rights law is only "persuasive authority" rather than binding authority. See Id. at § 16-123-105(c).

         The Plaintiffs have brought both individual-capacity and official-capacity constitutional claims. As was mentioned earlier in this Opinion, there are different types of immunity analysis that pertain to these different capacities. Furthermore, there is Arkansas law regarding immunity from claims under the Arkansas Constitution, and federal law regarding immunity from claims under the federal Constitution. However, as will be explained below, it turns out that with respect to claims under the Arkansas Constitution, the Arkansas Supreme Court has interpreted the Arkansas statutes governing immunity in an identical manner to how federal law governs immunity from claims under the federal Constitution-with respect to both individual-capacity claims, as well as official-capacity claims. Thus, for analytical ease, in this Section, the Court will first address the Plaintiffs' individual-capacity claims under both the Arkansas and United States Constitutions, simultaneously. Then, the Court will address the Plaintiffs' official-capacity claims under both constitutions, again simultaneously.

         1. Individual-Capacity Constitutional Claims

         When a government official is sued in her individual capacity for violating someone's federal constitutional rights under color of law, then under the federal doctrine of qualified immunity, that official is immune from claims for damages arising from the alleged violation unless both of the following prongs are satisfied: (1) "the facts that a plaintiff has alleged ... make out a violation of a constitutional right"; and (2) "the right at issue was clearly established at the time of the defendant's alleged misconduct." See Pearson v. Callahan,555 U.S. 223, 232 (2009). When courts perform this qualified-immunity analysis, it is often preferable to ...


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