Cincinnati Enquirer v. Cincinnati Bd. of Educ.

• Decision Date: 11 February 2003
• Docket Number: No. C-l-02-775.,C-l-02-775.
• Parties: THE CINCINNATI ENQUIRER, A Division of Gannett Satellite Information Network, Inc., Plaintiff, v. CINCINNATI BOARD OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

Page 911

249 F.Supp.2d 911

THE CINCINNATI ENQUIRER, A Division of Gannett Satellite Information Network, Inc., Plaintiff, v. CINCINNATI BOARD OF EDUCATION, et al., Defendants.

No. C-l-02-775.

United States District Court, S.D. Ohio, Western Division.

February 11, 2003.

John Anthony Flanagan, John Charles Greiner, Graydon Head & Ritchey, Cincinnati, OH, for plaintiff.

Mark Joseph Stepaniak, Kerry Philip Hastings, Taft Stettinius & Hollister, Cincinnati, OH, for defendants.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Defendants' Motion to Dismiss for Failure to State a Claim (doc. 5), Plaintiffs Memorandum in Opposition (doc. 6), Defendants' Reply (doc. 7), Plaintiffs Motion to Submit Additional Authority (doc. 8), and Defendants' Response (doc. 9).

I. Background

This is a 42 U.S.C. § 1983 case in which Plaintiff, the Cincinnati Enquirer (hereinafter, "Enquirer"), alleges that Defendant Cincinnati School Board (hereinafter "Board") violated its constitutional rights when the Board refused to produce the resumes and other information pertaining to candidates for the position of Superintendent for the Cincinnati Public Schools and took steps to conceal such information (doc. 6). According to Plaintiff, Defendants conspired by using fictitious names and numbers on documents to conceal the identity of the candidates, by reimbursing candidates by cash rather than by check to avoid creating public documents, and by returning the candidates' resumes to the candidates, thus not retaining records (doc. 5). The Enquirer's October 24, 2002 Complaint alleges that Defendants violated its rights by 1) interfering with Plaintiffs right to gather news, 2) interfering with Plaintiffs right of access to public information regarding the functioning of government, and 3) by retaliating against the Enquirer for attempting to exercise such rights (doc. 1). Plaintiff seeks an order directing Defendants to refrain from further depriving it from its rights under the First Amendment, Ohio statutory law, and the common law; awards of costs, attorneys fees, and compensatory and punitive damages; and all other equitable relief to which it may be entitled (Id.).

On November 13, 2002, Defendants filed their Motion to Dismiss for Failure to State a Claim arguing that Plaintiffs Complaint fails to state a Section 1983 claim, and in the alternative, that the individual Defendants are entitled to qualified immunity (doc. 5). Defendants further argue that the Court should dismiss the Complaint's equitable claim based on abstention (Id,).

II. The Fed.R.Civ.P. 12(b)(6) Standard

A Rule 12(b)(6) motion to dismiss requires the Court to determine whether a cognizable claim has been pleaded in the complaint. The basic federal pleading requirement is contained in Fed.R.Civ.P. 8(a), which states that, a pleading "shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). In its scrutiny of the complaint, the Court must construe all well-pleaded facts liberally in favor of the party opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974). Rule 8(a)(2) operates to provide the defendant with "fair notice of what plaintiffs claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A court examines a complaint in light of the objectives of Rule 8 using the standard articulated in Jones v. Sherrill, 827 F.2d 1102, 1103 (6th Cir.1987):

In reviewing a dismissal under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint. Windsor v. The Tennessean, 719 F.2d 155, 158 (6^th Cir.1983), cert. denied, 469 U.S. 826, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984). The motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle her to relief. Id. at 158; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Jones, 827 F.2d at 1103.

The admonishment to liberally construe the plaintiffs claim when evaluating a Rule 12(b)(6) dismissal does not relieve a plaintiff of his obligation to satisfy federal notice pleading requirements and allege more than bare assertions of legal conclusions. Wright, Miller, Federal Practice and Procedure: § 1357 at 596 (1969). "In practice, a complaint ... must contain either direct or inferential allegations respecting all of the material elements [in order] to sustain a recovery under some viable legal theory." Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1758, 84 L.Ed.2d 821 (1985) (quoting In Re: Plywood Antitrust Litigation, 655 F.2d 627, 641 (5^th Cir.1981), cert. dismissed, 462 U.S. 1125, 103 S.Ct. 3100, 77 L.Ed.2d 1358 (1983)); see also Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 654 (7th Cir.1984); Wright, & Miller, Federal Practice and Procedure: § 1216 at 121-23 (1969). The United States Court of Appeals for the Sixth Circuit clarified the threshold set for a Rule 12(b)(6) dismissal:

[W]e are not holding the pleader to an impossibly high standard; we recognize the policies behind Rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, it seems fair to assume that those facts do not exist.

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 437 (6^th Cir. 1988).

III. Discussion

Defendants' Motion argues first that Plaintiffs Complaint should be dismissed for attempting to allege Ohio statutory and common law claims under Section 1983 (doc. 5). Defendants posit under Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) and Huron Valley Hospital, Inc. v. City of Pontiac, 887 F.2d 710 (6^th Cir.1989) that Section 1983 is limited to official violations of federal law and constitutional rights, and that remedies for state law violations must be sought in state court (Id,). Plaintiff responds that it has indeed alleged a violation of the First Amendment, citing authority for the proposition that it has a right to gather news, and a right of access to public information regarding the functioning of government (doc. 6). As the Court finds well-taken Defendants' argument that state law claims cannot serve as the basis for a Section 1983 Complaint, Neinast v. Bd. of Trustees of the Columbus Metropolitan Library, 190 F.Supp.2d 1040, 1047-48 (S.D.Ohio 2002) (following Huron Valley, Section 1983 "does not cover official conduct that allegedly violates state law."), the Court will analyze Plaintiffs position, that stripped of state law claims, there remains a First Amendment basis to its Complaint.

A. The Right to Gather News and to Access Public Information

Plaintiff argues that under the First Amendment there is a right for the press to gather news and to access government information (doc. 6). Defendant argues that the First Amendment is not a public records act, that the right to gather information, under Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) is not unrestrained, and that the Sixth Circuit has never recognized a First Amendment right to access outside of judicial or quasi-judicial proceedings (doc. 7).

1. The Right to Gather News

Plaintiff cites CBS, Inc. v. Young, 522 F.2d 234, 237-38 (6^th Cir.1975), a case in which the Sixth Circuit ordered the District Court for the Northern District of Ohio to vacate an order barring parties and others associated with a lawsuit arising out of the Kent State shootings from speaking with the news media and the public, (doc. 6). Defendant points out, and the Court agrees, that in analyzing whether CBS, Inc. had standing to contest the order's validity, the Sixth Circuit stated that news gathering qualifies for First Amendment protection (doc. 7). The CBS Court, however, did not hold that a right to gather news includes the right to access government information. The CBS case, unlike the present case, involved a prohibition keeping certain people from speaking to the press. 522 F.2d 234. In the case at bar, the Defendant has not been alleged to have prohibited anyone who wished to talk to the Enquirer from doing so. As a matter of law, therefore, the Court finds no indication that Plaintiffs right to gather news was violated.

2. The Right to Access Government Information

Plaintiff cites Detroit Free Press v. John Ashcroft, 303 F.3d 681, 700 (6^th Cir.2002) for the proposition that there is a limited constitutional right to some government information (doc. 6) and argues that the Court should use, as the Sixth Circuit did in Detroit Free Press, the "experience and logic" analysis from Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). In contrast, Defendants argue that the applicable standard to apply in this case comes from Houchins v. KQED, Inc., 438 U.S. 1,14, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), in which the Supreme Court stated that the First Amendment is not a public records act and does not create a right of access to government information or sources of information. In his concurrence in Houchins, Justice Stewart stated that:

The First and the Fourteenth Amendments do not guarantee the public a right of access to information generated or controlled by government, nor do they guarantee the press any basic right of access superior to that of the public generally. The Constitution does no more than assure the public and the press equal access once government has opened its doors.

438 U.S. at 16, 98 S.Ct. 2588. Defendants further cite Pell v. Procunier, 417 U.S. 817, 834^35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) in which the Supreme Court stated that the Constitution does not...