# Capital Cities Media, Inc. v. Chester

> Court of Appeals for the Third Circuit · July 21, 1986 · 797 F.2d 1164

URL: https://www.frixlaw.com/law-library/cases/8943583

## Case

- **Full name:** CAPITAL CITIES MEDIA, INC., t/d/b/a the Wilkes-Barre Times Leader and Scheier, Robert, Assistant City Editor v. CHESTER, James W., Regional Director, Northeast Region, Pennsylvania Department of Environmental Resources, and Carmon, Mark R., Community Relations Coordinator, Northeast Region, Pennsylvania Department of Environmental Resources, and Debenedictis, Nicholas, Secretary, Pennsylvania Department of Environmental Resources, and Pennsylvania Department of Environmental Resources
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** July 21, 1986
- **Citations:** 797 F.2d 1164; 55 U.S.L.W. 2073
- **Precedential status:** Published
- **Opinion:** Dissent by Garth
- **Judges:** Adams, Garth, Stapleton
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8943583

## How later opinions describe it (automated extraction)

- holding that a government agency could deny a newspaper access to government records despite the apparent effect the denial might have on the newspaper’s exercise of its First Amendment rights
- discussing how the inner-workings of Government have traditionally been conducted behind closed doors and noting that “decisions as to how much governmental information must be disclosed in order to make democracy work historically have been regarded as political decisions to …
- concluding that aside from limited requirements, the Constitution leaves to the democratic process the regulation of public access to the political branches
- rejecting a claim of First Amendment right of access to the administrative records of a state agency

## Opinion text

GARTH, Circuit Judge,
dissenting:
Although I agree with the majority that Times Leader has failed to state a claim under the first amendment compelling a right of access to the state executive branch documents and records sought here, I nevertheless am compelled to dissent from the majority’s judgment. I do so because the majority has vacated the district court’s judgment and has remanded so that Times Leader may develop a record in support of its so-called equal protection claim.
The district court, which had been faced with DER’s 12(b)(6) motion to dismiss, correctly held that no cause of action for which relief could be granted was presented by Times Leader’s complaint. Because no trace of an equal protection claim can be found in that complaint, I find no justification for this court to vacate the district court’s order. Since no equal protection claim was pleaded or even intimated in the *1193 complaint, I can find no principled basis for the majority’s action. I therefore dissent.
I.
In its amended complaint 1 , Times Leader complained it had been denied access to various documents and records and that that denial violated the “public’s right to know about the effectiveness with which the defendants and the DER are protecting the environment in Northeast Pennsylvania.” Complaint U11, App. 12a. Times Leader also alleged that DER had engaged in a practice of denying public access to records. Finally, the complaint, obviously referring to DER’s alleged denial of public access, stated that:
The standards utilized by the Department of Environmental Resources to grant or deny access to the public to records of DER are arbitrary and capricious.
Complaint If 13, App. 13a.
Thus, no allegation in the complaint charges selectivity by the defendants in their distribution of information. The mere allegation that DER employed “arbitrary and capricious” disclosure policies can by no stretch of the imagination constitute a well-pleaded cause of action under the equal protection clause of the fourteenth amendment. At the least, such a cause of action would require some indication that disclosure to someone at sometime had been made and that such disclosure discriminated against the complainant or otherwise constituted a denial of equal protection. No such allegation appeared in Times Leader’s original complaint nor in its amended complaint.
The district court dismissed the complaint solely on the basis that Times Leader was not entitled to a first amendment right of access. That was the only claim ruled on by the district court. While it is true that the district court’s opinion, for reasons which do not appear on the record, addressed in dictum a fourteenth amendment equal protection claim, that discussion cannot provide the foundation for a cause of action where the complaint is totally devoid of any language which could even remotely be construed to state a claim under the equal protection clause. District Court op. at App. 84-85. The majority’s reliance not on its own reading of the complaint but on the district court’s discussion of an equal protection claim that was never pleaded, is unprecedented.
The majority opinion acknowledges that Times Leader “... fails to specify what information, denied to it, has been disclosed to others”, Maj. op. at 1176, and indeed nothing appears which indicates that Times Leader “... articulated its [equal protection] claim before the district court.” Id. Significantly, the majority opinion does not even claim that the allegations of Times Leader’s complaint set forth an equal protection claim. Rather, without referring to the particular allegations (of which there are none), the majority relies on the district court’s equivocal treatment of an equal protection claim as a substitute for its own examination of Times Leader’s complaint. The majority opinion, apparently recognizing the weakness of this position, then seeks to buttress its holding by stating “... at oral argument before us, Times Leader represented that there was reason to believe that there had been D.E.R. discrimination between newsgatherers since the district court’s decision.” Maj. op. at 1176.
Obviously, matters occurring after the district court’s decision could not have been before the district court when the district court ruled. Moreover, oral arguments made before a Court of Appeals can not cure a deficient cause of action by attempting to supply those elements of a cause of *1194 action which are not stated in the complaint.
II.
As I have observed, the record does not disclose why the district court even addressed an equal protection claim. 2 Significantly, however, if the issue that the district court found necessary or desirable to discuss arose because of assertions made in Times Leader’s motion for a preliminary injunction (a motion which was never heard or ruled upon), the district court in any event found such pleading to be deficient. Moreover, the district court correctly noted that no equal protection claim was “alleged” because Times Leader did “not identify the particular, insular group which is receiving unfair or discriminatory treatment”, nor did Times Leader “even attempt to allege that the exact information was sought by all persons.” District Court op. at App. 85a.
It is well-established that a plaintiff seeking to assert an equal protection claim must at the very least allege that “he is receiving different treatment from that received by other individuals similarly situated.” Kuhar v. Greensburg-Salem School District, 616 F.2d 676 , 677 n. 1 (3d Cir.1980). “A person bringing an action under the Equal Protection Clause must show intentional discrimination against him because of his membership in a particular class, not merely that he was treated unfairly as an individual.” Huebschen v. Department of Health and Social Services, 716 F.2d 1167, 1171 (7th Cir.1983). See Price v. Cohen, 715 F.2d 87, 91 (3d Cir.1983) (“To establish a violation of the equal protection clause, a plaintiff must show that the allegedly offensive categorization invidiously discriminates against the disfavored group.”) Times Leader’s complaint fails to provide any allegations which even suggest these basic and rudimentary components of an equal protection claim. 3
The majority’s decision to vacate and remand on the ground that an equal protection claim has been pleaded where no such allegations appear in the complaint does a tremendous disservice to the district court which had before it a fatally deficient pleading. Even under the most generous reading of Times Leader’s complaint, an equal protection claim cannot be found. So that there can be no misunderstanding as to what the complaint in fact stated, I reproduce in full the amended complaint in an appendix to this opinion. I defy the most liberal pleader to read that complaint from end to end and find even the semblance of an equal protection claim.
III.
Moreover, the defendants could not possibly be put on notice as to the nature of an equal protection claim based on a reading of the complaint. Nowhere are the specifications which Times Leader alleges to constitute discriminatory behavior set forth in even the most general terms so as to enable the defendants to file an appropriate answer to defend this action.
*1195 After all, the district court, in ruling on the defendant’s motion to dismiss, and this court in reviewing that ruling, have not been confronted with an unartfully drawn pro se complaint. Even if we had been, this complaint would have been fatally deficient. A fortiori, where the complaint was drafted not by an unschooled pro se litigant, but by trained counsel, I can find no excuse for our acting as co-counsel and structuring the complaint as we would have drawn it, but as counsel has not.
As Chief Judge Aldisert recently wrote in dissent in a case where this court reversed the district court’s 12(b)(6) dismissal of a § 1983 civil rights complaint: “I see no reason to torture and twist controlling case law to accommodate plaintiffs’ counsel. I would not reward slipshod lawyering by making [the district court judge] the patsy for counsel’s derelictions and by branding the judge’s action as reversible error.” District Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir.1986) (Aldisert, C.J., dissenting).
Because I read Times Leader’s complaint as I believe complaints should be read, that is, in accordance with the words and terms found in the complaint, and because I have not deemed it an appropriate judicial exercise to conjure up a claim which Times Leader might have wished to state, but which it clearly did not, I find no reason for vacating the district court’s judgment and remanding so that Times Leader may now seek to develop a record in support of its chimerical equal protection claim. Times Leader has never sought a second amendment of its complaint, and I find no justification asserted by Times Leader for granting it an opportunity to develop still another record at this late stage of this proceeding. Indeed, even when arguing before us, Times Leader did not seek that opportunity.
Thus, I would hold that the district court correctly dismissed the complaint that was before it for failure to state a cause of action upon which relief could be granted. Since the majority refuses to read and rule on the same complaint that the district court was obliged to read and rule on, I dissent.
APPENDIX
CAPITAL CITIES MEDIA, INC., t/d/b/a THE WILKES-BARRE TIMES LEADER and ROBERT SCHEIER, Assistant City Editor, Plaintiffs
Vs.
JAMES W. CHESTER, Regional Director, Northeast Region, Pennsylvania Department of Environmental Resources and MARK R. CARMON, Community Relations Coordinator, Northeast Region, Pennsylvania Department of Environmental Resources, and NICHOLAS DEBENEDICTIS, Secretary, Pennsylvania Department of Environmental Resources, and PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, Defendants
CIVIL ACTION NO. 84-1024 of 1984
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Aug. 10, 1981
AMENDED COMPLAINT
1. The jurisdiction of this Court is invoked pursuant to 42 USC Sections 1983 , 1985, 28 USC Sections 1331 , 1343, the First Amendment of the U.S. Constitution, the Fourteenth Amendment of the U.S. Constitution. Ancillary and pendant jurisdiction is invoked for state causes of action which arise under Article I Section 7 of the Pennsylvania Constitution and 65 P.S. Section 66.1, et seq. (The Pennsylvania Right to Know Law).
2. The plaintiffs are Capital Cities Media, Inc., t/d/b/a The Wilkes-Barre Times Leader (“Times Leader”), a newspaper of general circulation in Northeast Pennsylvania with offices located at 15 North Main Street, Wilkes-Barre, Pa. and Robert Schei *1196 er, an Assistant City Editor for the Times Leader.
3. The defendants are James W. Chester, the Regional Director of the Northeast Region of the Pennsylvania Department of Environmental Resources (“Chester”; “DER”) and Mark R. Carmon, Community Relations Coordinator for the Northeast Region of the Pennsylvania Department of Environmental Resources (“Carmon”; “DER”). The defendants have offices at 90 East Union Street, Wilkes-Barre, Luzerne County, Pa. At all times material hereto, the defendants have been acting in their official capacities and under color of state law. Defendant Nicholas DeBenedictis is the Administrative Head of the Pennsylvania Department of Environmental Resources and has the title of Secretary. His office address is c/o Department of Environmental Resources, Fulton Building, 9th Floor, P.O. Box 2063, Harrisburg, Pennsylvania, 17120. Defendant Department of Environmental Resources (“DER”) is an agency of the executive branch of the Commonwealth of Pennsylvania created by statute approved on December 3, 1970 as an Amendment to the Administrative Code, 71 P.S. Section 61, et seq.
4. In December, 1983, the Pennsylvania Gas & Water Company, a major supplier of drinking water to the public in Northeast Pennsylvania, experienced contamination of a substantial portion of its water supply by giardia cysts. This contamination resulted in over four hundred (400) area residents being infected with an intestinal disease known as giardiasis, an illness similar in effects to intestinal flu. Two hundred fifty thousand (250,000) customers of the Pennsylvania Gas & Water Company were placed under water use restrictions. This incident received local, state and national news coverage.
5. The defendants and the branch of government by which they are employed have the responsibility to enforce various federal and state environmental laws and regulations, among them laws and regulations relating to the prevention of sewage discharges and the contamination of public water supplies.
6. Since the outbreak of giardiasis, the Times Leader has conducted an in-depth examination of the giardiasis outbreak, including an examination of the effectiveness with which the defendants and the DER have fulfilled their responsibilities. The Times Leader examination has resulted in the publication of numerous news articles in connection with this problem. The Times Leader examination and publication is continuing.
7. As part of this ongoing examination, the Times Leader has requested numerous DER documents and records from the Defendants, only some of which have been provided.
8. The defendants have refused to make a variety of DER documents and records available to the Times Leader, despite a request to do so. The Times Leader has a right to inspect and copy the DER documents and records it has requested from these defendants in their official capacity since these DER documents and records are the official records of the DER, the public agency for which the defendants work and are themselves public records.
9. These defendants have refused the plaintiffs and the public access to these documents and records without authority from the DER or the Executive Branch of the Commonwealth’s government to make such a refusal.
10. The constitutional and statutory rights of the plaintiffs to inspect and copy the records of the DER are being denied by the defendants.
11. The refusal of the defendants to turn over the public documents and records in the possession of the Department of Environmental Resources is a violation of the public’s right to know about the effectiveness with which the defendants and the DER are protecting the environment in Northeast Pennsylvania.
12. The Department of Environmental Resources has engaged in a pattern or *1197 practice of denying the public access to records of the Department of Environmental Resources to which the public is entitled.
13. The standards utilized by the Department of Environmental Resources to grant or deny access to the public to records of DER are arbitrary and capricious.
WHEREFORE, plaintiffs respectfully request this honorable Court:
A. To immediately order the defendants to make all DER records available to plaintiffs for inspection and copying; and
B. To require the Department of Environmental Resources to adopt a uniform policy to provide the public access to DER records in a manner consistent with Constitutional and statutory guarantees; and
C. To submit the proposed policy to the court for approval; and
D. To reimburse plaintiffs for counsel fees and costs in bringing and prosecuting this claim; and
E. Provide such other relief as this Court deems just and equitable under the circumstances.
/s/ Ralph E. Kates, III
Ralph E. Kates, III, Esquire
Attorney for Plaintiffs
408 Wilkes-Barre Center
39 Public Square
Wilkes-Barre, Pennsylvania 18701
(717) 825-2495
. It must be remembered that neither the district court nor this court is examining Times Leader’s initial complaint. Times Leader has already amended that complaint. In neither its original nor amended version can any hint of an equal protection claim be found.
. In a footnote, the district court stated that Times Leader "relies upon the Affidavit of Robert Scheider [sic], Assistant City Editor for the Wilkes-Barre Times Leader as establishing plaintiffs Equal Protection claim." District Court op. at App. 85a, n. 10. The court also made reference to plaintiffs’ “brief," obviously referring to Times Leader’s memorandum of law in opposition to defendants’ motion to dismiss. Docket entry 20, App. 3a. However, that brief is not part of the record on this appeal and the majority opinion properly does not rely upon Scheier’s affidavit.
. Curiously, the majority, without permitting amendment of the complaint, sustains the dismissal of Times Leader’s first amendment access claim because the complaint did not allege a tradition of public access. Maj. op. at 1175. I agree with the substantive disposition, but not because of Times Leader's purported pleading deficiency. Under our notice pleading precedents, it is obvious that the complaint asserts a public access claim — a claim which on the merits must be dismissed. Yet, inexplicably, where it is obvious that no equal protection claim has been pleaded, the majority remands to develop an appropriate record. I leave it to more experienced jurists than I to attempt to explain these two irreconcilable actions.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8943583. Public record. Not legal advice.