Appendix — Parkhurst v. Tabor (No. 09-561)

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APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 08-2610

[Filed June 25, 2009]

Ross Parkhurst, individually and as

guardian and next friend of H. P.; Amy

Parkhurst, individually and as guardian

and next friend of H. P.; H. P., a minor

child under the age of eighteen,

Plaintiffs - Appellants,

Vv.

Stephen Tabor, individually and in his

official capacity as Prosecuting

Attorney for the Twelfth Judicial

District, Sebastian County, State of

Arkansas; Daniel Shue, individually

and in his official capacity as Chief

Deputy Prosecuting Attorney for the

Twelfth Judicial District, Sebastian

County, State of Arkansas; County of

Sebastian, a body corporate and politic

in the State of Arkansas,

a ee ee A ee ee ee a a ee ee ee ee Le Le Le a a

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Defendants - Appellees. )

Appeal from the United States

District Court for the

Western District of Arkansas.

Submitted: May 13, 2009

Filed: June 25, 2009

Before WOLLMAN, JOHN R. GIBSON, and

MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Ross and Amy Parkhurst, the adoptive father

and biological mother of H.P., a minor child,

asserted claims as next friend under 42 U.S.C.

§ 1983 against Arkansas state prosecutors Stephen

Tabor and Daniel Shue, and Sebastian County,

Arkansas. The Parkhursts alleged a violation of

H.P.’s_ right to equal protection under’ the

Fourteenth Amendment based on Tabor and Shue’s

decision to issue a nolle prosequi! and forego

prosecution of H.P.’s biological father for the felony

sexual assault of his daughter. The district court?

' A legal notice that a lawsuit has been abandoned. Black’s

Law Dictionary 1070 (7th ed. 1999).

2 The Honorable Robert T. Dawson, United States District

Judge for the Western District of Arkansas.

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dismissed the case under Rule 12(b)(6) for failure to

state a claim. The Parkhursts appeal, arguing that

the Fourteenth Amendment guarantees to crime

victims the nondiscriminatory prosecution of crime.

We affirm.

I.

When a district court dismisses a claim under

Rule 12(b)(6) we examine the facts alleged in the

complaint. See Hafley v. Lohman, 90 F.3d 264, 266

(8th Cir. 1996). Amy Parkhurst and Chad Belt

married in Arkansas in 1993, and their daughter

H.P. was born in 1994. When the couple divorced in

2000, Amy Parkhurst was awarded sole custody

while Belt was granted visitation rights. Shortly

thereafter Amy Parkhurst relocated to Arizona

with H.P. and married Ross Parkhurst.

H.P. first visited Belt in Arkansas for an

extended period of time during the summer of 2001

when she was seven. After returning to Arizona

H.P. begged her mother not to require her to visit

her biological father again. When Belt arrived in

Arizona the following summer to take H.P. back to

Arkansas, she became emotionally overwrought

and was allowed to skip the visit. Belt insisted that

H.P. resume visitation in 2003, however, and H.P.

spent seven weeks in Arkansas with him when she

was nine. Amy Parkhurst spoke regularly to H.P.

that summer and reported that her daughter

seemed increasingly uncomfortable and emotional

as the summer progressed.

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On July 21, 2003 H.P. telephoned her mother

from Arkansas and informed her that she had

injured her genitals in a diving board accident and

was bleeding vaginally. Two days later Amy

Parkhurst traveled to Arkansas to investigate the

nature of H.P.’s injuries and to procure medical

treatment for her daughter since Belt had not.

Upon Amy Parkhurst’s arrival, H.P. informed her

that she had injured both her “bottom” and her

vagina. Between July 23 and 28 H.P. was examined

at three separate medical facilities in Arkansas and

Oklahoma. Although H.P. continued to insist that

she had been injured in an inconsistently described

accident, all medical personnel diagnosed H.P. as a

potential victim of sexual abuse. The matter was

referred to the Crimes Against Children Division of

the Arkansas State Police which determined that

H.P. had been sexually abused but noted that she

feared identifying the perpetrator.

Shortly after H.P. and her mother left Arkansas

for Washington state, where the Parkhursts had

relocated, Belt spontaneously offered to relinquish

his parental rights to H.P. if the Parkhursts would

sign a statement that they were not accusing him

of molesting the girl. The Parkhursts executed the

requested document and Belt consented to the

termination of his parental rights. Thereafter Ross

Parkhurst began proceedings to adopt H.P., and

H.P. sought and received assurance that she would

not have to visit Belt in the future. Several days

after the adoption ceremony, H.P. disclosed that

Belt had raped her during the summers of 2001

and 2003. Belt was arrested by the Sebastian

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County, Arkansas police and charged with felony

sexual assault on December 5, 2003.

Chief Deputy Prosecuting Attorney Tabor and

Prosecuting Attorney Shue were assigned to the

case. The prosecutors expressed confidence in the

overwhelming evidence against Belt. Shue stated,

however, that as a matter of policy his office was

reluctant to prosecute sexual abuse perpetrated by

a close relative. As he put it, “no one wants these

[incest] cases” and his office “would prefer not to

prosecute such a case if it could find a reason not

to.” In their appellate brief Tabor and Shuc

suggested that victims of incest make “hesitant”

and “incredible” witnesses and that the department

prioritizes “other types of cases” as a result. Shue

acknowledged that in this respect the departments’

approach to incestuous assault differs from its

approach to other sexual assault cases.

The Parkhursts claim that as a result of this

policy Tabor and Shue sought a pretext for

abandoning the Belt prosecution. Under Arkansas

law the result of a polygraph test is inadmissible in

a criminal proceeding unless the parties stipulate

to its admissibility. The Parkhursts allege that

Tabor and Shue were aware that an agreement to

administer a _ polygraph examination and_ to

stipulate that the result would be admissible was

contrary to sound prosecutorial policy because the

perpetrator of a sex crime is often able to pass a

polygraph test. Despite their alleged knowledge

that it would be inadvisable, Tabor and Shue

arranged for the administration of a polygraph

exam to Belt and stipulated that the results would

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be admissible in court. On March 4, 2004 Belt took

a polygraph test. The examiner posed only three

relevant questions: (1) “Did you ever have sexual

contact with [H.P.’s] private area?” (2) “Have you

ever had sex with [H.P]?” and (3) “Is [H.P.] telling

the truth about you having sex with her?” Belt was

not asked about H.P.’s alleged diving board injury

or the circumstances surrounding his offer to

terminate parental rights. The polygraph examiner

informed Tabor on March 16 that Belt “hald] been

truthful in answering the . . . questions.”

Several months later Tabor and Shue informed

the Parkhursts by letter that they intended to issue

a nolle prosequi as a result of the polygraph

examination:

[We are] convinced that the event occurred

and, under normal conditions, would have no

compunction whatsoever in proceeding to

trial in this matter. However, .. . [ijn this

case, because of the stipulated polygraph

examination results, it is [our] belief that a

grand jury would not convict the Defendant,

Chad Belt ....

That same day Tabor and Shue issued the nolle

prosequi and suspended the Belt prosecution.

On June 6, 2007 the Parkhursts brought a

§ 1983 action on H.P.’s behalf against Tabor and

Shue, in both their official and_ individual

capacities, and against Sebastian County,

Arkansas, alleging a violation of H.P.’s right to

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equal protection.? The Parkhursts asserted that

H.P. was discriminated against as a member of a

disfavored class they defined as_ victims of

incestuous sexual abuse. They sought damages, an

injunction requiring the reinstatement of the

charges against Belt, and a declaratory judgment

that the challenged prosecutorial policy violated

the equal protection clause by failing to provide to

victims of incest the same protection offered to

other victims of sexual assault.

Tabor, Shue, and the county moved to dismiss

for failure to state a claim, arguing that as victims

the Parkhursts lacked standing to subject state

prosecutorial decisions to constitutional scrutiny.

The district court granted the motion, explaining

that prosecutorial conduct may only be subjected to

such review by those with a constitutional right to

the nondiscriminatory prosecution of crime. That

right, according to the district court, rests with

defendants subjected to discriminatory prosecution

but does not accrue to the victims of crime. The

Parkhursts appeal, arguing that the district court

erred in dismissing their suit because the

Fourteenth Amendment guarantees to crime

victims the nondiscriminatory prosecution of crime.

3 The complaint also included state claims against Belt for

battery and outrage. Those claims were tried before a jury

which found Belt liable for sexually abusing H.P. and

awarded the Parkhursts $250,000 in compensatory damages

and $750,000 in punitive damages. We recently affirmed that

judgment on appeal. See Parkhurst v. Belt, No. 08-2668, 2009

WL 1586981 (8th Cir. June 9, 2009)

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IT.

We review de novo a district court’s grant of a

12(b)(6) motion to dismiss. Botz v. Omni Air Int’,

286 F.3d 488, 491 (8th Cir. 2002). In doing so we

must accept as true the plaintiffs well pleaded

allegations. Neitzke v. Williams, 490 U.S. 319, 326-

27 (1989). To survive a motion to dismiss, a

complaint must contain’ factual allegations

sufficient “to raise a right to relief above the

speculative level . . . .” Bell Atlantic Corp v.

Twombly, 550 U.S. 544, 555 (2007).

Article III of the United States Constitution

restricts the jurisdiction of the federal courts to

actual cases and controversies. The case or

controversy requirement has been effectuated by

several doctrines, the most important of which is

standing. Allen v. Wright, 468 U.S. 737, 750 (1984).

To establish constitutional standing “the plaintiff

must show that it has suffered an ‘injury in fact’

that is: concrete and particularized and actual or

imminent; fairly traceable to the challenged action

of the defendant; and likely to be redressed by a

favorable decision.” United States v. United Sec.

Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per

curiam) (citing Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992)).

Consistent with these principles, crime victims

have standing to challenge allegedly discriminatory

prosecutorial conduct only if those victims have a

constitutional right to the nondiscriminatory

prosecution of crime such that its deprivation

constitutes injury in fact. Cf. Linda R.S. v. Richard

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D., 410 U.S. 614, 617 (1977). To put it another way,

the Parkhursts have standing to sue prosecuting

authorities only if the discriminatory treatment

they allege implicates the protections of the

Fourteenth Amendment. While it is well settled

that defendants subjected to or threatened with

discriminatory prosecution have standing to bring

an equal protection claim, see Linda R.S., 410 U.S.

at 619 & n.5, this right has not been extended to

crime victims.

In Linda R.S. the mother of an illegitimate child

who was owed support payments sued on behalf of

herself and all others similarly situated to enjoin

the discriminatory application of a Texas statute

criminalizing the failure to pay child support. 410

U.S. at 614-15. Although the text of the statute did

not appear to distinguish between illegitimate and

legitimate children, it had been construed by the

courts of the state to apply only to parents of

legitimate children. Id. at 615. Linda R.S. argued

that this interpretation discriminated between

legitimate and illegitimate children without a

rational basis and therefore violated the equal

protection clause. Id. at 616.

The Supreme Court concluded that Linda R.S.

lacked standing to bring suit, explaining that “a

citizen lacks standing to contest the policies of the

prosecuting authority when he himself is neither

prosecuted nor threatened with prosecution”

because “a private citizen lacks a_ judicially

cognizable interest in the prosecution’ or

nonprosecution of another.” Id. at 619. The absence

of this right, according to the Court, stems from the

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“special status of criminal prosecutions in our

system,” which rejects a “direct nexus between the

vindication of [victims’] interest{s] and enforcement

of the State’s criminal laws.” Id.

The lower federal courts have maintained the

distinction in standing between those prosecuted by

the state and those who would urge the prosecution

of others, even when the failure to prosecute was

allegedly discriminatory. See United Sec. Sav.

Bank, 394 F.3d at 567 (“private citizen generally

lacks standing” to subject prosecutorial decisions to

scrutiny); United States v. Grundhoefer, 916 F.2d

788, 791 (2d Cir. 1990) (“direct, distinct, and

palpable injury in a criminal sentencing proceeding

plainly falls only on the defendant who is being

sentenced” thus private citizens cannot challenge

decisions of prosecuting authority); Sattler v.

Johnson, 857 F.2d 224, 227 (4th Cir. 1988) (victims

lack constitutional right under equal protection

clause to compel criminal prosecution); Doe_v.

Mayor and City Council of Pocomoke City, 745 F.

Supp. 1137, 1139 (D. Md. 1990) (“The Court is not

aware of a constitutional, statutory, or common law

right that a private citizen has to require a public

official to investigate or prosecute a crime.”). A

leading legal commentator on constitutional issues

agrees. See Laurence H. Tribe, American

Constitutional Law 124 (2d ed. 1988) (“the interest

in the just administration of the laws, including the

interest in nondiscriminatory criminal enforcement,

is presumptively deemed nonjusticiable even if

invoked by persons with something beyond a

generalized bystander’s concern; only if the litigant

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is immediately affected as a target of enforcement

can that presumption be overcome’).

The Parkhursts point to several cases where

crime victims were determined to have a right to

challenge the allegedly discriminatory provision of

police protection. See, e.g., Estate of Macias v. Ihde,

219 F.3d 1018 (9th Cir. 2000); Thurman v. City of

Torrington, 595 F. Supp. 1521 (D. Conn. 1984). In

Macias, family members of a slain woman brought

a § 1983 suit alleging that police officers had

ignored repeated complaints of threatened violence

and provided “inferior police protection” because

the decedent was a member of a disfavored class of

victims, thereby violating the Equal Protection

Clause. 219 F.3d at 1019. The Ninth Circuit

concluded, without reaching the merits, that

“[t]here is a constitutional right [! to have police

services administered in a_ nondiscriminatory

manner - a right that is violated when a state actor

denies such protection to disfavored persons.” Id. at

1028. When faced with a similar allegation of

discriminatory police protection, the district court

in Thurman determined that “[plolice action is

subject to the equal protection clause and section

1983 whether in the form of commission of violative

acts or omission to perform required acts pursuant

to the police officer’s duty to protect.” 595 F. Supp.

at 1527. |

The Parkhursts claim to have been injured by a

failure to prosecute Belt rather than by a failure to

provide police protection to H.P., and they point to

no cases which have recognized a right to compel

prosecution of a wrongdoer. That the standing

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analysis differs depending on whether the alleged

injury arises from a failure to prosecute or a failure

to protect is not without rationale. While police

officers are under a “statutorily imposed duty to

enforce the laws equally and fairly,” Thurman, 595

F. Supp. at 1527 (quoting Smith v. Ross, 482 F.2d

33, 36 (6th Cir. 1973) (per curiam)), “[w]hether to

prosecute and what charge to file or bring before a

grand jury are decisions that generally rest in the

prosecutor’s discretion,” United States v.

Batchelder, 442 U.S. 114, 124 (1979). The

Parkhursts, alleged victims of a discriminatory

prosecutorial policy, did not suffer injury in fact as

defined by the Supreme Court because they were

“neither prosecuted nor _ threatened with

prosecution.” Thus, they lack standing to bring this

claim against Tabor, Shue, and Sebastian County.‘

Hi.

For the foregoing reasons, the judgment of the

district court is affirmed.

4 We note that the Parkhursts are not without other avenues

to redress their grievance. Prosecutorial decisions are

“discretionary public duties that are enforced by public

opinion, policy, and the ballot.” Pocomoke City, 745 F. Supp.

at 1139.

5 The motion of ‘Tabor and Shue to strike documents from the

appellants’ appendix and submission of exhibits is denied as

moot.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 08-2610

[Filed June 25, 2009]

Ross Parkhurst, individually and as

guardian and next friend of H. P.; Amy

Parkhurst, individually and as guardian

and next friend of H. P.; H. P., a minor

child under the age of eighteen,

Plaintiffs - Appellants,

wi

Stephen Tabor, individually and in his

official capacity as Prosecuting

Attorney for the Twelfth Judicial

District, Sebastian County, State of

Arkansas; Daniel Shue, individually

and in his official capacity as Chief

Deputy Prosecuting Attorney for the

Twelfth Judicial District, Sebastian

County, State of Arkansas; County of

Sebastian, a body corporate and politic

in the State of Arkansas,

Defendants - Appellees.

Chad Belt, an individual,

Defendant

Nm eee lee eee _

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Appeal from U.S. District Court

for the Western District of Arkansas - Ft. Smith

(2:07-cv-02068-RTD)

JUDGMENT

This appeal from the United States District

Court was submitted on the record of the district

court, briefs of the parties and was argued by

counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in

this cause is affirmed in accordance with the

opinion of this Court.

June 25, 2009

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

Civ. No. 07-2068

[Filed June 24, 2008]

ROSS PARKHURST and AMY PARKHURST,

as next friend of H.P., a minor

child under the age of eighteen

)

)

)

PLAINTIFFS )

)

Vv. )

)

CHAD BELT )

DEFENDANT )

)

JUDGMENT

On the 17th day of June 2008, this matter came

on for trial to a duly selected jury consisting of

eight members, the Honorable Robert T. Dawson

presiding. —Two members of the jury were excused

during the course of the trial. The trial continued

until June 20, 2008, when the case was submitted

to the six-member jury on interrogatories and a

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unanimous verdict was reached as to each

interrogatory as follows:

INTERROGATORY NO. 1: ON PLAINTIFFS’

CLAIM THAT DEFENDANT COMMITTED A

BATTERY AGAINST H.P., WE THE JURY FIND

IN FAVOR OF:

PLAINTIFFS _v__

DEFENDANT ____

INTERROGATORY NO. 2:ON PLAINTIFFS’

CLAIM THAT DEFENDANT COMMITTED

OUTRAGE AGAINST H.P., WE THE JURY FIND

IN FAVOR OF:

PLAINTIFFS _v__

DEFENDANT

INTERROGATORY NO. 3: STATE THE

AMOUNT OF COMPENSATORY DAMAGES

THAT YOU FIND FROM THE

PREPONDERANCE OF THE EVIDENCE

SHOULD BE AWARDED TO PLAINTIFES.

ANSWER: _ $250,000

INTERROGATORY NO. 4: STATE THE

AMOUNT OF PUNITIVE DAMAGES THAT YOU

FIND FROM CLEAR AND CONVINCING

EVIDENCE SHOULD BE AWARDED TO

PLAINTIFFS.

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ANSWER: $750,000

INTERROGATORY NO. 5: ON

DEFENDANTS’ CLAIM THAT PLATINIFFS

COMMITTED DEFAMATION AGAINST

DEFENDANT, WE THE JURY FIND IN FAVOR

OF:

PLAINTIFFS _Vv__

DEFENDANT

In accordance with this verdict, it is HEREBY

ORDERED AND ADJUDGED that H.P. should

have and recover of and from Defendant

compensatory damages in the amount of

$250,000.00, and punitive damages in the amount

of $750,000, plus interest from the date of this

judgment until paid at the current post-judgment

interest rate of 2.75% per annum. Plaintiffs’

counsel is directed to file any request for allowable

costs in accordance with Rule 54(d) of the Federal

Rules of Civil Procedure and Title 28, Section 1920

of the United States Code.

Dated this 24th day of June 2008.

/sl/ Robert T. Dawson

Honorable Robert T. Dawson

United States District Judge

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

Civ. No. 07-2068

[Filed October 30, 2007,

as amended November 26, 2007]

ROSS PARKHURST and AMY PARKHURST,

individually and as next friend of

H.P., a minor child under the age

of eighteen

PLAINTIFFS

Y.

STEPHEN TABOR, individually and in

his official capacity as Prosecuting

Attorney for Twelfth Judicial District,

Sebastian County, State of Arkansas;

DANIEL SHUE, individually and in his

official capacity as Chief Deputy

Prosecuting Attorney for Twelfth

Judicial District, Sebastian County,

State of Arkansas;

COUNTY OF SEBASTIAN, a body corporate

and politic in the State of Arkansas;

eee eee eee OO IO Ss lel”

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CHAD BELT, an individual )

DEFENDANTS )

MEMORANDUM OPINION & ORDER

This case requires the Court to determine

whether a crime victim can _ invoke _ federal

jurisdiction to challenge as violative of her right to

equal protection a state decision not to prosecute

the party she accuses for reasons of class-based

discriminatory prejudice against that victim.

Plaintiffs in the present case, the biological mother

and adoptive father of H.P., a minor child, allege

prosecutors for the State of Arkansas acted with

invidious prejudice against H.P. and _ similarly

situated crime victims in declining in the face of

overwhelming evidence of guilt to prosecute Chad

Belt, biological father of H.P., for sexual abuse.

Before the Court are motions to dismiss (Docs. 7,

17) filed pursuant to Fed. R. Civ. Pro. 12(b)(6) by

separate Defendants, Sebastian County, Arkansas

and named prosecutors, and responsive pleadings,

which raise inter alia the issue of whether the

decision not to prosecute Belt injured H.P. in such a

personalized and direct manner that Plaintiffs have

standing to bring suit under 42 U.S.C. § 1983 to

test that decision against the equal protection

mandate of the Fourteenth Amendment. Whereas

the Court finds no constitutional right of crime

victims to the nondiscriminatory prosecution of

crime, and for reasons reflected herein, the Court

determines Plaintiffs are without standing, and

Defendants’ motions are GRANTED.

I. Background

In ruling on motions under Rule 12(b)(6), the

Court must accept as true the _ well-pleaded

allegations of plaintiffs and make all reasonable

inferences in favor of plaintiffs. Hafley v. Lohman,

90 F.3d 264, 266 (8th Cir. 1996). Thus, the Court

recites the facts, in the light most favorable to

Plaintiffs, as follows:

H.P. was born on May 8, 2000 out of the

marriage of Plaintiff Amy Parkhurst and

Defendant Chad Belt, who resided at that time in

the State of Arkansas. Following the divorce of

Parkhurst and Belt on August 23, 2000, Parkhurst

maintained custody of H.P. and Belt was permitted

visitation privileges during the summer months. On

December 23, 2001, Parkhurst married Plaintiff

Ross Parkhurst, and the new family eventually

relocated from Arkansas to Vancouver,

Washington.

Following H.P.’s first visit with Belt in the

summer of 2001, H.P. pleaded with Parkhurst not

to require her to return to Belt’s home. When Belt

arrived the following summer to retrieve H.P. for

her visit, H.P. suffered a nervous breakdown and

was not required to go with Belt. However, Belt

insisted that H.P. resume visitation in 2003.

During that visit, Parkhurst detected increasing

agitation and emotionality in H.P. during phone

conversations. H.P. attributed her distress to the

fact that Belt had, in a violent rage, beaten H.P.’s

pet dog to death. Parkhurst’s concerns grew when,

on July 21, 2003, H.P. informed Parkhurst that

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H.P. had suffered injury to her genital area in a

diving board accident. (Doc. 1 {J 25, 26.)

Out of concern for the true nature of H.P.’s

injuries and Belt’s failure to procure medical

treatment for H.P., Parkhurst traveled to

Arkansas. Parkhurst found H.P. to have extensive

injuries but reluctant to discuss the cause.

Parkhurst removed H.P. from Belt’s home and

immediately sought medical treatment for her in

Arkansas. Medical personnel diagnosed H.P. as a

victim of sexual abuse and referred the matter to

the Crimes Against Children Division (“CACD”) of

the Arkansas State Police. CACD determined that

Hi.P. had been sexually abused but that H.P.

maintained that she had been injured on a diving

board for fear of identifying the perpetrator. The

Children Safety Center in Springdale, Arkansas

diagnosed H.P. as a victim of sexual trauma and

identified Belt as the alleged perpetrator despite

H.P.’s refusal to accuse Belt.

After returning to Washington, Parkhurst was

contacted by Belt and his attorney, who on their

own initiative offered to terminate Belt’s parental

rights and allow Ross Parkhurst to adopt H.P. in

exchange for a letter stating that H.P. had never

accused Belt of sexual abuse. (Doc. 1 YQ 34, 35.)

Parkhurst agreed.

Upon learning that she would not have to return

to Arkansas, H.P. informed Parkhurst that Belt

had sexually abused and raped her in the summers

of 2001 and 2003. (Doc. 1 4J 39, 40.) A psychiatrist

confirmed the credibility of H.P.’s allegations, and

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the Arkansas Crime Victims Reparations Board

awarded H.P. a sum for medical expenses. Belt was

arrested by Sebastian County police and charged

with felony sexual assault.

Prosecuting attorney Tabor and Chief Deputy

Prosecuting Attorney Daniel Shue were assigned to

Belt’s case. The prosecutors expressed confidence in

the overwhelming evidence against Belt. (Doc.

45.) However, according to Plaintiffs’ complaint,

Defendant Shue expressed to third parties, and

Defendant Tabor confirmed, awareness of a policy

or custom of his office against prosecuting sexual

abuse cases that involve incest and a preference for

finding reasons not to proceed with them. (Doc. 1

{ 46.) After further investigation, the prosecutors

filed a nolle prosequi and dropped the charges

against Belt.!

On June 6, 2007, Plaintiffs filed a complaint on

H.P.’s behalf? against Defendant Belt under state

tort law alleging battery and against Defendant

prosecutors and Sebastian County, Arkansas under

§ 1983 alleging violations of H.P.’s right to equal

protection. Plaintiffs seek damages and an

injunction requiring the reinstatement of the

charges against Belt. Plaintiffs contend H.P. was

discriminated against as a member of a class they

1 Defendants allege their decision was based on the fact that

Belt successfully passed a polygraph examination after the

prosecutors stipulated to its admissibility.

2 Fed. R. Civ. Pro. 17(c) permits guardians to sue on behalf of

infant children as their representatives.

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define as victims of incestuous sexual abuse.

Pursuant to Defendants’ motions to dismiss, the

Court must determine whether H.P. suffered a

personal injury resulting from the decision not to

prosecute Belt such that Plaintiffs have standing to

bring suit under § 1983.

II. Standard of Review

When a dispositive issue of law precludes a

plaintiff from being entitled to relief regardless of

the set of facts, consistent with its allegations, the

plaintiff might prove, Rule 12(b)(6) authorizes a

court to dismiss that plaintiffs claims. Neitzke v.

Williams 490 U.S. 319, 326-327 (1989); Hishon v.

King & Spalding, 467 U.S. 69, 73 (1984). In order

to streamline litigation and dispense with needless

discovery and factfinding, courts are required to

dismiss legal claims that are destined to fail

regardless of whether they are nearly viable.

Neitzke, 490 U.S. at 326-27 (stating “[nlothing in

Rule 12(b)(6) confines its sweep to claims of law

which are obviously insupportable .... [A] claim

must be dismissed, without regard to whether it is

based on an outlandish legal theory or on a close

but ultimately unavailing one.”). “Factual

allegations must be enough to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1965 (May 21, 2007).

Further, those factual allegations must _ be

contained in the four corners of the complaint to be

cognizable to a court ruling on a motion to dismiss.

Florida State Bd. of Admin. v. Green Tree Financial

Corp., 270 F.3d 645, 663 (8th Cir. 2001).

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However, a court may not dismiss claims for

mere disbelief of a plaintiffs allegations, Neitzke,

490 U.S. at 327. Courts must accept as true a

plaintiffs well-pleaded allegations, draw all

reasonable inferences in favor of the plaintiff and

construe complaints liberally. Wells v. Walker, 852

F.2d 368, 370 (8th Cir. 1988); Hafley, 90 F.3d at

266; Morton v. Becker, 793 F.2d 185, 187 (8th Cir.

1986). Courts should bear in mind that “(t]he issue

is not whether plaintiffs will ultimately prevail, but

rather whether they are entitled to offer evidence

in support of their claims.” Aceto Agr. Chemicals

Corp., 872 F.2d at 1376.

In the case at bar, the Court finds presentation

of evidence to be unnecessary. Accepting as true the

allegations of Plaintiffs and making all reasonable

inferences in favor of Plaintiffs, the Court finds no

provable set of facts on which Plaintiffs might

establish standing to maintain an action under

§ 1983. H.P. cannot be said to be personally injured

by the decision not to prosecute Belt because the

Constitution does not guarantee to H.P. the

nondiscriminatory prosecution of crimes against

her.

IlI. Discussion

Defendants challenge Plaintiffs’ standing to

invoke the jurisdiction of this Court under Article

IiI of the United States Constitution, which

restricts the jurisdiction of federal courts to actual

cases and controversies. Allen v. Wright, 468 U.S.

737, 750 (1984). The case or _ controversy

requirement effectuates the principle of separation

25a

of powers on which the Federal Government is

founded, id., and is thus “especially rigorous when

reaching the merits of the dispute would force us to

decide whether an action taken by one of the other

two branches of the Federal Government was

unconstitutional.” Raines v. Byrd, 521 U.S. 811,

819-20 (1997). In response to “concern about the

proper—and properly limited-—role of the courts in a

democratic society,” Warth v. Seldin, 422 U.S. 490,

498 (1975), the case or controversy requirement has

been crystalized by several doctrines, the most

important of which, raised here by Defendants, is

the doctrine of standing. See Allen, 468 U.S. at 750.

The Court must determine whether crime victims

have standing to invoke the Article III adjudicatory

power to subject state prosecutorial decisions to

constitutional scrutiny or whether such decisions

are “discretionary public duties that are enforced

by public opinion, policy, and the ballot.” Doe v.

Mayor and City Council of Pocomoke City, 745 F.

Supp. 1137, 1139 (D. Md. 1990). In other words,

when prosecutors decline to charge perpetrators of

crimes against a particular class of citizens for

prejudicial disfavor of that class, can those victim-

citizens make constitutional challenges or must

they resort to the political process to _ hold

prosecutors accountable? May they respond to

prosecutorial selectivity personally as litigants or

must they respond collectively as voters?

In order to have standing to invoke the judicial

process, a plaintiff must allege “personal injury

fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the

requested relief.” Valley Forge Christian Coll. v.

26a

Ams. United for Separation of Church and State,

Inc., 454 U.S. 464, 472 (1982). “Standing it is

admitted does not always lend itself to consistently

logical analysis. But injury in fact stands on this

subject like a deeply driven channel marker for all

to see while the swirl and eddy of inconsistent

currents round-about it.” U.S. v. Grundhoefer, 916

F.2d 788, 791-92 (2nd Cir. 1990). The personal

injury requirement has the effect of preventing

litigants from raising the rights of other

individuals, barring adjudication of generalized

grievances more appropriately addressed by the

political process and _ the mechanics _ of

representative government and requiring plaintiffs

to be possessed of an interest protected by the law

invoked. See Allen, 468 U.S. at 751. Plaintiffs must

assert an interest more particularized and personal

than the gencral interest of the public in the

evenhanded administration of justice. Plaintiffs

must “allege such a personal stake in the outcome

of the controversy as to assure that concrete

adverseness which sharpens the presentation of

issues upon which the court so largely depends for

illumination of difficult constitutional questions,”

Baker v. Carr, 369 U.S. 186, 204 (1962), and an

injury in fact that is concrete, particularized, actual

or imminent, fairly traceable to the challenged

action of the defendant and likely to be redressed

by a favorable decision. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). The harm

alleged by Plaintiffs cannot be conjectural or

hypothetical, Los Angeles v. Lyons, 461 U.S. 95,

101-02 (1983), nor can it be merely abstract, O'Shea

v. Littleton, 414 U.S. 488, 494 (1974); rather, it

must be “distinct and palpable.” Warth, 422 U.S. at

27va

501. If Plaintiffs cannot make a showing sufficient

to satisfy those minima, the Court is “powerless to

create its own jurisdictionby embellishing otherwise

deficient allegations of standing.” Whitmore ov.

Arkansas, 495 U.S. 149, 155-156 (1990).

Accordingly, the Court must determine whether

H.P. has a personal interest, in the form of a

constitutional right to the nondiscriminatory

prosecution of crime, such that she suffers direct

and personal injury from the decision not to

prosecute Belt.

While there are broad and expansive categories

of personal interests that confer standing on a

party, the requirement remains firm that a

potential plaintiff must herself have suffered

injury. Linda R.S. v. Richard D., 410 U.S. 614, 616-

17 (1973); see also Sierra Club v. Morton, 405 U.S.

727, 738 (1972). “(W]e have steadfastly adhered to

the requirement that, at least in the absence of a

statute expressly conferring standing, federal

plaintiffs must allege some threatened or actual

injury resulting from the putatively illegal action

before a federal court may assume jurisdiction.”

Linda R.S., 410 U.S. at 617 (citing e.g. Moose Lodge

No. 107 v. Irvis, 407 U.S. 163, 166-167 (1972); Flast

v. Cohen, 392 U.S. 83, 101 (1968); Baker, 369 US.

at 204) (footnotes omitted). Plaintiffs have standing

to maintain suit if the discriminatory treatment

they allege implicates the protections of the

Fourteenth Amendment such that they are

constitutionally and judicially cognizable.

Prosecutorial conduct may only be subjected to

constitutional scrutiny by crime victims if those

28a

victims have a_ constitutional right to the

nondiscriminatory prosecution of crime.

The Court can find no decision recognizing such

a right and has found courts and scholars to be

unanimous in their disavowal of its existence.

Urged by a litigant to recognize “an enforceable

right ... as a victim to have {| defendants

criminally prosecuted” and “that such a right was

protected by the equal protection clause,” the

Fourth Circuit stated axiomatically that “[t]here is,

of course, no such right.” Sattler v. Johnson, 857

F 2d 224, 227 (4th Cir. 1988); see also Sellner v.

Panagoulis, 565 F. Supp. 238, 250 (D. Md. 1982)

(stating “|t|his court does not know of any right

afforded by either the Constitution or laws of the

United States to private persons to compel a state

to prosecute criminal activity.”), cert. denied, 479

U.S. 1069 (1987); Doe, 745 F. Supp. at 1139 (stating

“tlhe Court is not aware of a _ constitutional,

statutory, or common law right that a private

citizen has to require a public official to investigate

or prosecute a crime.”); Linda R.S., 410 U.S. at 619

(finding mother to be without standing to seek

injunction requiring district attorney to prosecute

father for failure to make child support payments

because “in American jurisprudence at least, a

private citizen lacks a judicially cognizable interest

in the prosecution or nonprosecution of another.”).

Crime victims lack standing to challenge

prosecutorial decisions due to the “special status of

criminal prosecutions in our’ system,” which

prevents the establishment of a “direct nexus

between the vindication of [victims’] interest[s] and

29a

enforcement of the State’s criminal laws” such that

victims would be considered to have a personal

stake in state punishment of crime. Linda R.S., 410

U.S. at 619. That conclusion is drawn necessarily

from the fundamental purposes of the criminal

justice system. Criminal law operates on the public

level through penalty and determent to protect the

interests of the public at large, and it will not reach

into the province of civil law to offer compensation

to and contemplate the personal interests of

individuals who suffer particularized injury. See

LaFave and Scott, Criminal Law Handbook, 11,

West Publishing (1977). “Collateral individuals to

[a criminal] proceeding ... have not suffered an

Article III direct injury sufficient to invoke a

federal court’s jurisdiction to rule on their claim,”

Grundhoefer, 916 F.2d at 791, because crime is not

prosecuted for the benefit of the victimized; crime is

prosecuted on behalf of the state in the collective

interest of the public. Thus, it is generally

recognized that:

The direct, distinct and palpable injury in a

criminal sentencing proceeding plainly falls

only on the defendant who is_ being

sentenced. It is the defendant and he alone

that suffers the direct consequences of a

criminal conviction and sentence.... For

this reason a private citizen generally lacks

standing to contest the policies of the

prosecuting authority when he himself is

neither prosecuted nor threatened with

prosecution.

30a

Id. at 791-92 (denying standing to bankruptcy

trustee to appeal restitution order imposed on

debtor’s principals) (quotations omitted); see also

Younger v. Harris, 401 U.S. 37, 41 (1971) (finding

certain plaintiffs to lack standing to challenge a

criminal statute where “|n]one hald] been indicted,

arrested, or even threatened by the prosecutor.”);

U.S. v. United Sec. Sav. Bank, 394 F.3d 564, 567

(8th Cir. 2004) (finding crime victims to be without

standing to challenge through appeal the criminal

restitution orders of federal district courts);

Whitmore, 495 U.S. at 157 (denying inmate

standing to bring challenge to another inmate’s

death sentence under the Eighth Amendment).

Regardless of whether a constitutional challenge is

brought by a crime victim or another party

collateral to a criminal prosecution, the rule abides

that “the interest in the just administration of the

laws, including the interest in nondiscriminatory

criminal enforcement, is presumptively deemed

nonjusticiable even if invoked by persons with

something beyond a_= generalized bystander’s

concern.” L. Tribe, American Constitutional Law

§ 3-16, at 124 (2d ed. 1988).

The Court is well advised of those decisions that

warn:

Though the law itself be fair on its face, and

impartial in appearance, yet, if it is applied

and administered by public authority with

an evil eye and an unequal hand, so as

practically to make unjust and illegal

discriminations between persons in similar

circumstances, material to their rights, the

3la

denial of equal justice is still within the

prohibition of the constitution.

U.S. v. Handler, 383 F. Supp. 1267, 1270-71 (D.

Md. 1974). However, the case or controversy

requirement of Article III extends to criminal

defendants and those threatened with prosecution

unique judicial standing to make = selective

enforcement challenges under the Equal Protection

Clause. See e.g. Stemler v. City of Florence, 126

F.3d 856, 872-73 (6th Cir. 1997). While it is said

that the standing requirement “does not insulate

executive action from judicial review ... [or]

prevent any public interests from being protected

through the judicial process,” Sierra Club, 405 U.S.

at 740, the current state of the law does not permit

crime victims to vindicate whatever interests they

may have in the prosecution of crime through the

judicial process. Undoubtably, victims of crime

would be gratified to see perpetrators punished.

however, that interest is not protected by the Equal

Protection Clause. The Court recognizes the

paradigm that, while only the prosecuted have

standing to challenge a prosecutorial regime that

favors victimizers of certain disfavored victims,

claims such as Plaintiffs’ arise only in the absence

of prosecution. The true parties in interest stand to

benefit from the discriminatory conduct and thus

will be disinclined to make_ constitutional

challenges. However, whereas Plaintiffs are unable

to show that H.P. sustained some direct and actual

injury, more particularized than one to her general

interest in seeing equality and fairness’ in

enforcement of the laws, the Court must find

Plaintiffs have failed to raise a justiciable case or

32a

controversy. See Massachusetts v. Mellon, 262 U.S.

447, 488 (1923); see also Ex parte Levitt, 302 U.S.

633, 634 (1937). Any ruling to the contrary would

violate the fundamental principles of federalism

and separation of powers that define and limit the

power of this Court.

IV. Conclusion

Based on the foregoing, Defendants’ motions to

dismiss are GRANTED as to Plaintiffs

constitutional claims and those claims are

DISMISSED WITH PREJUDICE. Whereas the

Court disposes of Plaintiffs’ claims on the basis of

lack of standing, it intimates no view as to the

merits of those claims. Whereas Plaintiffs’ state

claims against Defendant Belt are properly brought

based on 28 U.S.C. § 1332, those claims remain

pending in this Court.

IT IS SO ORDERED this 30th day of October

2007.

/s/ Robert T. Dawson

Robert T. Dawson

United States District Judge

33a

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

Civ. No. 07-2068

|Filed October 30, 2007]

ROSS PARKHURST and AMY PARKHURST,

individually and as next friend of

H.P., a minor child under the age

of eighteen

PLAINTIFFS

V.

)

)

)

)

)

)

)

)

STEPHEN TABOR, individually and in )

his official capacity as Prosecuting

Attorney for Twelfth Judicial District, )

Sebastian County, State of Arkansas;

DANIEL SHUE, individually and in his )

official capacity as Chief Deputy

Prosecuting Attorney for Twelfth )

Judicial District, Sebastian County,

State of Arkansas; )

COUNTY OF SEBASTIAN, a body corporate )

and politic in the State of Arkansas;

CHAD BELT, an individuai

DEFENDANTS )

JUDGMENT

lor reasons set forth in the Memorandum

Opinion, filed contemporanecously — herewith,

34a

Defendants’ motions to dismiss (Docs. 7. 17) are

GRANTED

IT IS SO ORDERED this 30th day of October

2007

/s/ Robert T. Dawson

Robert T. Dawson

United States District Judge

AO72A (Rev. 8/82)

35a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 08-2610

[Filed August 6, 2009]

Ross Parkhurst, individually and as

guardian and next friend of H. P., et al.,

Appellants

V.

Stephen Tabor, individually and in his

official capacity as Prosecuting

Attorney for the Twelfth Judicial

District, Sebastian County, State of

Arkansas, et al.,

Appellees

Chad Belt, an individual,

ed

Appeal from U.S. District Court

for the Western District of Arkansas - Ft. Smith

(2:07-cv-02068-RTD)

36a

ORDER

The petition for rehearing en banc is denied.

The petition for rehearing by the panel is also

denied.

Judge Shepherd did not participate in the

consideration or decision of this matter.

August 06, 2009

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

~ /s/ Michael E. Gans

APPENDIX E

U.S. Const. amend. XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

state wherein they reside. No state shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal

protection of the laws.

42 U.S.C. § 1983. Civil action for deprivation

of rights

Every person who, under color of any statutc,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by _ the

Constitution and laws, shall be hable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress, except that in any

action brought against a judicial officer for an act

or omission taken in such officer’s judicial capacity,

38a

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable. For the purposes of this section,

any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a

statute of the District of Columbia.