Kowalski v. Koster

Filing 49

ORDER entered by Judge Nanette Laughrey. Defendant's Motion to Dismiss Counts I, II, and III of the Amended Complaint [Doc. # 26] is GRANTED. The Court DENIES Defendant's request for attorneys' fees.Dated: (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

JEFFRY SCOTT KOWALSKI,

Plaintiff,
v.
CHRIS KOSTER, in his official capacity
as MISSOURI ATTORNEY GENERAL,
Defendant.

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Case No. 2:11 CV 04129 NKL

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ORDER
Before the Court is the Defendant Chris Koster’s Motion to Dismiss [Doc. # 26]
the Amended Complaint filed by Plaintiff Jeffry Kowalski. For the following reasons, the

Court grants the motion.
I.

Background
Kowalski has published a list of Missouri public officials on his website, which

allows users to post additional information about the officials, including their sexual
orientation. [Doc. # 29 at 1]. Kowalski states that Koster has “recently made, and is
continuing to make, direct and public threats to civilly or criminally prosecute Mr.
Kowalski based on the alleged presence on Mr. Kowalski’s website of sexual orientation
information.” Id. at 2. Kowalski states that Koster threatened to “shut down any Web
site that posts information regarding the sexual orientation of any school personnel in
Missouri.” Id. Kowalski also states that Koster has a “history and policy of violating the

rights of websites seeking to publish sexual orientation information online.” Id.
On July 8, 2011, Kowalski filed this action seeking prospective declaratory and
injunctive relief to enjoin his threatened prosecution by Defendant Chris Koster,
Missouri Attorney General. Kowalski seeks relief under three separate causes of action.
The first cause of action is for the violation of the Communications Decency Act
(“CDA”), 47 U.S.C. § 230(c)(1) and 42 U.S.C. § 1983. The second is claim under 42
U.S.C. § 1983, for violation of Kowalski’s First and Fourteenth Amendment rights, and
the third is a claim for a declaratory judgment under 28 U.S.C. § 2201.
II.

Discussion
Koster’s Motion to Dismiss alleges that Kowalski lacks standing and has failed to

state a claim for which relief can be granted. Fed. R. Civ. P. 12(b)(1), (b)(6).
A.

Count I

The Court dismisses Count I outright for failure to state a claim, as the CDA
immunizes Internet service providers and does not create any cause of action under 42
U.S.C. § 1983.

B.

Counts II and III
1.

Standing

The party invoking federal jurisdiction, in this case Kowalski, bears the burden of
proof of proving the three elements of standing necessary to bring a suit under Article III
of the U.S. Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To
establish standing, Kowalski must first show that he has suffered an “injury in fact,”
defined by the Supreme Court as “an invasion of a legally-protected interest” which is

“concrete and particularized”, and “actual and imminent” rather than “conjectural or
hypothetical.” Lujan, 504 U.S. at 560-61. If standing is based on an injury that may occur
“at some indefinite future time, and the acts necessary to make the injury happen are at
least partly within the plaintiff’s own control,” a “high degree of immediacy” is required.
Id. at 564, n.2.1
A party “need not expose himself to arrest or prosecution under a criminal statute
in order to have standing to challenge that statute in federal court.” Monson v. Drug
Enforcement Admin., 589 F.3d 952, 958 (8th Cir. 2009). Rather, to assert an injury in fact,
the plaintiff must have “asserted facts that affirmatively and plausibly suggest that they
are indeed subject to a credible threat of prosecution under the statute for engaging in
conduct for which they invoke constitutional protection.” Zanders v. Swanson, 573 F.3d
591, 594 (8th Cir. 2009). The Eighth Circuit has found standing for threatened
prosecutions in situations where the government has clearly stated that the plaintiff’s
conduct was unlawful. See e.g. Monson, 589 F.3d at 958 (finding standing upon the
existence of a DEA letter “plainly stat[ing]” that plaintiffs’ proposed cultivation of hemp
constituted a “manufacture of a Schedule I controlled substance that, under the CSA, is
unlawful without a registration from the agency.”).
Here, however, Kowalski has not even provided a particular cause of action or

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The other two elements require a plaintiff to show that there is a “causal
connection between the injury and the conduct complained of,” and that it is likely, rather
than merely speculative, that a favorable decision will redress the injury. Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992).
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criminal statute under which he would be prosecuted by Koster. He only alleges that
Koster has threatened to “civilly or criminally prosecute” him and made public threats to
shut down “any Web site” posting information about the sexual orientation of Missouri
school officials. [Doc. # 29 at 2]. These factual allegations are insufficient for the Court
to determine whether Kowalski’s situation would even subject him to prosecution under
any Missouri law. Even if Kowalski had provided more information about the law under
which he would be prosecuted, he does not provide even a basic timeline of when these
threats might be realized, making it impossible for the Court to determine whether the
threat of prosecution is real and immediate. Kowalski also points to Koster’s alleged
“history and policy of violating the rights of Web sites seeking to publish sexual
orientation information online.” [Doc. # 29 at 2]. However, Kowalski has not indicated
what course of action was taken by the government in these instances, or whether there
was even a prosecution at all, rendering the Court unable to determine whether Kowalski
himself faces the same type of threat. Though Kowalski makes vague references to
documentation such as the “Defendant’s Petition and Amended Petition that were filed in
Camden County Circuit Court,” he fails to explain how these documents relate to his
current complaint. [Doc. # 29 at 2].
Thus, for the above reasons, Kowalski has not met the requirements to assert
standing even under the liberal pleading standards afforded to pro se claimants.
C.

Failure to State a Claim

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When reviewing a 12(b)(6) motion, the Court "must accept as true all material
allegations of the complaint, and must construe the complaint in favor of the complaining
party." Warth v. Seldin, 422 U.S. 490, 501 (1975). However, here, even if the Court
construes all Kowalski’s allegations as true, Kowalski has failed to establish any specific
present or future violation of his constitutional rights from Koster’s threats. The act of
informing a citizen that a prosecution may be forthcoming is not a per se violation of that
citizen’s constitutional rights. Kowalski has failed to plead any facts indicating that
Koster is planning to prosecute Kowalski under any particular statute, let alone one that
may be unconstitutional on its face, or unconstitutional as applied to Kowalski.
III.

Conclusion
Accordingly, it is hereby ORDERED that Defendant’s Motion to Dismiss Counts

I, II, and III of the Amended Complaint [Doc. # 26] is GRANTED. The Court DENIES
Defendant’s request for attorneys’ fees.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: September 15, 2011
Jefferson City, Missouri

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