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Campbell v. Reisch

United States District Court, W.D. Missouri, Central Division

February 8, 2019

MIKE CAMPBELL, Plaintiff,
v.
CHERI TOALSON REISCH, Defendant.

          ORDER

          BRIAN C. WIMES UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is Defendant Cheri Toalson Reisch's motion to dismiss. (Doc. #9). The Court, being duly advised of the premises, denies said motion.

         BACKGROUND

         Plaintiff Mike Campbell brings a 42 U.S.C.§ 1983 claim against Defendant, Missouri state representative Cheri Toalson Reisch, alleging that Reish violated his First Amendment rights by blocking him from commenting on her Twitter account. Campbell seeks declaratory and injunctive relief.

         Under the allegations of Campbell's first amended complaint (Doc. #22), [1] Reisch is a State Representative for the 44th District of the Missouri House of Representatives. Reisch uses a social media platform Twitter. Reisch has operated a Twitter account under the handle[2] “@CheriMO44” since September 2015 (“Account”). Her Twitter profile states: “Christian, MO State Rep 44th District, Mother, Grandmother.”

         Twitter is a social media platform owned and operated by Twitter, Inc., with more than 300 million active users worldwide. Twitter enables users to publish short messages to the general public called “tweets, ” to republish or respond to others' tweets, and to interact with other users. Twitter users may “follow” other Twitter users. A followed user's tweets automatically appear in the following user's Twitter feed - a continually updating scroll of new tweets from other users. A user may comment on other users' tweets, or “retweet” their tweets to her own followers. Twitter also enables its users to block particular users from following their tweets. A blocked user who attempts to follow the blocking user will see a message informing the blocked user about the blocking.

         Campbell, a resident of Centralia, Missouri, is registered to vote in Missouri's 44th district, for which Reisch sits. Plaintiff is active on social media platforms, including Twitter, which he uses to follow and comment on posts by various state officials, including Reisch. Campbell alleges that Reisch uses her Account to address her constituents, tout her accomplishments as a state representative, and promote her political agenda. Some examples of such tweets alleged in the complaint include: (i) a May 18, 2018 retweet of a message from House Speaker Todd Richardson with the comment, “Thank you Mr. Speaker, you are a true gentleman. We worked hard and got the job done”; (ii) a May 23, 2018 tweet, “Great to have Governor @EricGreitens & Hallsville Mayor at the NRA Bianchi Cup today”; (iii) a June 13, 2018 tweet, “Accomplished much in my 1st 2 years, ready for the next 2.” Reisch also uses the account to tweet about various subjects of personal interest to her.

         On June 22, 2018, Reisch tweeted about her appearance at a public event, at which her political opponent in the November 6, 2018 general election, Maren Jones, also appeared. Resich tweeted “Sad my opponent put her hands behind her back during the Pledge.” On June 23, 2018, Representative Kip Kendrick criticized Reisch's tweet by commenting, “Maren's father was a Lieutenant in the Army. Two of her brothers served in the military. I don't question [Maren's] patriotism. That's a low blow and unacceptable from a member of the Boone County delegation.” Campbell retweeted Kendrick's criticism in Reisch's Account. After this retweet, Reisch permanently blocked Campbell from following or commenting on her Account.

         Reisch also allegedly blocked dozens of other Twitter users from seeing or commenting on her tweets, including many of her own constituents in the 44th House District.

         Campbell claims that such blocking is an impermissible viewpoint-based restriction that violates his free speech rights under the First and Fourteenth Amendments. In the instant motion, Reisch moves the Court to dismiss Campbell's complaint for insufficient pleading under Fed.R.Civ.P. 12(b)(6).

         LEGAL STANDARD

         Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a 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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S. at 678.

         ANALYSIS

         Reisch moves for dismissal of Campbell's § 1983 claim, alleging that he failed to state a claim upon which relief may be granted, because he failed to properly allege sufficient factual matter to plead both of the “under the color of state law” and the “deprivation” elements of the claim. Campbell responds that his allegations as to both elements are adequate under Fed.R.Civ.P. 12(b)(b).

         A. The Motion to Dismiss is Denied.

         To state a § 1983 claim, Campbell must plead that (1) “[he was] deprived of a right secured by the Constitution or laws of the United States, ” and (2) “the alleged deprivation was committed under color of state ...


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