                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2610
                                   ___________

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,    *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Western District of Arkansas.
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.     *
                                     ___________

                             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 prosequi1
and forego prosecution of H.P.'s biological father for the felony sexual assault of his
daughter. The district court2 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


      1
       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.

                                          -2-
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.

        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 County, Arkansas police and charged with felony sexual
assault on December 5, 2003.



                                         -3-
       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 Shue 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 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 "ha[d] 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:

                                          -4-
      [We are] convinced that the event occurred and, under normal
      conditions, would have no compunction whatsoever in proceeding to
      trial in this matter. However, . . . [i]n 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 equal protection.3 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,


      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).

                                           -5-
arguing that the district court erred in dismissing their suit because the Fourteenth
Amendment guarantees to crime victims the nondiscriminatory prosecution of crime.

                                            II.

       We review de novo a district court's grant of a 12(b)(6) motion to dismiss. Botz
v. Omni Air Int'l, 286 F.3d 488, 491 (8th Cir. 2002). In doing so we must accept as
true the plaintiff's 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 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

                                            -6-
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 "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

                                         -7-
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 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 "[p]olice 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

                                          -8-
have recognized a right to compel prosecution of a wrongdoer. That the standing
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.4

                                         III.

      For the foregoing reasons, the judgment of the district court is affirmed.5
                           _______________________




      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.

                                         -9-
