Sundquist v. Nebraska

122 F. Supp. 3d 876, 2015 U.S. Dist. LEXIS 104601, 2015 WL 4727497
CourtDistrict Court, D. Nebraska
DecidedAugust 10, 2015
DocketNo. 8:14-CV-220
StatusPublished
Cited by4 cases

This text of 122 F. Supp. 3d 876 (Sundquist v. Nebraska) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sundquist v. Nebraska, 122 F. Supp. 3d 876, 2015 U.S. Dist. LEXIS 104601, 2015 WL 4727497 (D. Neb. 2015).

Opinion

MEMORANDUM AND ORDER

JOHN M. GERRARD, District Judge.

This matter is before the Court on the defendants’ motion to dismiss (filing 11). The plaintiff, Marvin Douglas Sundquist, is proceeding pro se and is suing the defendants under 42 U.S.C. § 1983 for allegedly violating his constitutional rights by requiring him to attend Alcoholics Anonymous (“A.A.”) meetings as a condition of maintaining his probationary license to practice massage therapy. For the reasons discussed below, the defendants’ motion will be granted in part and denied in part.

BACKGROUND1

According to Sundquist’s complaint, in 2013, he possessed a probationary license to practice massage therapy in the State of Nebraska. See filing 1 at 2, 4. Sundquist does not allege how or why he was on probation. But public records associated with Sundquist’s state licensure help clear up what transpired (to some extent).2

In December 2012, the Nebraska . Department of Health and Human Services (“NDHHS”) offered Sundquist a probationary massage license. As part of that offer, NDHHS required Sundquist to comply with the recommendations of an alcohol assessment completed in October 2012. In particular, it required Sundquist to: “Develop a sober support system such as attending twelve step meetings such as Alcoholics Anonymous. To comply with this recommendation, you .must attend a [880]*880minimum of 1 Alcoholics Anonymous meeting per week.” See Licensure Records, Letter of December 4, 2012, at 2.

Apparently Sundquist accepted the offer of a probationary license. However, Sund-quist alleges that he objected to the requirement that he attend A.A. meetings, based upon his (unspecified) “religious objections.” Filing 1 at 2. In October 2013, the Nebraska Attorney General’s Office, through Assistant Attorney General Ed Vierk, filed a motion with the NDHHS’s Division of Public Health to revoke Sund-quist’s license, based on his failure to attend A.A. meetings. See filing 1 at 1-2; see also Licensure Records, Petition to Revoke Probation (Oct. 10, 2013). The Attorney General’s Office also made Sund-quist a settlement offer, but the offer required Sundquist to attend A.A. meetings. Filing 1 at 2. Sundquist alleges that he contacted Vierk and informed him' thát he objected to attending A.A. but that the remainder of the settlement- was acceptable. The Attorney General’s Office declined to remove that requirement.

Sundquist also alleges that he proposed a secular ■ alternative: treatment by the same licensed alcohol and drug counselor who had provided the October 2012 evaluation the State had relied upon in imposing probation. But, Sundquist alleges, his licensing probation compliance monitor, defendant Ruth Schuldt, rejected this alternative and insisted that Sundquist-attend A.A. Filing 1 at 2-3.

Sundquist brings this case against the State of Nebraska, the Nebraska Attorney General’s Office, NDHHS, former Nebraska Attorney General Jon Bruning, Vierk, Schuldt, and Joseph Acierno, who was the Chief Medical Officer and Director of NDHHS’s Division of Public Health.3 Filing 1 at 1. Sundquist alleges that as a result of the defendants’actions to revoke his massage license, his career as a massage therapist has been ruined. He further alleges that by seeking revocation of his license, defendants caused him to be unemployed from December 2013 to January 2014, while he waited to find out what would happen to his license. Filing 1 at 1, 3-4. Sundquist seeks damages for these lost wages and other alleged consequences of his inability to practice massage therapy. Filing 1 at 4. He also seeks injunctive relief “preventing any employees or departments within the State of Nebraska from requiring similar religious activities against their [sic] religious objections.” Filing i at 3.

STANDARD OF REVIEW

Jurisdiction-Fed.R.Civ.P. 12(b)(1) -

A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges whether the Court has subject matter jurisdiction. The party asserting subject matter jurisdiction bears the' burden of proof. Great Rivers Habitat Alliance v. FEMA 615 F.3d 985, 988 (8th Cir.2010). A Rule 12(b)(1) motion can be presented as either a “facial” or “factual” challenge. Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990).

Sovereign immunity is a jurisdictional, threshold matter that is properly addressed under Rule 12(b)(1). See, Lors v. Dean, 746 F.3d 857, 861 (8th Cir.2014); Brown v. United States, 151 F.3d 800, 803-04 (8th Cir.1998). Here, defendants’ sovereign immunity defense is brought as a [881]*881facial challenge, and so the Court restricts itself to the face of the pleadings, and the Sundquist receives the same protections as he would facing a Rule 12(b)(6) motion.

Failure to State a Claim-Fed. R. Civ. P. 12(b)(6),.

To survive, a motion to, dismiss .under Fed.R.Civ.P. 12(b)(6), 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). 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. Id. While the Court must accept as true all facts pleaded by the nonmoving'party and grant all reasonable inferences from the pleadings in favor of the nonmoving party, Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir.2012), a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. at 679,129 S.Ct. 1937.

ANALYSIS

In their motion to dismiss,, defendants first argue that Sundquist’s claims against the State, the Attorney General’s Office, 'and NDHHS,’as well as against all the individual defendants in their official capacities, are barred by sovereign immunity.4 Next, defendants argue- that Sund-quist has failed to allege facts plausibly suggesting personal involvement by Brun-ing or Aciemo, and so the claims against them in their individual capacities must be dismissed for failure to state a claim. Finally, defendants argue that the remaining defendants, Schuldt and Yierk, sued in their individual capacities, are entitled to qualified immunity. The Court finds merit in defendants’ first two arguments, but not their third.

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122 F. Supp. 3d 876, 2015 U.S. Dist. LEXIS 104601, 2015 WL 4727497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sundquist-v-nebraska-ned-2015.