Sundquist v. State of Nebraska et al
MEMORANDUM AND ORDER that Defendants' motion to dismiss 11 is granted in part and denied in part. Sundquist's Motion for Extension of Time 19 is denied. Defendants' objection 20 is denied as moot. Ordered by Judge John M. Gerrard. (Copy e-mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARVIN DOUGLAS SUNDQUIST,
MEMORANDUM AND ORDER
STATE OF NEBRASKA, et al.,
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.
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
For purposes of the pending motion, the Court accepts as true the facts alleged in
Sundquist's complaint. See Fed. R. Civ. P. 12(b)(6). And because Sundquist is proceeding
pro se, the Court construes his complaint liberally. See Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 849 (8th Cir. 2014).
The facts in the following paragraph are taken from the public records associated with
Sundquist's licensure, which may be found at Nebraska Department of Health and Human
https://www.nebraska.gov/LISSearch/search.cgi (last visited July 31, 2015) [hereinafter
"Licensure Records"]. The Court is not, at this time, taking judicial notice of these facts, but
simply providing them for background purposes.
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 minimum 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, Sundquist 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 Sundquist'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 Sundquist 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 that 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
The Court is aware that Bruning and Acierno no longer hold those offices. But as
explained below, the Court will dismiss Sundquist's claims against them in their individual
capacities, and their successors will be substituted for them in their official capacities. See
Fed. R. Civ. P. 25(d). The defendants' counsel should make a motion for such substitution
as soon as is practicable.
relief "preventing any employees or departments within the State of
Nebraska from requiring similar religious activities against their [sic]
religious objections." Filing 1 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 facial
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
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
(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. 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.
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 Sundquist has failed to
allege facts plausibly suggesting personal involvement by Bruning or Acierno,
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 Vierk, sued in their individual capacities,
are entitled to qualified immunity. The Court finds merit in defendants' first
two arguments, but not their third. Accordingly, Sundquist's claims for
damages will be dismissed, with the exception of his claims against Schuldt
and Vierk in their individual capacities. Defendants have not addressed
Sundquist's request for injunctive relief. Therefore, that claim will proceed
against all defendants.5
The Eleventh Amendment immunizes an unconsenting state from
damage actions brought in federal court, except when Congress has
abrogated that immunity for a particular federal cause of action. Becker v.
Univ. of Neb. at Omaha, 191 F.3d 904, 908 (8th Cir. 1999). This immunity
encompasses not only actions where a state is actually named as a defendant,
but also certain actions against state instrumentalities. Id.
There are three exceptions to Eleventh Amendment immunity. First, a
state may waive immunity by consenting to suit in federal court; second,
Congress may abrogate the state's immunity through a valid exercise of its
powers; and third, under Ex parte Young, 209 U.S. 123 (1908), a plaintiff may
file suit against state officials seeking prospective equitable relief for ongoing
violations of federal law. Peirick v. Ind. Univ.-Purdue Univ. Indianapolis
Athletics Dep't, 510 F.3d 681, 695 (7th Cir. 2007).
Nebraska has not consented to suit, Becker, 191 F.3d at 908, and
Congress did not abrogate the state's immunity in passing § 1983. Will v.
Mich. Dept. of State Police, 491 U.S. 58, 66–67 (1989); Burk v. Beene, 948 F.2d
489, 492-93 (8th Cir. 1991). Thus (with the exception of his request for
injunctive relief) Sundquist's claims against the State of Nebraska are barred
by sovereign immunity. The Attorney General's Office and NDHHS are arms
Individual-capacity suits seek to impose personal liability upon a government official for
actions he or she takes under color of state law. Hafer v. Melo, 502 U.S. 21, 25 (1991).
Official-capacity suits, in contrast, generally represent only another way of pleading an
action against an entity of which an officer is an agent. Id. Thus, suits against state officials
in their official capacities are treated as suits against the state itself. See id.
This is not to suggest that Sundquist's claim for injunctive relief is plausible, or even that
he has standing to bring such a claim on behalf of other, unspecified persons. But, for the
simple reason that defendants have not moved to dismiss it, the claim remains pending for
the time being.
of the state, and are therefore also entitled to sovereign immunity. See
Hadley v. North Arkansas Community Technical College, 76 F.3d 1437, 1438
(8th Cir. 1996). And to the extent Sundquist has sued Bruning, Acierno,
Vierk, and Schuldt in their official capacities, his suit is in reality one against
the state, and those claims are likewise barred by sovereign immunity. See
Zajrael v. Harmon, 677 F.3d 353, 355 (8th Cir. 2012). In sum, the Court will
dismiss Sundquist's claims for damages against the State, the Attorney
General's Office, NDHHS, and the individual defendants sued in their official
CLAIMS AGAINST BRUNING AND ACIERNO
The doctrine of respondeat superior does not apply to § 1983 cases. See
Jackson v. Nixon, 747 F.3d 537, 543 (8th Cir. 2014). Thus, to state a claim
against defendants in their individual capacities, Sundquist must plead facts
suggesting that defendants were personally involved in the alleged violations
of his constitutional rights. Id. The general duty of supervising is insufficient
to establish personal involvement. See Keeper v. King, 130 F.3d 1309, 1314
(8th Cir. 1997). Supervisors can, however, incur liability when their
corrective inaction amounts to deliberate indifference to or tacit
authorization. See Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012).
Sundquist has failed to allege facts plausibly suggesting that Bruning or
Acierno were personally involved in the alleged violations of his
constitutional rights, or that they were deliberately indifferent to those
violations. Accordingly, Sundquist's individual-capacity claims against
Bruning and Acierno will be dismissed for failure to state a claim.
QUALIFIED IMMUNITY FOR REMAINING DEFENDANTS SCHULDT AND VIERK
Sundquist argues that by requiring him to attend A.A. over his
objections, on pain of losing his massage license, defendants violated his
rights under the Establishment Clause and Free Exercise Clause. Schuldt
and Vierk contend that, in 2013, it was not clearly established that this
violated Sundquist's rights, and therefore, they argue, they are entitled to
The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012);
But because the dismissal is on jurisdictional grounds, it is without prejudice. See Hart v.
United States, 630 F.3d 1085, 1091 (8th Cir. 2011); see also, Ernst v. Rising, 427 F.3d 351,
366–67 (6th Cir. 2005); Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 846–47 (9th
Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity balances
two important interests—the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties
reasonably. Pearson, 555 U.S. at 231. In short, the plaintiff must plead facts
showing that (1) the defendants violated a statutory or constitutional right,
and (2) the right was clearly established at the time of the challenged
conduct. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). And the Court has
discretion to decide which of the two prongs of qualified-immunity analysis to
tackle first. Id.
For these purposes, a government official's conduct violates clearly
established law when, at the time of the challenged conduct, the contours of a
right are sufficiently clear that any reasonable official would have understood
that what he is doing violates that right. Ashcroft, 131 S. Ct. at 2080.
Whether an official protected by qualified immunity may be held personally
liable for an allegedly unlawful official action turns on the objective legal
reasonableness of the action, assessed in light of the legal rules that were
clearly established at the time it was taken. Messerschmidt, 132 S. Ct. at
1245; Pearson, 555 U.S. at 244. The protection of qualified immunity applies
regardless of whether the government official's error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.
Messerschmidt, 132 S. Ct. at 1245. Qualified immunity gives government
officials breathing room to make reasonable but mistaken judgments, and
protects all but the plainly incompetent or those who knowingly violate the
law. Id. at 1244; see also Ashcroft, 131 S. Ct. at 2085.
Both sides have focused their arguments on cases where an unwilling
prisoner, parolee, or (criminal) probationer has been forced to participate in
A.A. (or a similar program). Due to the A.A.'s program's religious content,
such conduct has been held to be coerced religious participation, in violation
of the Establishment Clause. See, e.g., Jackson v. Nixon, 747 F.3d 537, 543
(8th Cir. 2014); Inouye v. Kemna, 504 F.3d 705, 711-12 (9th Cir. 2007);
Warner v. Orange Cnty. Dep't of Prob., 115 F.3d 1068, 1074-75 (2d Cir. 1997);
Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir. 1996). That is to say, if a court or
corrections official specifically orders a person to attend A.A., over their
objections and without offering a meaningful choice, then an Establishment
Clause violation has occurred. See id. And it has further been held, in this
context, that the right to be free from such coerced participation is clearly
established. Inouye, 504 F.3d at 714-16.
The extent of defendants' argument in support of qualified immunity is
that Jackson was not decided until 2014—after the alleged violations in this
case—and therefore, the right could not be considered clearly established in
the Eighth Circuit in 2013. The defendant's argument—that just because the
Eighth Circuit has not addressed an issue it is not clearly established—is
wrong. The Eighth Circuit has explicitly rejected such a strict approach to
qualified immunity. See Johnson–El v. Schoemehl, 878 F.2d 1043, 1049 (8th
Cir. 1989). Instead, the Eighth Circuit subscribes to a "broad view" of what
constitutes clearly established law: in the absence of binding precedent, the
Court should look to all available decisional law, including decisions of state
courts, other circuits, and district courts. Tlamka v. Serrell, 244 F.3d 628, 634
(8th Cir. 2001).
The holdings of Jackson and Inouye, among other cases, to the effect
that prisoners, probationers, and parolees cannot be forced to participate in
A.A., do not directly answer the question at hand. There is a difference
between the coercion exerted through the criminal justice system, where
liberty is at stake, and the coercion at issue here. But the Court nonetheless
finds, by examining the general Establishment Clause principles animating
these cases, and based upon other, more analogous cases, that Sundquist's
asserted right was clearly established in 2013.
In Jackson, the plaintiff alleged that he was required to attend and
complete a non-secular substance abuse program in order to be eligible for
early parole. Jackson, 747 F.3d at 541. The Eighth Circuit held this to violate
the Establishment Clause. The Jackson court began by observing that, in Lee
v. Weisman, 505 U.S. 577, 588–89 (1992) the Supreme Court emphasized
that, "at a minimum, the Constitution guarantees that government may not
coerce anyone to support or participate in religion or its exercise." See
Jackson, 747 F.3d at 541.
In evaluating a plaintiff's claim "that the state is coercing him or her to
subscribe to religion generally, or to a particular religion," the Seventh
Circuit has described a three-step inquiry, distilled from the principles
underlying the Supreme Court's holding in Lee. Kerr, 95 F.3d at 479. That
test asks: first, has the state acted; second, does the action amount to
coercion; and third, is the object of the coercion religious or secular? Id. at
479. In Jackson, the Eighth Circuit approved of and adopted this framework
in analyzing the claim before it. Jackson, 747 F.3d at 542. The court accepted
Jackson's allegations that the program contained some religious content, and
there was no dispute that the state had acted. So, the real dispute was the
second prong of the Kerr test: whether the state's action constituted coercion.
Id. The Jackson court found that it was.
The Court of Appeals acknowledged that even if Jackson completed the
substance abuse treatment program, he would not have been guaranteed
early parole. Id. at 542. But his progress toward early parole did, in fact, stop
when he left the program. Id. The Court of Appeals also acknowledged that
Jackson had no constitutional right to early parole. Id. at 543. Even so, the
Court of Appeals found that the state had exerted coercive pressure:
While inmates have no constitutional right to early
parole, . . . Jackson does have the right to be free from
unconstitutional burdens when availing himself of existing ways
to access the benefit of early parole. The fact that Jackson did not
have a constitutional right to, or statutory guarantee of, early
parole does not preclude him from stating a claim of
unconstitutional coercion. "It is a tenet of the First Amendment
that the State cannot require one of its citizens to forfeit his or her
rights and benefits as the price of resisting conformance to statesponsored religious practice." Lee, 505 U.S. at 596; Kerr, 95 F.3d
at 474–75 (state "impermissibly coerced inmates to participate in
a religious program" when the "penalty" for nonattendance at NA
meetings was a potential "adverse impact on an inmate's security
risk rating" and on his parole eligibility, though no inmate had
ever received the risk rating penalty); Griffin v. Coughlin, 673
N.E.2d 98, 106 (N.Y. 1996) (state's requirement that inmates
attend substance abuse treatment program's AA meetings to be
eligible for the jail's discretionary Family Reunion Program was
coercive). The Missouri Board of Probation and Parole may have
discretion in deciding whether to grant early parole . . . , but that
fact alone does not shield the defendants from potential liability
for implementing a program that is alleged to violate the First
Id. (emphasis supplied) (citations omitted and modified for completeness).
When confronted with a similar question, the Ninth Circuit also
adopted the Kerr framework. See Inouye, 504 F.3d at 713. The Inouye court
held that the law not only clearly prohibited such coerced participation in
A.A. programs, but that this law "was and is very clear." Id. at 711.
For the government to coerce someone to participate in religious
activities strikes at the core of the Establishment Clause of the
First Amendment, whatever else the Clause may bar. As Justice
Black wrote in the first modern Establishment Clause case,
Everson v. Board of Education of Ewing Township, 330 U.S. 1,
15–16 (1947), the clause "means at least" that "[n]either a state
nor the Federal Government . . . . can force nor influence a person
to go to or to remain away from church against his will or force
him to profess a belief or disbelief in any religion. No person can
be punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance." This core
holding has consistently been emphasized by the Court. "It is
beyond dispute that, at a minimum, the Constitution guarantees
that government may not coerce anyone to support or participate
in religion or its exercise." Lee, 505 U.S. at 587 . . . .
Inouye, 504 F.3d at 712–13 (emphasis supplied) (citations modified).
As the foregoing shows, the holdings of Jackson and Inouye were
straight-forward application of well established, core Establishment Clause
principles. And while officers cannot be expected to predict the future course
of constitutional law, the law may be clearly established even if there is no
case directly on point. Wilson v. Layne, 526 U.S. 603, 615–617 (1999). Still, if
the only cases on point arose in the probationer/parolee context, the Court
might hesitate to find that the right asserted by Sundquist was clearly
established. Sundquist faced not the loss of his liberty but the loss of his
livelihood. However, there are other, more analogous cases, which clearly
establish that this type of pressure nonetheless amounts to coercion.
In Torcaso v. Watkins, the Supreme Court held that the Establishment
Clause does not permit a state to refuse a citizen public office (as a notary) for
his failure to declare his belief in God. 367 U.S. 488 (1961). The Torcaso
Court "repeat[ed] and again reaffirm[ed]" its earlier holding in Everson: "that
neither a State nor the Federal Government can constitutionally force a
person 'to profess a belief or disbelief in any religion.' Neither can [they]
constitutionally pass laws or impose requirements which aid all religions as
against non-believers . . . ." Id. at 495 (quoting Everson, 330 U.S. at 15). The
Torcaso court rejected the lower court's finding that the plaintiff was not
coerced because he was not compelled to hold office. Id. at 495.
The fact, however, that a person is not compelled to hold public
office cannot possibly be an excuse for barring him from office by
state-imposed criteria forbidden by the Constitution. This was
settled by our holding in Wieman v. Updegraff, 344 U.S. 183
(1952). We there pointed out that whether or not "an abstract
right to public employment exists," Congress could not pass a law
providing ". . . that no federal employee shall attend Mass or take
any active part in missionary work."
Id. at 495–96 (citation modified).
More recent cases have confirmed that the Establishment Clause is
violated when coercion is exerted by placing a public employee's job at stake.
For example, in Venters v. City of Delphi, the Seventh Circuit held that
discharging a public employee for not living up to her boss's religious
expectations would "of course amount to a violation" of the Establishment
Clause. 123 F.3d 956, 970 (7th Cir. 1997) (emphasis supplied). The Venters
court went on to hold that even if the plaintiff's termination was "untainted
by religious considerations," she may nonetheless have been subject to
impermissible coercion if a jury believed her allegations that "she was
repeatedly subjected to workplace lectures by [her supervisor] on his views of
appropriate Christian behavior, to admonitions that she needed to be 'saved'
and faced damnation, and to rather intimate inquiries into her social and
religious life," and where the supervisor had "threatened to fire those whom
he viewed as immoral." Id. Similarly, in Marrero-Mendez v. Pesquera, 2014
WL 4109518 (D.P.R. Aug. 19, 2014), the Court found an Establishment
Clause violation where a police officer was forced to stand in formation and
observe a prayer led by the commanding officer; and where after plaintiff
complained, he was removed from his regular duties. The court moreover
found that the right to be free from such coercion was clearly established. Id.
These cases rest upon a basic principle, one "made clear" by the
Supreme Court: "that the type of coercion that violates the Establishment
Clause need not involve either the forcible subjection of a person to religious
exercises or the conditioning of relief from punishment on attendance at
church services." DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397,
407 (2d Cir. 2001) (citing Lee, 505 U.S. at 586–99; Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290, 311–13 (2000)). "Coercion is also impermissible when it
takes the form of 'subtle coercive pressure' that interferes with an
individual's 'real choice' about whether to participate in worship or prayer."
Id. at 412 (quoting Lee, 505 U.S. at 592, 595). And the government "'may no
more use social pressure to enforce orthodoxy than [it] may use more direct
means.'" Id. (quoting Lee, 505 U.S. at 594; Santa Fe Indep. Sch. Dist., 530
U.S. at 312)) (cited with approval in Jackson, 747 F.3d at 541 & n.1).
The Court finds that, by 2013, it was clearly established that the
government could not condition public employment on participation in
religious activity. And it is equally clear that the government may not place
such a condition on an individual's ability to practice a private, but regulated,
occupation. There is no meaningful distinction in the coercive pressure
exerted: what holds true for notaries and police officers is just as true for
massage therapists. When the right to earn a living in one's chosen profession
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is at stake, the government has interfered with the right to make a real
choice about whether or not to participate in religious activity.
Applying the Kerr framework, the Court finds that Sundquist has
alleged a plausible claim under the Establishment Clause. There is no
dispute that the state has acted. Nor do defendants dispute Sundquist's
allegations that the A.A. program contained substantial religious
components. Indeed, it is clearly established that the typical A.A. program
involves substantial religious components, such that it falls within the sphere
of the Establishment Clause. See DeStefano, 247 F.3d at 407. Finally, the
Court finds that Sundquist has plausibly alleged that he was subjected to
impermissible coercion: he was forced to choose between participation in a
program he objected to or continuing to earn a living in his chosen profession.
Sundquist may have agreed to participate in A.A. as a term of his
probationary license. But that choice—to participate in A.A. or lose his
livelihood—may have been the result of state-sponsored coercion rather than
a voluntary choice. See Jackson, 747 F.3d at 541. At this stage of litigation, it
is too early to say that by agreeing, Sundquist has forfeited his claim.7 See id.
In sum, the Court finds that Sundquist has alleged a plausible claim
under the Establishment Clause, and that defendants Vierk and Schuldt are
not entitled to qualified immunity. It remains to be seen, of course, whether
Sundquist can actually prove his claim and prove that he suffered actual
damages—but he should have the opportunity to do so.
Two final matters bear noting; one substantive and the other
procedural. First, the substantive matter. Sundquist has also alleged that
defendants violated his rights under the Free Exercise Clause. But he has not
presented any argument in support of such a claim—though, to be fair,
defendants have also not moved to dismiss the claim. That said, it appears to
the Court that Sundquist's claim is properly analyzed under the
Establishment Clause, and that the Free Exercise Clause does not add
anything to his case. See Munson v. Norris, 435 F.3d 877, 880–881 (8th Cir.
2006). Therefore, the Court will dismiss Sundquist's Free Exercise claim,
albeit with leave to replead.
The final procedural matter to address is Sundquist's Motion for
Extension of Time (filing 19), which is, in essence, a request to file a sur-reply
Moreover, from the terms of his probationary license, it is not clear that Sundquist
actually did agree to participate in A.A. The terms of his probationary license are perhaps
ambiguous. Sundquist was required to: "Develop a sober support system such as attending
twelve step meetings such as Alcoholics Anonymous." See Licensure Records, Letter of
December 4, 2012, at 2 (emphasis supplied). But the terms of probation then go on to state:
"To comply with this recommendation, you must attend a minimum of 1 Alcoholics
Anonymous meeting per week." Licensure Records, Letter of December 4, 2012, at 2.
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and a request for oral argument. The Court finds that no sur-reply is needed,
nor, at this time, is oral argument. Therefore, Sundquist's motion will be
denied, and defendants' objection (filing 20) to Sundquist's motion will be
denied as moot. Accordingly,
IT IS ORDERED:
Defendants' motion to dismiss (filing 11) is granted in part
and denied in part:
Sundquist's claims for damages against the State of
Nebraska, the Attorney General's Office, and
NDHHS, as well as his claims against the remaining
individual defendants in their official capacities, are
dismissed without prejudice;
Sundquist's individual-capacity claims against
Bruning and Acierno are dismissed for failure to
state a claim;
Sundquist's individual-capacity claims against Vierk
and Schuldt, under the Establishment Clause, may
Sundquist's individual-capacity claims against Vierk
and Schuldt under the Free Exercise Clause are
dismissed, but with leave to replead on or before
August 28, 2015; and
Sundquist's claim for injunctive relief remains
pending against all defendants.
Sundquist's Motion for Extension of Time (filing 19) is
Defendants' objection (filing 20) is denied as moot.
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Dated this 10th day of August, 2015.
BY THE COURT:
John M. Gerrard
United States District Judge
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