Ball v. City of Lincoln, Nebraska et al

Filing 27

MEMORANDUM AND ORDER - The Motion to Dismiss (Filing No. 20 ) filed by Defendants Chris Buetler and James Peschong is granted; and Larry Ball's claims against Defendants Chris Buetler and James Peschong are dismissed with prejudice. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LARRY BALL,
Plaintiff,

8:15CV95

vs.
MEMORANDUM AND ORDER
CITY OF LINCOLN, NEBRASKA, CHRIS
BUETLER, Mayor of the City of Lincoln;
JAMES PESCHONG, Lincoln Chief of
Police; and SMG, a Pennsylvania
General Partnership;
Defendants.

This matter is before the Court on the Motion to Dismiss (Filing No. 20) filed by
Defendants Chris Buetler (“Beutler”) and James Peschong (“Peschong”). For the
reasons stated, the Motion will be granted and the claims filed by Plaintiff Larry Ball
(“Ball”) against Beutler and Peschong will be dismissed.
BACKGROUND
The Court’s Memorandum and Order (Filing No. 24) dated April 15, 2015,
contains a more detailed factual summary of Ball’s allegations. The Court provides the
following facts by way of summary for the purposes of this Motion:
Beutler is the Mayor of the City of Lincoln and Peschong is the Chief of Police for
the City of Lincoln.

Defendant SMG is an international company that manages

hundreds of stadiums and arenas and had a contract to manage Lincoln’s Pinnacle
Bank Arena (the “Arena”). SMG adopted a policy (the “Policy”) regarding access to the
Arena property. The Policy prohibited unauthorized leafletting, signature gathering,
promotional material distribution, merchandise sales, and picketing within certain areas

in and near the Arena (the “Policy Zone”) including certain exterior space (the “Plaza
Area”) that SMG considered to be a nonpublic forum.
Ball is a citizen of Lancaster County, Nebraska. As part of his religious devotion,
Ball attempts to share Christian messages by passing out pamphlets. On March 15,
2014, Ball was handing out pamphlets to people entering and leaving the Arena. Ball
was confronted several times by SMG employees, who told him to leave. Ball did leave
but soon returned, and SMG employees again told him to leave. Ball refused and police
were called.

Ball was arrested and ticketed by the Lincoln Police Department for

trespassing and refusing to comply under the Lincoln Municipal Code.
Ball was arrested again and ticketed for trespassing on March 5, 2015.
Defendants assert that Ball was leafleting in the Plaza Area. SMG staff provided Ball
with a copy of the Policy and asked Ball to move out of the Plaza Area to the nearby
sidewalk.

Ball refused to move, and Lincoln City Police officers cited him for

trespassing. After receiving the citation, Ball left the Arena property.
On March 7, 2015, Ball was again leafletting near the Arena. Defendants
contend he was in the Plaza Area. He was asked to move; he refused; and he was
cited for trespassing. Ball asserts that when he was ticketed, he was on a sidewalk
designated as a public thoroughfare. After being cited, Ball left the Arena property.
Ball filed this lawsuit on March 12, 2015, alleging that, inter alia, the Defendants
violated his First Amendment rights when he was cited for violating the Policy. On April
15, 2015, the Court denied Ball’s Motion for Preliminary Injunction, concluding that Ball
was unlikely to prevail on his First Amendment claims.

Specifically, the Court

concluded that based upon the evidence before the Court, Ball was unlikely to show
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that the Plaza Area was a public forum. Defendants Beutler and Peschong move the
Court for an order dismissing them on qualified immunity grounds or, in the alternative,
because Ball has failed to state a claim upon which relief can be granted.
STANDARD OF REVIEW
A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[A]lthough a complaint need
not include detailed factual allegations, ‘a plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.’” C.N. v. Willmar Pub. Sch.,
Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30 (8th Cir. 2010) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). “Instead, the complaint must set forth ‘enough
facts to state a claim to relief that is plausible on its face.’” Id. at 630 (citing Twombly,
550 U.S. at 570).
“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.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks
omitted).

“Courts must accept . . . specific factual allegations as true but are not

required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc.,
643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451,
459 (8th Cir. 2010)) (internal quotation marks omitted). “A pleading that merely pleads
‘labels and conclusions,’ or a ‘formulaic recitation’ of the elements of a cause of action,
or ‘naked assertions’ devoid of factual enhancement will not suffice.” Hamilton v. Palm,
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621 F.3d 816, 817-18 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The complaint’s
factual allegations must be “sufficient ‘to raise a right to relief above the speculative
level.’” Williams v. Hobbs, 658 F.3d 842, 848 (8th Cir. 2011) (quoting Parkhurst v.
Tabor, 569 F.3d 861, 865 (8th Cir. 2009)).
When ruling on a defendant's motion to dismiss, a judge must rule “on the
assumption that all the allegations in the complaint are true,” and “a well-pleaded
complaint may proceed even if it strikes a savvy judge that actual proof of those facts is
improbable, and ‘that a recovery is very remote and unlikely.’” Twombly, 550 U.S. at
555, 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint,

however, must still “include sufficient factual allegations to provide the grounds on which
the claim rests.” Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009).
“Two working principles underlie . . . Twombly. First, the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.”

Id. at 679 (citing Twombly, 550 U.S. at 556).

“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.

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DISCUSSION
Ball asserts claims against Beutler and Peschong “individually and in [their]
official capacity.”1

(Compl., Filing No. 1 ¶¶ 5-6.)

“Defendants may be entitled to

qualified immunity for those claims brought against them in their individual capacities.”
Handt v. Lynch, 681 F.3d 939, 943 (8th Cir. 2012) (citing McRaven v. Sanders, 577
F.3d 974, 980 (8th Cir. 2009)). “Qualified immunity shields public officials performing
discretionary functions from liability for conduct that ‘does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Parker v. Chard, 777 F.3d 977, 979 (8th Cir. 2015) (quoting Meehan v. Thompson, 763
F.3d 936, 940 (8th Cir. 2014)). “It ‘gives government officials breathing room to make
reasonable but mistaken judgments about open legal questions’ and ‘protects all but the
plainly incompetent or those who knowingly violate the law.’” Id. (quoting Ashcroft v. al–
Kidd, 131 S.Ct. 2074, 2085 (2011)).

An official is entitled to dismissal based on

qualified immunity “unless (1) the evidence, viewed in the light most favorable to the
nonmoving party, establishes a violation of a federal constitutional or statutory right, and
(2) the right was clearly established at the time of the violation.” Capps v. Olson, 780
F.3d 879, 884 (8th Cir. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

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The Court need not address Ball’s “official capacity” claims. It is long established that “[o]fficialcapacity suits . . . generally represent only another way of pleading an action against an entity of which an
officer is an agent. . . . As long as the government entity receives notice and an opportunity to respond,
an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal marks and citations omitted). There is no
dispute that the entity of which Beutler and Peschong are agents, the City of Lincoln, is a party to this suit
and has had an opportunity to respond.

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The Court, in its discretion, may address either prong first. Ashcroft v. al-Kidd, 131 S.Ct.
2074, 2080 (2011). If no reasonable fact finder could answer both questions affirmatively,
then the defendant is entitled to qualified immunity. Nance v. Sammis, 586 F.3d 604, 609
(8th Cir. 2009).

Even if Ball can prove that Beutler and Peschong somehow personally violated
Ball’s constitutional rights, he cannot show that such rights were clearly established.
“[T]he right the official is alleged to have violated must have been clearly established in
a . . . particularized . . . sense: The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Capps,
780 F.3d at 885-86 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (internal
marks omitted). “The salient question is whether the state of the law at the time of an
incident provided fair warning to the defendants that their alleged conduct was
unconstitutional.” Id. at 886 (quoting Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per
curiam)) (internal marks omitted). “This inquiry . . . must be undertaken in light of the
specific context of the case, not as a broad general proposition.” Id. (quoting Saucier v.
Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson, 555 U.S. at
236).
Ball’s only cognizable claims against Beutler and Peschong relate to enforcing
SMG’s Policy. Thus, in the specific context of this Motion, the Court must examine
whether Ball had a clearly established constitutional right to distribute literature within
the Plaza Area. The Court has addressed Ball’s arguments in the context of his Motion
for Preliminary Injunction and incorporates its analysis in this Memorandum and Order.
(See Memorandum and Order, Filing No. 24 at 6-20.) The Court previously found Ball
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is not likely to prevail on his argument that the Plaza Area is a traditional public forum.
At the very least, significant legal and factual questions remain as to whether the Plaza
Area is actually a public forum for purposes of expressive activity. Thus, even if it were
demonstrated that Beutler or Peschong had some personal responsibility for enforcing
the SMG Policy, it cannot be said that excluding Ball from the Plaza Area violated his
clearly established right, and Beutler and Peschong are entitled to qualified immunity.
CONCLUSION
For the reasons stated, Ball has not demonstrated that Defendants Beutler and
Peschong violated Ball’s clearly established constitutional rights. Accordingly,
IT IS ORDERED:
1.

The Motion to Dismiss (Filing No. 20) filed by Defendants Chris Buetler
and James Peschong is granted; and

2.

Larry Ball’s claims against Defendants Chris Buetler and James Peschong
are dismissed with prejudice.

Dated this 3rd day of June, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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