Carter v. Muldoon et al

Filing 56

MEMORANDUM AND ORDER - The Objection, ECF No. 50 , filed by Plaintiff John Carter is denied. The Motion to Dismiss, ECF No. 26 , filed by Defendants William Muldoon and Dave Stolz is granted, in part, as follows: The claim for tortious interference with a business relationship or expectancy against Defendants William Muldoon and Dave Stolz, in their individual capacities, is dismissed, with prejudice. The Motion is otherwise denied. The Motion to Dismiss, ECF No. 51 , filed by Defendant Nebra ska Law Enforcement Training Center is granted. Defendant Nebraska Law Enforcement Training Center is dismissed from this action. Plaintiff John Carter's claims for damages under 42 U.S.C. § 1983 against Defendants Nebraska Law Enforcement Training Center and William Muldoon and Dave Stolz, in their official capacities, are dismissed, with prejudice. Plaintiff John Carter's claim under 42 U.S.C. § 1983 for prospective injunctive relief and his claim under Nebraska law for tor tious interference with a business expectancy against Defendants Nebraska Law Enforcement Training Center and William Muldoon and Dave Stolz, in their official capacities, are dismissed, without prejudice. Defendants William Muldoon and Dave Stolz, in their individual capacities, will respond to the remaining claims on or before May 18, 2018. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JOHN M. CARTER, and on behalf of
other Similarly situated;
8:17CV319
Plaintiff,
MEMORANDUM AND ORDER

vs.
WILLIAM MULDOON, individually and in
his official capacity as Director of
NLETC; DAVE STOLZ, individually and
in his official capacity as Counsel for
the NLETC; NEBRASKA LAW
ENFORCEMENT TRAINING CENTER,
and DOES 1-25 INCLUSIVE,
Defendants.

This matter is before the Court on the Motion to Dismiss, ECF No. 26, filed by
Defendants William Muldoon and Dave Stolz, and the Motion to Dismiss, ECF No. 51,
filed by Defendant Nebraska Law Enforcement Training Center (NLETC). Also before
the Court is Plaintiff John Carter’s Objection to Order on Motion to Set Aside Default,
ECF No. 50. For the reasons stated below, the Motion to Dismiss filed by NLETC will
be granted; the Motion to Dismiss filed by Muldoon and Stolz will be granted in part, and
Carter’s Objection will be denied.
BACKGROUND
The following facts are those alleged in the Amended Complaint, ECF No. 1,
which are assumed true for purposes of the Motion to Dismiss.
“On August 14, 2017, Carter entered into an employment agreement with the
Dundy County Sheriff’s Office . . . .” Comp. ¶ 8, ECF No. 1, Page ID 2-3. During

Carter’s first week of employment, Muldoon, the director of the NLETC, called the
county attorney for Dundy County to advise him that Carter’s employment should not be
maintained because Carter had been disbarred in the State of Nebraska six years
earlier. Muldoon believed Carter’s disbarment evidenced a lack of credibility and that
Muldoon subsequently sent “all the

he was unfit to be a law enforcement officer.

information” regarding Carter’s disbarment to the Dundy County Attorney’s Office. Id.
Despite Muldoon’s concerns, the county attorney and the sheriff for Dundy County
decided Carter’s disbarment “would not be much of a consequence in the hiring
decision.” Comp. ¶ 9, ECF No. 1, Page ID 3. Muldoon then contacted Dundy County’s
insurance company and recommended that they refuse to insure Dundy County for any
liabilities based on Carter’s conduct. Carter does not allege that his employment with
the Dundy County Sheriff’s Office was terminated.
In 2014, prior to his employment with Dundy County, the City of Newman Grove,
Nebraska, hired Carter as its chief of police.

The former chief of police contacted

Muldoon and, shortly thereafter, Carter received notification from the mayor that the
offer of employment was rescinded due to Carter’s prior disbarment and related
credibility issues. Carter also alleges that while he was the “assistant and interim Chief
of Police in Tekamah, Nebraska,” Muldoon prevented him from attending a required
management training course offered by the NLETC due to the disbarment. Comp. ¶ 14,
ECF No. 1, Page ID 4-5. Carter eventually was permitted to attend the training 45 days
after he was denied admission.
At some point, Muldoon also sent a letter to the Nebraska Crime Commission
that recommended the Commission revoke Carter’s law enforcement officer credentials.
2

The Commission asked the Nebraska Attorney General to investigate the matter and
the Attorney General’s office concluded that revoking Carter’s credentials was not
necessary. The Commission sent Carter a letter informing him that he was permitted to
continue to serve as an unrestricted law enforcement officer in Nebraska.
Carter alleges that “to the present day, Muldoon and Dave Stolz1 have contacted
every employer known to them that [Carter] sought employment with and interfered with
[his] attempt to gain suitable employment in a law enforcement capacity.” Comp. ¶ 20,
ECF No. 1, Page ID 20. After Muldoon alerted Dundy County of Carter’s disbarment,
the county attorney informed Carter that he expected the defense bar to challenge
Carter’s credibility in connection with his work as a law enforcement officer. Carter
claims he now works in a hostile work environment; that his authority will be consistently
challenged; and that he is no longer safe working as a law enforcement officer. He
asserts that Muldoon and Stolz will continue to interfere with his employment
opportunities because he is a black male, and that there are other non-black individuals
“declared by a Federal District Judge in Nebraska” to be unfit to serve as law
enforcement officers who have not been subjected to the same treatment.
Carter filed this action, pro se, on August 28, 2017, against the NLETC and
against Muldoon and Stolz, in their individual and official capacities. He enumerates the
following claims in his Complaint: (1) “Deprivation of Equal Protection and Due Process”

1

Stolz is “legal counsel and [a] staff member” for the NLETC. Comp. ¶ 3, ECF No. 1, Page ID 1.

3

under 42 U.S.C. § 1982;2 (2) “Conspiracy against Rights” under 18 U.S.C. § 241; (3)
“Racial Discrimination under Color of Law” under 42 U.S.C. § 1981;3 (4) “Deprivation of
Right under Color of Law” under 18 U.S.C. § 242; (5) “Federally Protected Activities”
under 18 U.S.C. § 245; (6) “Interference with Economic Opportunity” under Nebraska
law; and (7) “Injunctive Relief.” Comp., ECF No. 1, Page ID 13-18. The NLETC, and
Muldoon and Stolz, separately moved to dismiss Carter’s Complaint in its entirety under
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
STANDARD OF REVIEW
I. 12(b)(1)—Subject Matter Jurisdiction
“In order to properly dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the factual
truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993) (Osborn
v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). Doe v. Nixon, 716 F.3d 1041,
1047 (8th Cir. 2013).] “In a facial challenge to jurisdiction, the court presumes all of the
factual allegations concerning jurisdiction to be true and will grant the motion only if the
plaintiff fails to allege an element necessary for subject matter jurisdiction.”

Young

America Corp. v. Affiliated Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing
Titus, 4 F.3d at 593). In a factual challenge to jurisdiction, “there is substantial authority
that the trial court is free to weigh the evidence and satisfy itself as to the existence of
2

Construing the Complaint liberally, it is clear that Carter intended to bring his equal protection
and due process claims under 42 U.S.C. § 1983, not 42 U.S.C. § 1982. See Stone v. Harry, 364 F.3d
912, 914 (8th Cir. 2004) (stating pro se complaints are to be construed liberally).
3

Although “a violation of § 1981 may not be brought directly against a state actor, but must be
brought under § 1983,” the Court liberally construes the pro se Complaint as appropriately asserting a
violation of §1981 under § 1983. Lockridge v. Bd. of Trs. of Univ. of Ark., 315 F.3d 1005, 1007 (8th Cir.
2003).

4

its power to hear the case.”

Osborn, 918 F.2d at 730.

“In short, no presumptive

truthfulness attaches to plaintiff’s allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.”

Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing

Osborn, 918 F.2d 724, 730). The plaintiff has the burden of proving jurisdiction exists;
“[h]owever, the ‘heavy’ burden of proving mootness falls on the party asserting the case
has become moot.” Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir.
2004) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “Once the
evidence is submitted, the district court must decide the jurisdictional issue, not simply
rule that there is or is not enough evidence to have a trial on the issue.” Osborn, 918
F.2d 724.
“As no statute or rule prescribes a format for evidentiary hearings on jurisdiction,
‘any rational mode of inquiry will do.’” Brown, 2010 WL 489531, at *2 (citing Osborn,
918 F.2d 724, 730). “So long as the court has afforded the parties notice and a fair
opportunity to be heard, an evidentiary hearing is unnecessary.”

Brown, 2010 WL

489531, at *2 (citing Johnson v. United States, 534 F.3d 958, 964-65 (8th Cir. 2008)).
II. 12(b)(6)—Failure to State a Claim
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). To satisfy this requirement, a
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Corrado v. Life Inv'rs Ins. Co. of Am., 804 F.3d 915, 917 (8th Cir. 2015) (quoting 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
5

inference that the defendant is liable for the misconduct alleged.” Barton v. Taber, 820
F.3d 958, 964 (8th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Zink v. Lombardi, 783 F.3d 1089, 1098 (8th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678), cert. denied, 135 S. Ct. 2941 (2015). The complaint’s
factual allegations must be “sufficient to ‘raise a right to relief above the speculative
level.’” McDonough v. Anoka Cty., 799 F.3d 931, 946 (8th Cir. 2015) (quoting Twombly,
550 U.S. at 555).

The Court must accept factual allegations as true, but it is not

required to accept any “legal conclusion couched as a factual allegation.” Brown v.
Green Tree Servicing LLC, 820 F.3d 371, 373 (8th Cir. 2016) (quoting Iqbal, 556 U.S. at
678). Thus, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Ash v. Anderson Merchandisers, LLC,
799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678), cert. denied, 136 S.
Ct. 804 (2016).
On a motion to dismiss, courts 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)). “Determining whether a complaint
states a plausible claim for relief . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Mickelson v.
Cty. of Ramsey, 823 F.3d 918, 923 (8th Cir. 2016) (alternation in original) (quoting Iqbal,
556 U.S. at 679).
6

DISCUSSION
I. Carter’s Motion
In his “Objection to Order on Motion to Set Aside Default” Carter asks the Court
to reconsider its Memorandum and Order setting aside the Clerk’s entry of default
against the NLETC, ECF No. 49, and asks that the undersigned Judge recuse herself
from this case under 28 U.S.C. § 455(a).
District courts have general discretionary authority to review and revise their
interlocutory rulings prior to the entry of final judgment under Rule 54(b), Auto Servs.
Co. v. KPMG, LLP, 537 F.3d 853, 857 (8th Cir. 2008) (citing Fed. R. Civ. P. 54(b)), but
motions to reconsider are generally disfavored.

See Outdoor Cent., Inc. v.

GreatLodge.com, Inc., 643 F.3d 1115, 1119 (8th Cir. 2011). The Clerk’s entry of default
against NLETC was properly set aside, and Carter’s Objection to Order on Motion to
Set Aside Default will be denied.
With regard to Carter’s request for recusal, “[a]s an initial matter, motions for
recusal under § 455(a)4 must be timely.” In re Steward, 828 F.3d 672, 681-82 (8th Cir.
2016) (quoting Tri-State Fin., LLC v. Lovald, 525 F.3d 649, 653 (8th Cir. 2008)).
Section 455(a) “requires a party to raise a claim at the earliest possible moment after
obtaining knowledge of facts demonstrating the basis for such a claim.” Id. This case
was assigned to the undersigned Judge on November 27, 2017. Carter’s Complaint
alleges that the undersigned “sent a letter to the American Bar Association and made a
District Court record concerning [his] disbarment,” yet no § 455(a) motion was made

4

Section 455(a) requires “[a]ny justice, judge, or magistrate judge of the United States [to]
disqualify himself in any proceeding in which his impartiality might reasonably by questioned.”

7

until March 27, 2018, six days after the Court set aside the Clerk’s entry of default
against the NLETC. See Steward, 828 F.3d at 682 (“The timeliness requirement under
§ 455 is intended to avoid the risk that the party might hold its application as an option
in the event the trial court rules against it[.]”).
Even if his motion were timely, the fact that the undersigned Judge adopted a
magistrate judge’s Findings and Recommendation that Carter be disbarred from
practice before this Court does not warrant recusal under § 455(a). Dist. of Neb. v.
Carter, Case No. 8:11AD20 (D. Neb. Jan. 24, 2012). The Nebraska Supreme Court
disbarred Carter from practicing law in the State of Nebraska, State ex rel. Counsel for
Discipline of Neb. Supreme Court v. Carter, 808 N.W.2d 342 (Neb. 2011), and
Magistrate Judge Zwart then recommended he also be disbarred from practice before
this Court. See United States v. Minard, 856 F.3d 555, 557 (8th Cir. 2017) (“[A] judge is
presumed to be impartial and the party seeking disqualification bears the substantial
burden of proving otherwise.”). The Court concludes that the undersigned’s impartiality
in this matter is not reasonably in question, and Carter’s request for recusal, contained
in the Motion, will also be denied.
II. Claims Asserted Under 18 U.S.C. §§ 241, 242, 245
Carter has no private right of action under 18 U.S.C. §§ 241, 242, or 245.
Although, “[a] criminal statute may provide an implied private right of action if Congress
so intended in enacting the criminal statute[,]” Wisdom v. First Midwest Bank, 167 F.3d
402, 407 (8th Cir. 1999), “it is well-settled that criminal statutes will rarely” provide a
private right of action, Frison v. Zebro, 339 F.3d 994, 999 (8th Cir. 2003). The Eighth
Circuit has specifically held that “there is no private right of action under § 241,” and
8

many other courts that have considered whether §§ 242 and 245 confer a private right
of action have concluded they do not. United States v. Wadena, 152 F.3d 831, 846 (8th
Cir. 1998); see also Storm-Eggink v. Gottfried, 409 F. App’x 426, 427 (2d Cir. 2011)
(finding no private right of action under §§ 241 and 242); Houck v. Ball, 511 F. App’x
704 (10th Cir. 2013) (finding no private right of action under § 242); Kelly v. Rockefeller,
69 F. App’x 414, 416 (10th Cir. 2003) (stating § 245 explicitly reserves the right of
prosecution to government officials”); Wolf v. Jefferson Cty, Case No. 4:15-CV-1174CEJ, 2016 WL 233247, at *2 (E.D. Mo. Jan. 20, 2016) (finding §§ 241, 242, and 245 do
not confer a private right of action). Carter’s claims under 18 U.S.C. §§ 241, 242, and
245 will be dismissed, with prejudice, under Fed. R. Civ. P. 12(b)(6)5 because those
sections do not confer a private right of action.
III. NLETC and Official-Capacity Claims
Carter’s § 1983 claims for damages and prospective injunctive relief against the
NLETC and Muldoon and Stolz, in their official capacities, will be dismissed under Fed.
R. Civ. P. 12(b)(1) and 12(b)(6). The NLETC as well as Muldoon and Stolz, in their
official capacities, are not “persons” subject to damages claims under § 1983 and Carter
lacks Article III standing to assert his claim for prospective relief. His claim for tortious
interference with a business expectancy under Nebraska law will also be dismissed
under Fed. R. Civ. P. 12(b)(1) because the Court lacks subject-matter jurisdiction over
that claim.
A. Claims Under 42 U.S.C. § 1983
5

Where a statute does not confer a private right of action any claims asserted thereunder are
appropriately dismissed under Fed. R. Civ. P. 12(b)(6). See Adams v. Eureka Fire Protection Dist., 352
F. App’x 137, 139 (8th Cir. 2009).

9

States, state agencies, and state officials acting in their official capacities are not
“persons” subject to claims for damages under § 1983. McLean v. Gordon, 548 F.3d
613, 618 (8th Cir. 2008) (citing Lapides v. Bd. of Regents, 535 U.S. 613, 617 (2002) and
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). However, “[s]tate officials
acting in their official capacities are § 1983 ‘persons’ when sued for prospective relief,
and the Eleventh Amendment does not bar such relief.” Murphy, 127 F.3d at 754 (citing
Treleven v. Univ. of Minn., 73 F.3d 816, 819 (8th Cir. 1996) (emphasis added)); see
also 281 Care Comm. v. Arneson, 638 F.3d 621, 632 (8th Cir. 2011) (explaining the
“general prohibition of suits in federal court by a citizen of a state against his state or an
officer or agency of that state” and the prospective-relief exception to this rule identified
by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908)).
Thus, Carter’s damages claims against the NLETC and Muldoon and Stolz, in
their official capacities, must be dismissed, with prejudice.

Carter’s official-capacity

claim for prospective injunctive relief will also be dismissed because the facts alleged in
the Complaint fail to demonstrate an actual and imminent threat of future injury that is
concrete and particularized. Thus, Carter lacks Article III standing to assert his claim for
prospective relief.
It is Carter’s burden, as the party invoking federal jurisdiction, to establish
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Standing requires that in order to seek injunctive relief, a plaintiff must
show that he is under threat of suffering “injury in fact” that is concrete and
particularized; the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged action of the
defendant; and it must be likely that a favorable judicial decision will
prevent or redress the injury.

10

Bernbeck v. Gale, 829 F.3d 643, 646 (8th Cir. 2016) (quoting Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009)). “At the pleading stage, general factual allegations of
injury resulting from the defendant’s conduct may suffice . . . .” Lujan, 504 U.S. at 561.
Yet, the allegations must show that the plaintiff “faces a threat of future or ongoing
harm,” and “[a]n injury resulting from past illegal conduct alone is not enough to support
a claim for injunctive relief. Park v. Forest Serv. of the U.S., 205 F.3d 1034, 1037 (8th
Cir. 2000). “[S]peculation that a future injury may occur is not sufficient to warrant
injunctive relief.” Guggenberger, 198 F. Supp. 3d at 991 (citing Los Angeles v. Lyons,
461 U.S. 95, 111 (1983)). The threat of injury must be “actual and imminent” as well as
“concrete and particularized.” Bernbeck, 829 F.3d at 646 (quoting Summers, 555 U.S.
at 493).
The Complaint fails to allege the existence of an actual and imminent future
injury that is concrete and particularized. Carter alleges multiple past instances where
his efforts to gain employment as a law enforcement officer were inhibited or prevented.
He also alleges that he was subjected to this treatment by Muldoon and Stolz because
of his race. However, “past exposure to illegal conduct,” on its own, does not confer
standing for injunctive relief, Park, 205 F.3d at 1037, and his remaining allegations of a
future injury are too speculative.

Carter broadly alleges that based on these prior

instances of discrimination, he believes he “will continue to be discriminated against” in
the future.

Yet, the Dundy County Sheriff’s Office decided to maintain Carter’s

employment even after Muldoon alerted that Office to Carter’s disbarment and
perceived credibility issues.

Thus, there is no imminent threat to Carter’s current

employment. Nor are there any allegations that suggest Muldoon and Stolz pose a
11

future, imminent threat of injury to Carter that is concrete and particularized. Therefore,
based on the facts alleged, Carter’s “theory of future injury is too speculative to satisfy
the well-established requirement that threatened injury must be ‘certainly impending.’”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013) (quoting Whitmore v. Arkansas,
495 U.S. 149, 158 (1990)).
Although Carter alleges that he will continuously suffer challenges to his
credibility from the defense bar and disrespect for his authority from criminal suspects
and witnesses, this alleged injury is a result of his prior disbarment, which is publicly
available information.6 UNITED STATES DISTRICT COURT DISTRICT

OF

NEBRASKA, PUBLIC

ORDERS IMPOSED AGAINST ATTORNEYS, https://www.ned.uscourts.gov/attorney/attorneydiscipline (last visited May 1, 2018). Therefore, this is not an injury that a judgment in
this action can redress.
B. Tortious Interference with a Business Expectancy
The Court lacks subject-matter jurisdiction over Carter’s claim against the NLETC
and Muldoon and Stolz, in their official capacities, for tortious interference with a
business expectancy under Nebraska law. “Sovereign immunity bars any suits against
states and their employees in their official capacities.” Montin v. Moore, 846 F.3d 289,
292 (8th Cir. 2017). Although “Nebraska has waived sovereign immunity for a limited
set of claims,” Id., the Nebraska State Tort Claims Act (STCA), Neb. Rev. Stat. § 81-8,
209 et seq., grants exclusive jurisdiction over those claims to “the district court of the
county in which the act or omission complained of occurred . . . .” Neb. Rev. Stat. § 818, 214. Thus, even if Carter’s tortious-interference claim were not barred by sovereign
6

The Court will not address Carter’s allegations that challenge the propriety of his disbarment.

12

immunity, the Court lacks subject-matter jurisdiction over it. Montin, 846 F.3d at 293
(citing Neb. Rev. Stat. § 81-8, 214) (requiring all claims under the STCA be brought in a
Nebraska state district court).
Accordingly, Carter’s § 1983 claims against the NLETC and Muldoon and Stolz,
in their official capacities, for damages will be dismissed, with prejudice, and his claims
for prospective relief and for tortious interference with a business expectancy will be
dismissed, without prejudice.
IV. Individual-Capacity Claims
Carter may proceed against Muldoon and Stolz, in their individual capacities, on
the following claims: (1) race discrimination under 42 U.S.C. § 1981, (2) equal
protection under the Fourteenth Amendment, and (3) substantive due process under the
Fourteenth Amendment. His individual-capacity claim for tortious interference with a
business expectancy under Nebraska law will be dismissed under Fed. R. Civ. P.
12(b)(1) because the Court lacks subject-matter jurisdiction over it.
A. Race Discrimination—42 U.S.C. § 1981
“To state a claim under § 1981, a plaintiff must plead: ‘(1) that the plaintiff is a
member of a protected class; (2) that the defendant intended to discriminate on the
basis of race; and (3) that the discrimination on the basis of race interfered with a
protected activity as defined in § 1981.’” Elmore v. Harbor Freight Tools USA, Inc., 844
F.3d 764, 767 (8th Cir. 2016) (quoting Bediako v. Stein Mart, Inc., 354 F.3d 835, 839
(8th Cir. 2004)). Muldoon and Stolz argue Carter failed to plead the third element.
Carter alleges that Muldoon and Stolz intentionally discriminated against him by
repeatedly interfering and attempting to interfere with his employment opportunities. He
13

asserts that, in one instance, an offer of employment was rescinded after such
interference. Employment, whether pursuant to an express written contract or not, is
protected under § 1981’s contract clause. Singletary v. Missouri Dep’t of Corrections,
423 F.3d 886, 890 n.3 (8th Cir. 2005) (citing Skinner v. Maritz, Inc., 253 F.3d 337, 339
(8th Cir. 2001) (“[A]n at-will employee, employed without a written contract in an
agreement terminable at will by either party, has a ‘contract’ within the meaning of civil
rights statute guaranteeing equal rights to make and enforce contracts.”); see also
LaRocca v. Precision Motorcars, Inc., 45 F. Supp. 2d 762, 776 (D. Neb. 1999) (“[A]n atwill employment relationship, though terminable at will, is contractual.”). Thus, Carter’s
§ 1981 claim will not be dismissed for failure to plead the alleged race discrimination
interfered with a protected activity.
B. Qualified Immunity
“Qualified immunity shields government officials from liability in their individual
capacity so long as the official has not violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.” Parrish v. Ball,
594 F.3d 993, 1001 (8th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “[D]efendants seeking dismissal under Rule 12(b)(6) based on an assertion of
qualified immunity ‘must show that they are entitled to qualified immunity on the face of
the complaint.’”

Carter v. Huterson, 831 F.3d 1104, 1107 (8th Cir. 2016) (quoting

Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005)). “To determine whether a
public official is entitled to immunity, courts conduct a two-pronged analysis: ‘whether
the plaintiff has stated a plausible claim for violation of a constitutional or statutory right
and whether the right was clearly established at the time of the alleged infraction.’”
14

Kulkay v. Roy, 847 F.3d 637, 642 (8th Cir. 2017) (quoting Carter, 831 F.3d at 1107).
The Court may decide “which of the two prongs of the qualified immunity analysis
should be addressed first,” Pearson v. Callahan, 555 U.S. 223, 236 (2009), and “an
official is entitled to qualified immunity unless both prongs are satisfied,” Kulkay, 847
F.3d at 642.
“To be clearly established, preexisting law must make the unlawfulness of the
officials’ conduct apparent so that they have ‘fair and clear warning’ they are violating
the constitution; qualified immunity therefore protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Estate of Walker v. Wallace, 881 F.3d 1056,
1060 (8th Cir. 2018) (quoting White v. Pauly, __U.S.__, 137 S. Ct. 548, 551 (2017) (per
curiam)). “[P]laintiffs have the burden of showing that the law was clearly established.”
Wallace, 881 F.3d at 1060 (citing Hess v. Ables, 714 F.3d 1048, 1051 (8th Cir. 2013)).
1. Equal Protection Claim
Muldoon and Stolz first argue that Carter failed to state a plausible claim for
violation of the Equal Protection Clause of the Fourteenth Amendment because he did
not allege he was treated differently from others similarly situated to him.

“As a

threshold matter, in order ‘to state an equal protection claim, [the plaintiff] must have
established that he was treated differently from others similarly situated to him.’” Carter
v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004) (quoting Johnson v. City of Minneapolis,
152 F.3d 859, 862 (8th Cir. 1998)). They “must be similar ‘in all relevant respects.’”
Carter, 392 F.3d at 969 (quoting Bills v. Dahmi, 32 F.3d 333, 335 (8th Cir. 1994)).
In his Complaint, Carter identified one Caucasian law enforcement officer who
“had been declared by a Federal District Judge in Nebraska not to be fit or credible to
15

serve in a law enforcement capacity” for falsifying evidence, but was not subjected to
the same treatment as Carter by Muldoon, Stolz, and the NLETC. Comp. ¶ 25, ECF
No. 1, Page ID 7. Muldoon and Stolz contend that Carter stated no facts regarding
“other officers who were previously disbarred who were treated differently[,]” and so he
has failed, as a matter of law, to allege he was treated differently from others similarly
situated to him in all relevant respects. Def.s’ Br., ECF No. 27, Page ID 92. It is a
defendant’s burden to demonstrate that he is entitled to qualified immunity because the
plaintiff has not stated a plausible constitutional claim, and Muldoon and Stolz have not
met that burden. Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014).
Second, they argue that Carter’s allegations fail to show a violation of a clearly
established equal protection right, because no reasonable official would believe that
alerting Carter’s potential employers to his disbarment violated his constitutional rights.
However, Carter does not allege that this conduct, alone, violated a clearly established
right.

He alleges that Muldoon and Stolz intentionally alerted Carter’s potential

employers of his credibility issues because he is African American, and that Muldoon
and Stolz intentionally did not alert potential employers of similar credibility issues
involving a Caucasian officer. See Robbins v. Becker, 794 F.3d 988, 995 (8th Cir.
2015) (A denial of equal protection includes “an element of intentional or purposeful
discrimination.”).

“[I]it is a clearly established principle of constitutional law that a

government official may not discriminate on the basis of race.” Thomas v. Talley, 251
F.3d 743, 745 (8th Cir. 2001) (citing Goodwin v. Circuit Court of St. Louis Cty., 729 F.2d
541, 546 (8th Cir. 1984) (“The constitutional right to be free from [race] discrimination is

16

so well established and so essential to the preservation of our constitutional order that
all public officials must be charged with knowledge of it.”).
Muldoon and Stolz have not shown that they are entitled to qualified immunity on
Carter’s § 1983 equal protection claim at this stage of the litigation. Therefore, this
claim will not be dismissed.
2. Due Process Claim
Muldoon and Stolz argue that Carter failed to state a plausible procedural due
process claim, but they do not address whether Carter stated a plausible substantive
due process claim.

Carter’s Complaint does not allege he was denied adequate

procedural due process, but that Muldoon and Stolz attempted to prevent him from
gaining, or maintaining, employment as a law enforcement officer because he is African
American. See Creason v. City of Washington, 435 F.3d 820, 824 (8th Cir. 2006)
(stating the Due Process Clause of the Fourteenth Amendment “has two components:
procedural due process and substantive due process.”) (citing Cty. of Sacramento v.
Lewis, 523 U.S. 833, 840 (1998)); see also Efinchuk v. Astrue, 480 F.3d 846, 849 (8th
Cir. 2007) (“A procedural due process claim focuses not on the merits of a deprivation,
but on whether the State circumscribed the deprivation with constitutionally adequate
procedures.”). Although Carter has not alleged a plausible procedural due process
claim, Muldoon and Stolz have not demonstrated that qualified immunity shields them
from Carter’s § 1983 substantive due process claim, and it will not be dismissed at this
juncture.
C. Tortious Interference with a Business Expectancy

17

Under Nebraska law, state government officials and employees are personally
and individually subject to tort claims “only when the officer or employee was not acting
within the scope of his or her office or employment.” Davis v. State, 902 N.W.2d 165,
181 (Neb. 2017). Although Carter argues in his brief that Muldoon and Stolz acted
outside the scope of their employment, his Complaint alleges “the defendants knew, or
should have known, that their actions were within their scope of authority . . . .” Comp.
¶ 44, Page ID 12. He cited no authority in support of his assertion that they acted
beyond the scope of their employment, nor are there any facts alleged in the Complaint
that support this conclusion.

Therefore, Carter’s tortious interference claim against

Muldoon and Stolz, in their individual capacities, will be dismissed, with prejudice. See
Kruger v. Nebraska, 90 F. Supp. 3d 874, 881-82 (D. Neb. 2015), aff’d 820 F.3d 295 (8th
Cir. 2016) (explaining that if the defendants acted within the scope of their employment,
the plaintiff must comply with the State Tort Claims Act) (citing Bohl v. Buffalo Cty., 557
N.W.2d 668, 674 (1997)).
CONCLUSION
Carter may proceed against Muldoon and Stolz, in their individual capacities, on
the following claims: (1) race discrimination under 42 U.S.C. § 1981, (2) equal
protection under the Fourteenth Amendment, and (3) substantive due process under the
Fourteenth Amendment.
Accordingly,
IT IS ORDERED:
1.

The Objection, ECF No. 50, filed by Plaintiff John Carter is denied;

18

2.

The Motion to Dismiss, ECF No. 26, filed by Defendants William Muldoon
and Dave Stolz is granted, in part, as follows:
The claim for tortious interference with a business relationship or
expectancy against Defendants William Muldoon and Dave Stolz, in
their individual capacities, is dismissed, with prejudice;
The Motion is otherwise denied;

3.

The Motion to Dismiss, ECF No. 51, filed by Defendant Nebraska Law
Enforcement Training Center is granted;

4.

Defendant Nebraska Law Enforcement Training Center is dismissed from
this action;

5.

Plaintiff John Carter’s claims for damages under 42 U.S.C. § 1983 against
Defendants Nebraska Law Enforcement Training Center and William
Muldoon and Dave Stolz, in their official capacities, are dismissed, with
prejudice;

6.

Plaintiff John Carter’s claim under 42 U.S.C. § 1983 for prospective
injunctive relief and his claim under Nebraska law for tortious interference
with a business expectancy against Defendants Nebraska Law
Enforcement Training Center and William Muldoon and Dave Stolz, in
their official capacities, are dismissed, without prejudice;

7.

Defendants William Muldoon and Dave Stolz, in their individual capacities,
will respond to the remaining claims on or before May 18, 2018.

Dated this 1st day of May, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

19