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Sundquist v. State of Nebraska

United States District Court, D. Nebraska

August 10, 2015

STATE OF NEBRASKA, et al., Defendants

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[Copyrighted Material Omitted]

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          Marvin Douglas Sundquist, Plaintiff, Pro se, Fremont, NE.

         For State of Nebraska, Nebraska Attorney General's Office, Ed Vierk, Assistant Nebraska Attorney General, Jon Bruning, Nebraska Attorney General, Nebraska Department of Health and Human Services, Ruth Schuldt, Probation Compliance Monitor, Joseph Acierno, Director, Division of Public Health, Chief Medical Officer, Defendants: Stephanie A. Caldwell, ATTORNEY GENERAL'S OFFICE - NEBRASKA, Lincoln, NE.

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         John M. Gerrard, United States 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.


         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

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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 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.


         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

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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 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 ...

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