United States District Court, D. Nebraska
[Copyrighted Material Omitted]
Douglas Sundquist, Plaintiff, Pro se, Fremont, NE.
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.
MEMORANDUM AND ORDER
Gerrard, United States District Judge.
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.
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).
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
minimum of 1 Alcoholics Anonymous meeting per week."
See Licensure Records, Letter of December 4, 2012,
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.
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.
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. 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.
- Fed. R. Civ. P.
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).
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 12(b)(6) motion.
to State A Claim - Fed. R. Civ. P.
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 ...