Carter ex rel. Situated v. Muldoon, 8:17CV319

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtLaurie Smith Camp Chief United States District Judge
PartiesJOHN M. CARTER, and on behalf of other Similarly situated; Plaintiff, v. 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.
Docket Number8:17CV319
Decision Date01 May 2018

JOHN M. CARTER, and on behalf of other Similarly situated; Plaintiff,
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;
and DOES 1-25 INCLUSIVE, Defendants.



May 1, 2018


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.


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

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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 he was unfit to be a law enforcement officer. Muldoon subsequently sent "all the 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.

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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"

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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).


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

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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

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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).

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I. Carter's Motion

In his "Objection to Order on Motion to Set Aside...

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