Harrington v. City of Elizabeth
| Decision Date | 07 June 2021 |
| Docket Number | 8:20-CV-412 |
| Court | U.S. District Court — District of Nebraska |
| Parties | SHANE HARRINGTON, Individually and on Behalf of Others Similarly Situated; H & S CLUB OMAHA, INC., Individually and on Behalf of Others Similarly Situated; and CLUB 120, INC., Individually and on Behalf of Others Similarly Situated; Plaintiffs, v. CITY OF OMAHA, DOUGLAS COUNTY, NEBRASKA, AIMEE MELTON, In Their Individual and Official Capacities; CHRIS JERRAM, In Their Individual and Official Capacities; PETE FESTERSEN, In Their Individual and Official Capacities; BEN GRAY, In Their Individual and Official Capacities; VINNY PALERMO, In Their Individual and Official Capacities; RICH PAHLS, In Their Individual and Official Capacities; BRINKER HARDING, In Their Individual and Official Capacities; JEAN STOTHERT, In Their Individual and Official Capacities; TODD SCHMADERER, In Their Individual and Official Capacities; STEVE MARTINEZ, In Their Individual and Official Capacities; TIMOTHY DUNNING, In Their Individual and Official Capacities; JASON MENNING, In Their Individual and Official Capacities; SHAWN HARPER, In Their Individual and Official Capacities; SCOTT BURESH, In Their Individual and Official Capacities; PAUL LAWSON, In Their Individual and Official Capacities; MIKE SUNDERMEIER, In Their Individual and Official Capacities; CHRIS PERKINS, In Their Individual and Official Capacities; VAUGHN COTTON, In Their Individual and Official Capacities; JAMES HALEY, In Their Individual and Official Capacities; RICHARD HAWTHORNE, In Their Individual and Official Capacities; DUANE EIVINS, In Their Individual and Official Capacities; KURT URKOSKI, In Their Individual and Official Capacities; ELIZABETH BUTLER, In Their Individual and Official Capacities; ADI POUR, In Their Individual and Official Capacities; and JOHN HENIGE, In Their Individual and Official Capacities; Defendants. |
This matter is before the Court on the Motion to Dismiss for Failure to State a Claim, Filing 69, of defendants Douglas County, Nebraska, Timothy Dunning, and Adi Pour. Also before the Court is the Motion to Dismiss for Failure to State a Claim, Filing 73, of defendants Scott Buresh, Elizabeth Butler, City of Omaha, Vaughn Cotton, Duane Eivins, Pete Festerson, Ben Gray, James Haley, Brinker Harding, Shawn Harper, Richard Hawthorne, Chris Jerram, Paul Lawson, Steve Martinez, Aimee Melton, Jason Menning, Rich Pahls, Vinny Palermo, Chris Perkins, Todd Schmaderer, Jean Stothert, Mike Sundermeier, and Kurt Urkoski. Defendants filed an Unopposed Motion to Add Defendant John Henige to City Defendant's Motion to Dismiss. Filing 86.
Under 42 U.S.C. § 1983, Plaintiffs assert the following causes of action: Fourth Amendment Illegal Searches and Seizures; First Amendment Violations of Free Speech, Expression, and Assembly; Fourteenth Amendment Equal Protection Violations; Title VI Civil Rights Act Violations; Due Process Violations; and Establishment Clause Violations. See Filing 68. Additionally, Plaintiffs assert a 42 U.S.C. § 1985 conspiracy claim against defendants, as well as state law claims of promissory estoppel and breach of contract. The defendants' unopposed motion to add defendant Henige to the defendants' motion to dismiss is granted.
In this lawsuit, Plaintiffs have included every conceivable claim and defendant. Plaintiffs sue the Mayor, the entire Omaha City Council, seemingly any police officer they haveencountered, the Director of the Douglas County Health Department, even the Omaha City Clerk, for claims which can generously be described as a laundry-list of possible claims available under the United States Constitution. This Court has previously referred to this strategy—used by this same plaintiff and affiliated entities—as the "kitchen sink" approach, where the Plaintiffs included everything in their lawsuit but the kitchen sink. Harrington v. Strong, 363 F.Supp.3d 984, n. 5.
In this case, this Court believes Plaintiffs have done one better. The kitchen sink is included. Defendants' motions to dismiss are granted in their entirety.
Plaintiff Shane Harrington ("Harrington") is an individual residing in Buffalo County, Nebraska, and a principal officer of H&S Club Omaha, Inc. and Club 120, Inc. Filing 68 at 19. Plaintiff H & S Club Omaha, Inc. ("Club Omaha") is a Nebraska corporation operating in Omaha, Nebraska. Filing 68 at 19. Plaintiff Club 120, Inc. ("Club 120") is a Nebraska corporation that owns and operates INFINITY in Omaha. Filing 68 at 19.1
Defendant City of Omaha is the municipal entity that operates the City of Omaha, Nebraska, including the Omaha Police Department ("OPD"), Omaha City Council ("City Council"), Omaha Fire Department, and Omaha Planning Department. Filing 68 at 19. Defendants Aimee Melton, Pete Festersen, Ben Gray, Vinny Palermo, Rich Pahls, and Brinker Harding are members of the City Council, and Chris Jerram is the City Council President. Filing 68 at 20. Defendant Jean Stothert is the mayor of the City of Omaha. Filing 68 at 20. The following Defendants are members of the OPD: Todd Schmaderer (Omaha Chief of Police), Steve Martinez (sergeant), Jason Menning (sergeant), John Henige (officer), Shawn Harper (officer), Scott Buresh (officer), Paul Lawson (officer), Mike Sundermeier (officer), Chris Perkins (officer), Vaughn Scott(officer), and James Haley (officer). Filing 68 at 20. Defendant Richard Hawthorne is an employee of the Omaha City Planning Department. Filing 68 at 20. Defendants Duane Eivins (captain), and Kurt Urkoski (inspector) are members of the Omaha Fire Department. Filing 68 at 20-21. Defendant Elizabeth Butler is the Omaha City Clerk.2 Filing 68 at 21.
Defendant Douglas County, Nebraska is the municipal entity that operates Douglas County, Nebraska. Filing 68 at 19. Defendant Timothy Dunning was the Douglas County, Nebraska Sheriff at the time of the filing of this lawsuit and at the time of the requisite facts pled in the lawsuit. Filing 68 at 20. Defendant Dr. Adi Pour is the Douglas County Health Director. Filing 68 at 21.3
On March 18, 2020, Pour issued a DHM ("March 18 DHM") in her position as Director of the Douglas County Health Department.4 Filing 70-2. The March 18 DHM contained several orders relating to the COVID-19 pandemic: "All public gatherings within the jurisdiction of the Douglas County Health Department with an expected presence of more than ten individuals taking place between March 18 and April 30, 2020 are hereby prohibited;" "for gatherings below this size [10], if a minimum social distance of six feet between attendees cannot be maintained . . . the gathering is prohibited." Filing 70-2 at 1-2. The DHM did not apply to "courts of law, medical providers, public utilities, critical county and city operations, etc." Filing 70-2 at 1-2. The March 18 DHM was "issued as a result of the worldwide pandemic of COVID-19 disease," and was"intended to reduce the likelihood of exposure to COVID-19, thereby slowing the spread of COVID-19 to communities worldwide." Filing 70-2 at 2. The March 18 DHM requested the Douglas County "Sheriff and all Chiefs of Police in the County ensure compliance with and enforcement of" the March 18 DHM. Filing 70-2 at 2. On this same date, Plaintiffs contacted the Douglas County Board of Health via telephone and were informed Club Omaha could operate with a ten-person capacity and personal protective equipment ("PPE"). Filing 68 at 2-3.5
On March 20, 2020, Pour issued an amended DHM ("March 20 DHM")6 to bring the Douglas County DHM in line with a DHM issued by the State of Nebraska on March 19, 2020. Filing 70-3 at 2. The March 20 DHM expanded upon the March 18 DHM. The March 20 DHM kept the prohibition of public gatherings of more than ten but clarified the restrictions to mean "ten (10) patrons, customers or other invitees, excluding staff." Filing 70-3 at 2. The March 20 DHM "include[d], but [was] not limited to, the following spaces[:]"
[S]chools, gymnasiums, salons, fitness centers, auditoriums, stadiums, arenas, large event conference rooms, meeting halls, theaters, libraries, or any other confined indoor or outdoor spaces. This Order also includes, but is not limited to, the following events, weddings, funerals, parades, fairs, festivals, concerts and other indoor and outdoor events.
In addition, "[l]iquor, beer and wine sales [were] restricted to carry-out sales and delivery only." Filing 70-3 at 2. "No onsite consumption [was] permitted," including "bars, taverns, andprivate clubs, regardless of name or characterization." Filing 70-3 at 2. The March 20 DHM provided for a hearing process regarding the "factual bases" and "reasonableness of the ordered measures" of the DHM. Filing 70-3 at 2-4. The DHM took effect when it was "disseminated to the mass media." Filing 70-3 at 3.
On March 25, 2020, the Nebraska Department of Health and Human Services ("DHHS") issued a DHM for Cass, Douglas, and Sarpy counties, effective immediately and continuing through April 30, 2020 ("the March 25 DHHS DHM"). Filing 70-4 at 2. The terms were similar to the March 20 DHM issued by Douglas County. Gatherings, "defined as any event or convening that brings together more than ten (10) patrons, customers or invitees, excluding staff, in a single room or single space at the same time," were prohibited. Filing 70-4 at 2. The same liquor, beer, and wine restrictions applied, with no onsite consumption permitted at "bars, taverns, and private clubs, regardless of name or characterization." Filing 70-4 at 3. The March 25 DHHS DHM also provided for a hearing process "to determine if the factual bases for the [DHM] exist and the reasonableness of the ordered measures." Filing 70-4 at 5.
On April 30, 2020, the Nebraska DHHS issued a DHM for Douglas County, effective May 4, 2020 through May 31, 2020 (the "May 4 DHHS DHM"). Filing 70-5 at 2. The May 4 DHHS DHM provided that ...
To continue reading
Request your trial