Madsen v. City of Lincoln
| Decision Date | 08 December 2021 |
| Docket Number | 4:21CV3075 |
| Citation | 574 F.Supp.3d 683 |
| Parties | Benjamin MADSEN, and Madsen Bowling and Billiard Center, Co., Plaintiffs, v. CITY OF LINCOLN, a Municipal Corporation; Leirion Gaylor Baird, Mayor of the City of Lincoln in her official and individual capacities; Patricia D. Lopez, acting Health Director, in her official and individual capacities; Jeffrey Bliemeister, Lincoln Police Chief in his official capacity; and Lancaster County, a Political Subdivision, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Carey D. Collingham, Christopher M. Ferdico, Berry Law Firm, Jacob C. Garbison, I, John L. Spray, Mattson, Ricketts Law Firm, Lincoln, NE, for Plaintiff Benjamin Madsen.
Christopher M. Ferdico, Berry Law Firm, Jacob C. Garbison, I, John L. Spray, Mattson, Ricketts Law Firm, Lincoln, NE, for Plaintiff Madsen Bowling and Billiard Center.
Andre R. Barry, Cline, Williams Law Firm, Danielle L. Rowley, City of Lincoln, Richard W. Tast, Jr., Yohance Christie, City Attorney's Office, Lincoln, NE, for Defendants City of Lincoln, Leirion Gaylor Baird, Patricia D. Lopez, Jeffrey Bliemeister.
Christopher M. Schmidt, Emily R. Motto, Baylor, Evnen Law Firm, Lincoln, NE, for Defendant Lancaster County.
This matter is before the Court on defendants City of Lincoln (the "City"), Leirion Gaylor Baird ("Baird"), Patricia D. Lopez ("Lopez"), and Jeffrey Bliemeister's ("Bliemeister," and collectively, the "City defendants") Motion for Partial Judgment on the Pleadings (Filing No. 36). The City defendants seek to dismiss "Count IV" of plaintiffs Benjamin Madsen and Madsen Bowling and Billiard Center Co.’s (together, "Madsen Bowling") Third Amended Complaint (Filing No. 1-1). Count IV, brought under 42 U.S.C. § 1983, alleges the City defendants violated numerous constitutional rights of Madsen Bowling.1 For the alleged violations, Madsen Bowling seeks damages and equitable relief. Almost all the alleged violations against the City defendants stem from the promulgation and enforcement of various DHMs issued during the early stages of the COVID-19 pandemic. For the reasons stated below, the City defendants’ motion is granted.
This case concerns the COVID-19 pandemic-related DHMs that placed restrictions on business operations in Lincoln, Nebraska, and Lancaster County, Nebraska. On March 6, 2020, the first presumptive positive case of COVID-19 was reported in Nebraska, and on March 13, 2020, former U.S. President Donald Trump declared the COVID-19 outbreak a national emergency. Pete Ricketts, Governor of Nebraska, declared a State of Emergency on the same day. By March 25, 2020, the Nebraska Department of Health and Human Services ("DHHS") issued the first DHM for Lancaster County, which in part, limited gatherings, restricted the sale of food and alcohol at restaurants and bars, and reduced the capacity of daycare and childcare facilities. Lopez, the acting health director for the City, issued a similar DHM on the same day.
DHHS issued another DHM on April 30, 2020, and Lopez followed suit by issuing a similar—but more restrictive—DHM on May 4, 2020. That DHM issued by Lopez was more restrictive than the DHM issued by DHHS in that it (1) defined "gatherings" more narrowly, (2) forbade the sale of alcohol for on-site consumption, (3) prohibited door-to-door sales for certain businesses, and (4) imposed greater restrictions on child-care centers. Lopez and DHHS continued issuing more DHMs throughout 2020 to adapt to the ever-changing circumstances surrounding the COVID-19 pandemic. Many of the DHMs issued by Lopez for the City were more restrictive than those issued by DHHS for Lancaster County.
On July 20, 2020, Lopez issued DHM 2020-07, which was the first DHM actively enforced by the City. Under that DHM, the City issued citations and took actions to shut down businesses that were not complying with it. The penalty for violating a DHM was punishable by a fine up to $500, six months in jail, or both a fine and jail time. To enforce these DHMs, Baird encouraged members of the public to report suspected violations. The Lincoln Police Department was responsible for issuing citations for DHM violations, and they continued issuing citations through the end of 2020. Some of the citations issued did not identify which DHM provision was allegedly violated.
Despite efforts made by affected business owners to have their voices heard, Lopez and other staff denied individualized hearings but did offer teleconference hearings for "select business owners" to provide input and feedback on the DHMs. Business owners, like Madsen Bowling, did not feel their input or feedback was well-received or implemented, and many businesses had a difficult time operating under the DHM restrictions. While certain DHMs were in effect, restaurants and bars could not serve alcoholic beverages "without a meal," had to close by certain times, had to restrict the number of patrons visiting their establishments, and were required to order staff and patrons to wear a face mask. Some of these restrictions led businesses to close temporarily or shut down completely.
The Lincoln City Council (the "City council") took up another legislative measure during the relevant time period. On August 31, 2020, the City council amended Lincoln Municipal Code ("LMC") § 2.04.010 to prohibit citizens from bringing in and posting signs in the city-council chambers while in session.
As a general rule, a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is addressed under the same standard as a Rule 12(b)(6) motion to dismiss. Ginsburg v. InBev NV/SA , 623 F.3d 1229, 1233 n.3 (8th Cir. 2010). In deciding such a motion, the Court accepts "as true all factual allegations in the complaint and draw[s] all reasonable inferences in favor of the nonmoving party." McDonough v. Anoka County , 799 F.3d 931, 945 (8th Cir. 2015). While a plaintiff does not need to provide " ‘detailed factual allegations’ " they must give "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Accordingly, the Court is "not bound to accept as true ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements’ or legal conclusions couched as factual allegations." McDonough , 799 F.3d at 945 (alteration in original) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).
In deciding a Rule 12(b)(6) or 12(c) motion, "[t]he [C]ourt generally must ignore materials outside the pleadings, but it may consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings." Ashford v. Douglas County , 880 F.3d 990, 992 (8th Cir. 2018) (quoting Smithrud v. City of St. Paul , 746 F.3d 391, 395 (8th Cir. 2014) ).
Prior to addressing Madsen Bowling's constitutional claims, the parties dispute whether the standard set forth in Jacobson v. Massachusetts , 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905), provides the proper lens through which the Court should analyze Madsen Bowling's alleged constitutional claims. In Jacobson , the Supreme Court upheld a state law mandating vaccination against smallpox. Many courts, including the Eighth Circuit, endorsed the Jacobson approach for analyzing constitutional violations "in the context of a public-health crisis." In re Rutledge , 956 F.3d 1018, 1027 (8th Cir. 2020). In Rutledge , the Eighth Circuit concluded that Jacobson established a "two-part framework" for analyzing constitutional claims during a public-health crisis, explaining that "state action is susceptible to constitutional challenge only if it ... [1] ‘has no real or substantial relation to those objects, or [2] is beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ " Id. (quoting Jacobson , 197 U.S. at 31, 25 S.Ct. 358 ). The Eighth Circuit found the district court's failure to apply the Jacobson framework was an abuse of discretion. Id. at 1027.
But since the Eighth Circuit's decision in Rutledge , the Supreme Court has cast serious doubt on Jacobson's applicability. See Roman Catholic Diocese of Brooklyn v. Cuomo , 592 U.S. ––––, ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) (per curiam). In Roman Catholic Diocese of Brooklyn , the Supreme Court did not explicitly overrule Jacobson , but it applied strict scrutiny rather than the Jacobson framework when evaluating the plaintiffs’ claims that the COVID-19 restrictions for attendance at religious services violated their rights under the free exercise clause of the First Amendment. Id. ; see also id. at 70 () (Gorsuch, J., concurring). The Eighth Circuit has not yet weighed in on Jacobson's applicability in the wake of Roman Catholic Diocese of Brooklyn . But under either standard, Madsen Bowling's claims fail.
Madsen Bowling first brings suit against Baird in her official capacity as the mayor of Lincoln, Lopez in her official capacity as the acting health director in Lincoln, and Bliemeister2 in his official capacity as Lincoln police chief. The City defendants argue these claims should be dismissed because "the real party in interest in an official-capacity suit is the governmental entity and not the named official." Hafer v. Melo , 502 U.S. 21, 25, ...
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