WAYS v. CITY OF LINCOLN

Full title: JOHN WAYS, Plaintiff, vs. CITY OF LINCOLN, et al., Defendants

Court: United States District Court, D. Nebraska

Date published: Jul 29, 2002

4:00CV3216 (D. Neb. Jul. 29, 2002)

Opinion

4:00CV3216

July 29, 2002

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

WARREN K. URBON, United States Senior District Judge

Now before me is the Defendants' Motion for Summary Judgment, filing 109. The plaintiff, John Ways, filed an amended complaint alleging that several violations of his constitutional and statutory rights accompanied the passage and enforcement of a number of city ordinances. (See Am. Compl., filing 37.) The defendants have moved for summary judgment on all claims set forth in the amended complaint. I find that the defendants' motion must be granted.

I. BACKGROUND¹

1 Pursuant to Local Rule 56.1, the defendants have set forth in their brief a statement of material facts. (See Br. in Supp. of Defs.' Mot. for Summ J. (hereinafter "Defs.' Br.") at 3-10.) The defendants note therein that they wish to incorporate the index of evidence that they previously submitted in support of their Motion for Summary Judgment Based Upon Qualified Immunity, filing 72. (See Defs.' Br. at 3. See also filing 73.) I have noticed that the statement of material facts set forth in the defendants' brief is nearly identical to the statement of facts set forth in the defendant's brief submitted in support of their Motion for Summary Judgment Based Upon Qualified Immunity. (Compare Defs.' Br. at 3-10 with Defs.' Br. In Supp. of Mot. for Summ. J. Based Upon Qualified Immunity at 2-10.) For that reason, the following discussion of the relevant background will resemble the background set forth in the Memorandum and Order on Defendants' Motion for Summary Judgment Based Upon Qualified Immunity, filing 104, at 1-3.

The plaintiff is the owner and operator of Mataya's "Babydolls" Gentlemen's Theatre Club (Mataya's), an "adult entertainment" business located in Lincoln, Nebraska. (Br. in Supp. of Defs.' Mot. for Summ J. (hereinafter "Defs.' Br."), Statement of Facts ¶¶ 18-20; Am. Compl., filing 37, ¶¶ 2, 23-24.) At Mataya's, patrons are entertained by a variety of performances by female dancers who may be clothed, topless, or nude. (Am. Compl., filing 37, ¶¶ 25-28.) "Table dances" involve performances by clothed dancers whose "breasts, hips or buttocks" may make contact with patrons during the dance. (Defs.' Br., Statement of Facts ¶ 22; Am. Compl., filing 37, ¶ 26.) During a "couch dance," a patron "sits on the couch and a dancer without clothing performs a dance around and on the patron." (Defs.' Br., Statement of Facts ¶ 23.) Finally, the "stage dance" includes a number of distinct maneuvers performed by two or more topless dancers on a stage. (Am. Compl. ¶ 28.) A stage dance may include a "whipped cream dance," wherein dancers lick whipped cream from one another that is sometimes applied by a patron. (Am. Compl., filing 37, ¶ 28; Defs' Br., Statement of Facts ¶ 24.) For a fee, a dancer may squirt whipped cream onto a patron's stomach before licking it off. (Id.) Periodically during a stage dance, dancers may "smash their breasts together" in a maneuver to retrieve money held by a patron in his or her mouth. (Defs' Br., Statement of Facts ¶ 25.) According to the defendants, contact between the dancers' breasts and patrons' faces occurs during this movement. (Id.) Also during a stage dance, a maneuver may be performed that places the crotch of a dancer in close proximity with a patron's face. (Defs' Br., Statement of Facts ¶ 26.) Again, contact between the dancer and patron may occur during this maneuver. (Id.) Although "simulated" oral sex between performers and patrons is evidently permissible in the club, the plaintiff states that actual contact between one person's mouth and another's unclothed genitals is "unacceptable." (Index of Evidence Offered in Supp. of Mot. for Summ. J. Based on Qualified Immunity [hereinafter Defs.' Index], filing 73, Ex. 1 at 50:3-20; Index of Evidence Offered in Opp'n to Mot. for Summ. J. [hereinafter Pl.'s Index], filing 138, Ex.1, Ways Aff. ¶ 18.)

On or about July 20, 2000,² Officers Joseph Kaufman and Justin Darling of the Lincoln Police Department entered Mataya's in plain clothes in order to determine whether violations of the Lincoln Municipal Code were occurring at the club. (Defendants' Br., Statement of Facts ¶ 33; Defs.' Index, filing 73, Ex. 3, Kaufman Aff. ¶ 4; Defs.' Index, filing 73, Ex. 4, Darling Aff. ¶ 4.) During their visit, the officers observed what they believed to be several violations of Lincoln Municipal Code section 9.16.240 [hereinafter Ordinance No. 17657]. (Id.) Generally, Ordinance No. 17657 prohibits "sexual contact" between employees or performers and other employees, performers, or patrons in any business or commercial establishment, where "sexual contact" is defined as "the intentional touching between a patron, a performer, or employee involving contact by or with a patron's, performer's, or employee's sexual organ, buttock(s), or breast(s), whether covered or not, or kissing, when such contact can reasonably be construed as being for the purpose of sexual arousal or sexual gratification of either party or any observer." (Am. Compl., filing 37, Ex. A.) While at Mataya's, Officer Kaufman observed security cameras located "throughout the building." (Defs.' Index, filing 73, Ex. 3, Kaufman Aff. Ex. B at 4.)

2 The Defendants' Statement of Facts at paragraph 33. The evidence i, 2000" inndicates that Kaufman and Darling actually visited Mataya's on July 20, 2000. (See Defs.' Index, filing 73, Ex. 3, Kaufman Aff. ¶ 4; Defs.' Index, filing 73, Ex. 4, Darling Aff. ¶ 4.)

On or about August 11, 2000, Officers Elton Hill and Marlan Hohnstein entered Mataya's in plain clothes in order to determine if the prohibited conduct observed previously by Officers Kaufman and Darling was still occurring at the club. (Defs.' Br., Statement of Facts ¶ 34.) Upon observing that such conduct was occurring, Officer Hohnstein used a cellular phone to report his observations to officers waiting near the premises. (Id. ¶ 35.) Those officers then came to Mataya's to arrest violators of Ordinance No. 17657, to ensure that no violators fled the scene, and to prevent the loss of any videotape evidence. (Id. ¶ 36.) Meanwhile, Sergeant Jeri Roeder took steps to secure a search warrant. (Id. ¶ 38.) After Roeder successfully obtained a warrant and delivered it to Mataya's, the officers began searching the premises for videotapes. (Id. ¶ 38-40; Defs.' Index, filing 73, Ex. 8, Roeder Aff. ¶¶ 8-9.)³ Ultimately, a number of tapes were seized pursuant to the warrant. (Defs.' Br., Statement of Facts ¶ 40.)

3 In his affidavit, the plaintiff suggested that the search began prior to the arrival of the search warrant. (See Pl.'s Index, filing 138, Ex. 1, Ways Aff. ¶ 21.) However, the relevant portion of the affidavit has been stricken. (See Mem. and Order on Def.'s "Motion to Strike Portions of the Affidavit Offered by John Ways and the Affidavits and Depositions of Constance Chapple and Shirely [sic] Carr Mason" at 7-9.)

On August 11, 2000, the plaintiff was arrested for violating Ordinance No. 17657. (Defs.' Br., Statement of Facts ¶ 42.) Eventually, he was convicted of violating this ordinance and was ordered to pay a fine. (Id.) Then on March 2, 2001, the plaintiff filed his Amended Complaint, filing 37, alleging that Ordinance No. 17657 is "vague and/or overbroad," is either unenforceable or enforceable in an arbitrary and discriminatory fashion, and violates his right to due process; and that the defendants' actions "violated the plaintiff's civil rights pursuant to 42 U.S.C. § 1983," (Count I); that Defendants Casady, Fortenberry, Seng, and Johnson stated that the purpose of Ordinance No. 17657 is to close down Mataya's, and that the closing of his business amounts to a "taking of [his] property interest without due process," (Count II); that Ordinance No. 17657 violates his and his employees' rights to "freedom of expression," (Count III); that the actions of the defendants "inhibit and prevent the dancing acts that are performed at, Mataya's 'Babydolls' Gentlemen's Theatre Club which by a plain reading of the Ordinance are allowed as said performances were permitted prior to the passage of Ordinance 17613 or 17657," (Count IV); that, as "theaters" are exempted under Ordinance No. 17657, the enforcement of the ordinance against Mataya's was in violation of the ordinance and was "for the sole purpose of causing damage to the plaintiff and did cause damage to the plaintiff," (Count V); that by passing and enforcing Ordinance Nos. 17613, 17657, and 17730, the defendants have violated Revised Statutes of Nebraska section 28-926 and that Ordinance No. 17657 has been enforced against no other business (Count VI); that the defendants' actions violated the "Fourth Amendment right to be free from improper search and seizure," (Count VII); that Ordinance No. 16935, sections 1-2 are vague, overbroad, and violate the plaintiff's right to freedom of expression (Count VIII); that Ordinance No. 17730 is vague, overbroad, and violates the plaintiff's "right to equal protection," (Count IX); and that section 9.16.240 of the Lincoln Municipal Code (Ordinance No. 17657) violates the plaintiff's "right to equal protection," (Count X).

Defendants Don Wesely, Jeffery Fortenberry, Jon Camp, Cindy Johnson, Jonathan Cook, Annette McRoy, Coleen Seng, Jerry Shoecraft, Tom Casady, and Dana Roper, each in his or her individual capacity, moved for summary judgment on all counts of the amended complaint. (See filing 69.) This motion was granted. (See Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Absolute Legislative Immunity, filing 102; Amendment of Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Absolute Legislative Immunity, filing 103.) Defendants Tom Casady, Allen Soukup, Doug Srb, Elton Hill, Tami Lang, John Clarke, Matthew Brodd, Matthew Franken, Joseph Kaufman, Jeri Roeder, Marlan Hohnstein, Larry Bratt, Samuel Santacroce, Shawn Kennett, and Justin Darling, each in his or her individual capacity, also moved for summary judgment on all counts of the amended complaint. (See filing 72.) This motion too was granted. (See Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Qualified Immunity, filing 104.) In addition to the individuals who successfully moved for summary judgment, the amended complaint names "City of Lincoln, Nebraska" and "City of Lincoln, City Council" as defendants. (See Am. Compl., filing 37.) The defendants claim, "Plaintiff, by and through his attorney, has abandoned the Amended Complaint against the 'City of Lincoln, City Council.' (Mr. Chapin has expressly indicated a recognition that the 'City of Lincoln, City Council' is not an entity capable of suit and has notified defendant's attorney she need not separately move or brief the matter as to that body)." (Defs.' Br. in Supp. of Mot. for Summ. J. [hereinafter Defs.' Br.] at 1.) The plaintiff has not disputed this statement. Therefore, I shall consider the "City of Lincoln, City Council" to be dismissed from this case. This means that the remaining defendants include Don Wesely, Jeffery Fortenberry, Jon Camp, Cindy Johnson, Jonathan Cook, Annette McRoy, Coleen Seng, Jerry Shoecraft, Tom Casady, Dana Roper, Allen Soukup, Doug Srb, Elton Hill, Tami Lang, John Clarke, Matthew Brodd, Matthew Franken, Joseph Kaufman, Jeri Roeder, Marlan Hohnstein, Larry Bratt, Samuel Santacroce, Shawn Kennett, and Justin Darling, as each is sued in his or her official capacity, and the City of Lincoln, Nebraska. However, the defendants correctly point out that "[o]fficial-capacity suits . . . 'generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159,165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978)). Thus, given the dispositions of the defendants' pervious motions for summary judgment, filings 69 and 72 (see filings 102-104), this case "is, in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 165. Although the City of Lincoln, Nebraska, is, in a sense, the only remaining defendant, the motion for summary judgment indicates that it has been filed by the "defendants." (See Defs.' Mot. for Summ. J., filing 109.) I shall therefore use the plural term "defendants" throughout this memorandum.

The defendants have moved for summary judgment on all counts of the amended complaint. (See Defs.' Mot. for Summ. J., filing 109.) My analysis of their motion follows.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted by the court when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is sufficient evidence favoring the party opposing the motion for a reasonable jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). If the moving party meets the initial burden of establishing the nonexistence of a genuine issue, then the burden shifts to the opposing party to produce evidentiary materials demonstrating the existence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-26 (1986); Fed.R.Civ.P. 56(e). The opposing party "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57.

III. ANALYSIS A. Count I — The Vagueness and Overbreadth of Ordinance 17657

In Count I of the amended complaint, the plaintiff alleges that the defendants violated his civil rights by enacting the "vague and/or overbroad" Ordinance No. 17657. (See Am. Compl., filing 37, at 13.) The defendants argue that they are entitled to summary judgment on Count I because the ordinance is in fact neither vague nor overbroad. In addition, the defendants argue that the Heck rule prohibits the plaintiff from challenging the validity of Ordinance No. 17657. See Heck v. Humphrey, 512 U.S. 477 (1994).

Ordinance No. 17657 states as follows:

9.16.240 Sexual Contact; Prohibited.

(a) It shall be unlawful for any employee or performer (including amateur performers) in any business or commercial establishment to have any sexual contact with any other employee, performer or patron for gratuity, pay or other remuneration, direct or indirect, or, in conjunction with or as part of any performance or entertainment in any business or commercial establishment.

(b) It shall be unlawful for any patron to have sexual contact with any employee or performer in any business or commercial establishment.

(c) For the purposes of this section, sexual contact shall mean the intentional touching between a patron, a performer, or employee involving contact by or with a patron's, performer's, or employee's sexual organ, buttock(s), or breast(s), whether covered or not, or kissing, when such contact can reasonably be construed as being for the purpose of sexual arousal or sexual gratification of either party or any observer.

(d) It shall be unlawful for any person purposely or knowingly to solicit, induce, or attempt to induce another person to engage in an act or acts prohibited hereunder.

(e) It shall be unlawful for the owner, lessee, proprietor, or manager of any business or commercial establishment to knowingly allow any person on the premises of such business or commercial establishment to engage in an act or acts prohibits [sic] hereunder.

(f) The provisions of this section shall not apply to a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibits or performances.

(Am. Compl., filing 37, Ex. A.)

In order for the plaintiff to succeed on his overbreadth claim, he must demonstrate that there is a realistic danger that the ordinance will significantly "'compromise recognized First Amendment protections of parties not before the [c]ourt' who engage in 'conduct more likely to be protected by the First Amendment than [plaintiff's] own [conduct].'" Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 518 (8th Cir. 2001) (quotingMembers of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 802 (1984)). "The overbreadth doctrine is 'strong medicine' to be used 'sparingly' and only when the overbreadth is not only 'real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973)).

In order to demonstrate the overbreadth of Ordinance 17657, the plaintiff lists a number of activities that he claims would be prohibited by it:

Plaintiff alleges that patrons dancing with each [sic] could be prosecuted under the Ordinance; person [sic] engaged in sexual activity in a Hotel room could be prosecuted under the Ordinance; persons watching a football game at a stadium where entrance thereto is charged could be prosecuted under the Ordinance; ballet dancers performing at a business or commercial establishment and lifting another dancer and touching the buttock is also prohibited under the Ordinance; ice skaters that lift one another and touch either a sexual organ, buttocks or breasts could be charged under the Ordinance; as well as breast-feeding mothers, correctional officers conducting a pat-down search, cheerleaders that are thrown or caught, and lastly the groom kissing the bride at the courthouse wedding.

(Am. Compl., filing 37, ¶ 34.) In his brief, the plaintiff also suggests that gynecological exams and kissing in restaurants would also fall within the ordinance's sweep. (See Br. of Pl. in Opp'n to Mot. for Summ. J. (hereinafter "Pl.'s Br.") at 5.)

It is highly doubtful that any of these examples would fall within the ambit of Ordinance No. 17657. I agree with the defendants that once the "remuneration," "purpose of sexual arousal or sexual gratification," and "theater" provisions of the ordinance are taken into account, the plaintiff has failed to demonstrate a realistic danger that the ordinance will significantly compromise the recognized First Amendment protections of others. See Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 518 (8th Cir. 2001); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984).

In Ways v. City of Lincoln, Nebraska, 274 F.3d 514 (8th Cir. 2001), the Eighth Circuit considered whether Ordinance 17613, which was the precursor to Ordinance 17657, was facially overbroad. Ways, 274 F.3d at 516-17. The court recognized that Ordinance 17657 was similar to Ordinance 17613, except for the addition of subsection (f) to Ordinance No. 17657. (See id.) The court concluded that Ordinance 17613 infringed upon protected liberties, because "Ballet and theater performances receive greater First Amendment protection than nude dancing, and Ordinance No. 17613 could have been enforced to prohibit the type of simulated sex to be found in productions of Hair." Id. at 518. Continuing, the court stated, "The ordinance could also have been enforced to prohibit stage actors from kissing and ballet dancers or ice skaters from lifting each other by the buttocks, if such acts could 'reasonably be construed' to be for the 'sexual arousal or gratification' of any observer or performer."⁴ Id. It was also noted that although the government has a sufficiently substantial interest in curbing the recognized harmful secondary effects associated with adult entertainment businesses, Ordinance 17613 was not narrowly tailored because it potentially prohibited "theater performances, ballet performances, and many other forms of live entertainment." Id. at 519. See also id. at 518-19. The court distinguished Ordinance No. 17613 from the Iowa statute discussed in Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998), which contained an exception for "a theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances." Ways, 274 F.3d at 519 (quoting Farkas v. Miller, 151 F.3d 900, 902 (8th Cir. 1998)). The court noted that there were certain minor differences between the Lincoln and Iowa laws, but that "[t]he most significant difference . . . is that Ordinance No. 17613 did not contain any exception for artistic venues like the Iowa statute and like Lincoln's new Ordinance No. 17657 ." Ways, 274 F.3d at 519 (emphasis added). The court also suggested that the Iowa statute discussed inFarkas "could have provided a model which had survived constitutional challenge" for the drafters of Ordinance No. 17613. Id. at 519 n. 4.

4 The court noted that Ordinance 17613 "prohibited touching for the 'gratification of either party or any observer,' and a far greater range of conduct may be directed toward 'gratification' than toward 'sexual arousal.'" Ways, 274 F.3d at 520. Ordinance 17657 specifies that it prohibits contact that can reasonably be construed as being for the purpose of sexual gratification of either party or any observer. (See Am. Compl., filing 37, Ex. A.)

It seems to me that Ordinance No. 17657, which includes an exception for artistic venues, has resolved the overbreadth concerns identified by the Eighth Circuit in Ways. Indeed, Ordinance No. 17657 contains the same "theater exception" provision that was approved by the Eighth Circuit inFarkas. There is no realistic danger that the ordinance will significantly compromise the recognized First Amendment protections of others who engage in "'conduct more likely to be protected by the First Amendment than [plaintiff's] own [conduct].'" Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 518 (8th Cir. 2001) (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 802 (1984)). I find that there is no genuine issue for trial, and that the defendants are entitled to judgment as a matter of law on the plaintiff's claim that Ordinance No. 17657 is unconstitutionally overbroad.

The defendants also argue that Ordinance No. 17657 is not unconstitutionally vague.

In order to avoid a finding of vagueness, a statute must (1) be clear enough to provide a person of ordinary intelligence with notice of what conduct is prohibited, and (2) provide standards for those who enforce the prohibitions. . . . Mathematical precision is not required in legislation. Although there may be issues of interpretation regarding the meaning of a statute, that in itself does not give rise to a finding of unconstitutional vagueness. Moreover, "It will always be true that the fertile legal 'imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question.'"

Farkas v. Miller, 151 F.3d 900, 905-06 (8th Cir. 1998) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 n. 15 (1972)) (citations omitted). In a previous case, I considered Ordinance No. 17613 and found that it was not unconstitutionally vague. See Ways v. City of Lincoln, Case No. 4:00CV3060 (D.Neb. Mar. 10, 2000) (memorandum of decision on motion for temporary restraining order and preliminary injunction) at 3-4; (see also Defs.' Index, filing 73, Ex. 17 at 3-4.) To refresh, in that memorandum I stated as follows:

I conclude that this ordinance is not vague. I think a person of ordinary intelligence would be able to discern what he or she was prohibited by this ordinance from doing. The key is "sexual contact," which is explicitly defined as "the intentional touching of a person's sexual organ, buttocks, or breasts, whether covered or not, or kissing, when such contact can reasonably be construed as being for the purpose of sexual arousal or gratification of either party or any observer." The plaintiff raises such questions as whether "breasts" means that both breast must be involved or, I suppose by extrapolation, whether there could be a violation if a woman had only one breast, but I think a person of ordinary intelligence would not be put at sea over such issues. The ordinance would not trap the innocent, not does it operate "to inhibit the exercise of [basic First Amendment] freedoms" within the meaning of Greyned, supra, at 109.

Ways v. City of Lincoln, Case No. 4:00CV3060 (D.Neb. Mar. 10, 2000) (memorandum of decision on motion for temporary restraining order and preliminary injunction) at 3-4. It must be noted that Ordinance No. 17613 is similar to Ordinance No. 17657, except for the addition of subsection (f) to Ordinance No. 17657. (Compare Defs.' Index, filing 73, Ex. 14with id., Ex.13.) For the reasons stated in the memorandum of decision on motion for temporary restraining order and preliminary injunction in Case No. 4:00CV3060, I find that subsections (a)-(e) of Ordinance No. 17657 are not unconstitutionally vague.

If Ordinance No. 17567 is unconstitutionally vague, its vagueness can only be due to the newly-added subsection (f). However, the Eighth Circuit has already determined that a statute containing a provision identical to subsection (f) was not unconstitutionally vague. See Farkas v. Miller, 151 F.3d 900, 902, 905-06 (8th Cir. 1998). The court stated, "Persons of ordinary intelligence would not be confused as to the coverage of the statute's 'theater' exception." Id. at 905. I must conclude that Ordinance No. 17657's indistinguishable "theater exception" too would confuse no one of ordinary intelligence.

I find that Ordinance No. 17657 is neither vague nor overbroad. The defendants are therefore entitled to summary judgment on Count I of the plaintiff's complaint.

In passing, I note that the plaintiff alleges that Ordinance 17657 "has grandfathered Mataya's Babydolls Gentleman's Theatre Club and thus law enforcement officials are prevented from enforcing the Ordinance against said theatre or theatres." (Am. Compl., filing 37, ¶ 39.) Variants of this allegation are repeated in other counts of the amended complaint. (See, e.g., id. ¶¶ 50, 52.) Presumably, the plaintiff means to allege that since his club was in operation prior to the passage of Ordinance No. 17657 and because it is called a "theatre," Mataya's falls within the ordinance's "theater exception." However, I find that subsection (f) of Ordinance No. 17657 is simply not a "grandfather clause," and even if it were, it would be inapplicable to the plaintiff's establishment. As the Eighth Circuit has expressly recognized, this theater exception "appropriately limits the reach of the restrictions to the type of adult entertainment that is associated with harmful secondary effects." Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998). It does not serve to exempt establishments such as the plaintiff's, which is undisputedly an adult entertainment business.

Nevertheless, the plaintiff maintains that the entertainment provided at Mataya's constitutes a "theatrical performance" within the meaning of the ordinance's theater exception. In support of this claim, the plaintiff refers me to the testimony of his expert witness, Shirley Carr Mason. (See Pl.'s Br. at 8.) However, Mason testified that the "couch dance" was inconsistent with her notion of a "theatrical performance," and that a "table dance" described by an undercover police officer was, in her view, a theatrical performance merely because the undercover officer was the one "playing a role." (See Pl.'s Index, filing 138, Ex. 5, Mason Dep. at 39:11:18, 49:12-15, 52:5-53:9, 53:18-55:11, 56:14:19, 58:12-61:15.) Only a stage dance involving "one dancer performing in front of one or more patrons" was unequivocally consistent with Mason's own definition of a theatrical performance (see id. at 53:10-17), and it seems that the specific elements of the stage dances performed at Mataya's (such as the "whipped cream dance" and the dancers' manipulation of their breasts to retrieve currency from the mouths of patrons) were not described to the witness. I find that the plaintiff has failed to submit evidence that raises a genuine issue as to whether Mataya's is a "theater . . . primarily devoted to the arts or theatrical performances." (Am. Compl., filing 37. Ex. A (Ordinance No. 17657(f)) (emphasis added).)

Finally, although I have agreed with the defendants that they are entitled to summary judgment on Count I of the amended complaint, I will address the defendants' argument that each of the plaintiff's claims that challenge the validity of Ordinance No. 17657 must be dismissed as improper collateral attacks upon the plaintiff's prior conviction. InHeck v. Humphrey, 512 U.S. 477 (1994), the Court held as follows:

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (footnotes omitted). The defendants argue that the Heck rule is applicable here because the plaintiff was convicted of violating Ordinance No. 17657 (see Defs.' Index, filing 73, Ex. 10), and his conviction has not been invalidated (see Defs.' Br. at 70). Furthermore, the defendants contend that if any of the plaintiff's claims attacking the constitutionality of Ordinance No. 17657 were successful, the invalidity of his prior conviction would be implied. Therefore, the defendants claim that under Heck, the plaintiff's challenges to the constitutionality of Ordinance No. 17657 are not cognizable under section 1983.

Although the plaintiff has not responded to it, I find that I must reject the defendants' argument. The evidence shows that the plaintiff was not incarcerated as a result of his conviction, but merely fined. InHeck, the Court stated that the rule described above applies "when a state prisoner seeks damages in a § 1983 suit." Heck v. Humphrey, 512 U.S. 477, 487 (1994) (emphasis added). More importantly, Justice Souter (who was joined by Justices Blackmun, Stevens, and O'Connor) explained in his concurring opinion that the Heck rule should not be deemed applicable to persons who were not "in custody":

If these individuals (people who were merely fined, for example, or who have completed short terms of imprisonment, probation, or parole, or who discover (through no fault of their own) a constitutional violation after full expiration of their sentences), like state prisoners, were required to show the prior invalidation of their convictions or sentences in order to obtain § 1983 damages for unconstitutional conviction or imprisonment, the result would be to deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling. The reason, of course, is that individuals not "in custody" cannot invoke federal habeas jurisdiction, the only statutory mechanism besides § 1983 by which individuals may sue state officials in federal court for violating federal rights. That would be an untoward result.

Heck, 512 U.S. at 500 (Souter, J., concurring in the judgment). InSpencer v. Kemna, 523 U.S. 1 (1998), Justice Souter reiterated his view that persons not in custody need not satisfy Heck's "favorable-termination requirement." Spencer v. Kemna, 523 U.S. 1, 18-21 (1998) (Souter, J., concurring). Justices O'Connor, Breyer, and Ginsburg joined in Souter's concurrence. Id. Justice Stevens, who filed a dissenting opinion in Spencer, also reaffirmed his agreement with Justice Souter's view that a person who "does not have a remedy under the habeas statute . . . may bring an action under 42 U.S.C. § 1983." Spencer, 523 U.S. at 992 (Stevens, J., dissenting). Thus, it appears that five current members of the Court (i.e., Justices Souter, Ginsburg, Stevens, O'Connor, and Breyer) would hold that a person is not required to show that his prior conviction has been invalidated in order to obtain section 1983 damages if he could not have invoked habeas jurisdiction. Since the plaintiff could not have invoked habeas jurisdiction in this case, I must reject the defendants' argument that the plaintiff's causes of action attacking the validity of Ordinance No. 17657 are barred under the rule set forth in Heck v. Humphrey.

B. Count II — A Taking Without Due Process

Count II of the plaintiff's amended complaint alleges that certain ordinances were intended to "shut down" Mataya's, and that the resulting loss of income amounts to a "taking of [his] property interest without due process." (Am. Compl., filing 37, ¶ 45. See also id. ¶¶ 42-45.) The defendants argue that the plaintiff has failed to allege a "deprivation of any federal right or privilege and as such the City is entitled to summary judgment. . . ." (Defs.' Br. at 27.)

"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). The defendants argue that the plaintiff has failed to allege either a taking without payment of just compensation in violation of the Fifth Amendment or a taking without due process in violation of the Fifth and Fourteenth Amendments, and has therefore failed to state a claim under section 1983.

First, it is apparent that the plaintiff has not alleged a taking without just compensation in violation of the Fifth Amendment. There is simply no allegation that the plaintiff's property has been taken by the defendants. However, "[A] plaintiff can bring a claim that the application of the regulation goes so far and destroys the value of his or her property to such an extent that it has the same effect as a taking by eminent domain." Eide v. Sarasota County, 908 F.2d 716, 721 (11th Cir. 1990). It is likely that this "due process takings" claim is the sort of claim that the plaintiff intends to set forth in Count II of his complaint. See id. The defendants point out that there are two varieties of due process takings claims: procedural and substantive. Here, the plaintiff has not alleged that he was deprived of any procedural right. Therefore, his takings claim must be based upon substantive due process rights.

In support of their argument that the plaintiff has failed to set forth a substantive due process claim, the defendants refer me to Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102 (8th Cir. 1992), a case involving a land-use ordinance. In Chesterfield, the plaintiff claimed that the defendant deprived it of property without due process of law by enforcing an invalid zoning ordinance against it.Chesterfield, 963 F.2d at 1104. The court determined that the plaintiff could not prevail on its substantive due process claim without alleging that the government action was "truly irrational." Id. at 1105. Here, the plaintiff has not alleged that the defendants' actions amounted to the sort of truly irrational governmental conduct that would support a substantive due process claim; nor have I been referred to any evidence that might bolster such an allegation.

The ordinances at issue in this complaint are not zoning or land-use ordinances, but are criminal in nature. I therefore have my doubts as to whether the "truly irrational" requirement set forth in Chesterfield is applicable in this case. However, the plaintiff has not responded to the defendants' argument in any meaningful way: he has provided no alternate standard for pleading a substantive due process claim, nor has he referred me to a single case in opposition to the defendants' arguments. Instead, he states only that his rights were violated because "this law was specifically passed to put Mataya's out of business." (See Pl.'s Br. at 5-6.) The plaintiff has filed a confusing amended complaint, and the defendants have done well in deciphering it. The plaintiff has not attempted to challenge the defendants' construction of his claims or avail himself of the opportunity to clarify his complaint. I find that the plaintiff has failed to allege sufficiently a substantive due process takings claim, and the defendants are entitled to summary judgment on Count II of the amended complaint.

C. Count III — Freedom of Expression

Count III of the amended complaint alleges that Ordinance No. 17657 violates the plaintiff's right to "freedom of expression." (Am. Compl., filing 37, ¶ 48.) Although "totally nude dancing is expressive conduct that is entitled to some measure of First Amendment protection,"Farkas v. Miller, 151 F.3d 900, 902 (8th Cir. 1998) (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 581, 587-88 (1991), the defendants argue that Ordinance No. 17657 does not unconstitutionally burden the plaintiff's right to freedom of expression. In order to evaluate the defendants' argument, I must first identify the appropriate test for determining whether the defendants' ordinance impermissibly infringes upon the plaintiff's right to engage in protected activity.

In Farkas, the Eighth Circuit reviewed an Iowa statute that "require[d] exotic dancers to wear G-strings and pasties during their performances."Farkas, 151 F.3d at 902. The court studied the Supreme Court's "splintered" decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), in order to determine its precedential value. See Farkas, 151 F.3d at 902. In Barnes, the Supreme Court considered an Indiana statute that prohibited "public indecency." See Barnes, 501 U.S. at 563; Farkas, 151 F.3d at 902. The plurality opinion of Chief Justice Rehnquist states that the four-part test set forth in United States v. O'Brien, 391 U.S. 367, 377 (1968), must be applied to determine whether the statute's burden on expressive conduct was justified:

This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (footnotes omitted)). See also Farkas, 151 F.3d at 902. The plurality concluded that each of the four elements of this test was satisfied by the Indiana statute: the statute was within the constitutional power of the state; the statute furthered a substantial government interest in protecting order and morality; the government's interest was not related to the suppression of free expression; and the statute imposed only an incidental restriction on First Amendment freedom that was no greater than necessary to serve the state's purpose. See Barnes, 501 U.S. at 567-72; Farkas, 151 F.3d at 902-03.

After reviewing Justice Rehnquist's opinion in Barnes, the Eighth Circuit explained that Justice Souter's opinion, rather than the plurality opinion, actually represents the holding of the Court:

Justice Souter also filed an opinion concurring in the judgment. He agreed with the plurality and the dissenters that nude dancing enjoys at least some degree of protection under the First Amendment. He also concurred with the plurality's view that the four-part O'Brien test was the proper standard of review. However, while the plurality found society's moral views sufficient to justify the limitation at issue, Justice Souter relied instead on the state's interest in combating the secondary effects of adult entertainment.

. . . .

None of the opinions commanded a majority of the Court. We do not regard the view expressed by Justice Scalia as binding on us, in light of the fact that no other Justice concurred with his major premise — that nude dancing is not an expressive activity that warrants constitutional protection. Thus, we must look for guidance in the opinion of either the plurality or Justice Souter. The Court has instructed that, "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'"

We find that the opinion of Justice Souter presented the narrowest resolution of the issues in Barnes, as the plurality opinion is broad enough to encompass the standard he articulated. By sanctioning the promotion of society's moral views as a justification for restrictions on expressive activity, the plurality implied that an interest in diluting the criminal element would likewise suffice. The reverse does not hold true. Justice Souter's failure to join the plurality opinion as well as his separate statements express his reluctance to concede that the state's interest in protecting morality would adequately support the restrictions in question. His opinion therefore provides the most common rationale underlying the Court's judgment in Barnes.

Farkas, 151 F.3d at 903-04 (quoting Marks v. United States, 430 U.S. 188, 193 (1977)) (citations and footnote omitted). I conclude that I must apply the O'Brien test as interpreted by Justice Souter in Barnes and by the Eighth Circuit in Farkas to the facts before me in order to determine whether Ordinance No. 17657 impermissibly infringes upon the plaintiff's right to engage in protected expression.

Under the O'Brien test, I must first determine whether the ordinance is within the constitutional power of the government. See Barnes, 501 U.S. at 567; Farkas, 151 F.3d at 905. In this case, it is undisputed that the enactment of Ordinance No. 17657 was within the authority of the City of Lincoln. (See Am. Compl., filing 37, ¶¶ 12, 18-20.) Therefore, I find that the first element of the O'Brien test is satisfied.

It is also clear that the second element of the O'Brien test has been met in this case. Ordinance No. 17657 furthers the important, substantial government interest in combating the secondary effects of adult entertainment businesses, such as prostitution, sexual assaults, and other criminal activity. See Barnes, 501 U.S. at 582-85 (Souter, J., concurring in the judgment). See also Farkas, 151 F.3d at 905. The plaintiff responds that there is no evidence of secondary effects in this case, and that "[t]he testimony of Plaintiff's expert, Connie Chapple, clearly indicates that there really does not appear to be any adverse or secondary effects [sic] for the type of bar or operation that Mr. Ways is running." (Pl.'s Br. at 7.) However, the plaintiff's argument ignores the fact that the defendants are not required to come forward with evidence of the deleterious secondary effects associated with the adult entertainment industry. The Eighth Circuit noted that a statute can further a substantial state interest in preventing secondary effects even if there is no indication that the legislature specifically intended to further that interest. See Farkas, 151 F.3d at 905 (quoting Barnes, 501 U.S. at 582 (Souter, J. concurring in the judgment)). "Additionally, [Justice Souter] did not find it necessary for the state to adduce localized evidence that nude adult entertainment was associated with criminal behavior such as prostitution or sexual assault, because the government "'was entitled to rely on the experiences of . . . other [communities]."'" Farkas, 151 F.3d at 903 (quoting Barnes, 501 U.S. at 584 (Souter, J., concurring in the judgment)). Justice Souter noted that the harmful secondary effects of adult entertainment businesses are well-established as a matter of law, see Barnes, 501 U.S at 583-84 (Souter, J., concurring in the judgment) (citing cases), and stated specifically that he "[did] not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every case," id. at 584-85. It seems to me that the Eighth Circuit has adopted Justice Souter's view, as it did not require evidence that the Iowa legislature specifically intended to further an interest in combating deleterious secondary effects by passing its "indecent exposure" statute. See Farkas, 151 F.3d at 905. I conclude that Ordinance No. 17657's prohibition of "sexual contact" furthers the current governmental interest in combating the well-recognized secondary effects associated with adult entertainment businesses such as the plaintiff's. The second prong of the O'Brien test is satisfied.

The third element of the O'Brien test is satisfied if the governmental interest furthered by the ordinance is unrelated to the suppression of free expression. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (footnotes omitted)). See also Farkas, 151 F.3d at 902. The Eighth Circuit stated specifically that "the interest in reducing the secondary effects associated with nude dancing is unrelated to the suppression of free expression" for the reasons stated in Justice Souter's concurring opinion in Barnes. Farkas, 151 F.3d at 905. I find that the defendants' interest in reducing the secondary effects associated with sexual contact is likewise unrelated to the suppression of free expression. The third prong of the O'Brien test has been met in this case.

Finally, the ordinance's incidental restrictions on alleged First Amendment freedoms will be deemed sufficiently justified under theO'Brien test if those restrictions are no greater than is essential to further the government's interest. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (footnotes omitted)). See also Farkas, 151 F.3d at 902. I find that in this case, the ordinance's "theater exception" renders its prohibition of sexual contact no greater than essential to further the City's interest in combating secondary effects. Therefore, the fourth element of the O'Brien test has been satisfied.

I conclude that Ordinance No. 17657 does not impermissibly infringe upon the plaintiff's freedom of expression, and the defendants are entitled to judgment as a matter of law on Count III of the plaintiff's amended complaint.

D. Count IV

Count IV of the amended complaint incorporates all previous paragraphs of the complaint, and then adds the following allegation:

That the plaintiff alleges that the above actions of the defendants inhibit and prevent the dancing acts that are performed at Mataya's "Babydolls" Gentlemen's Theatre Club which by a plain reading of the Ordinance are allowed as said performances were permitted prior to the passage of Ordinance 17613 or 17657.

(Am. Compl., filing 37, ¶ 50.) The defendants argue that Count IV fails to state a claim under section 1983, because there is no allegation that there has been a violation of a right secured by the Constitution or laws of the United States by a person acting under color of state law,see West v. Atkins, 487 U.S. 42, 48 (1988). (See Defs.' Br. at 32.) In addition, the defendants suggest that at best, Count IV restates the plaintiff's claim that his right to "freedom of expression" has been violated or that Mataya's was "grandfathered" by Ordinance No. 17657. (See id.) I agree with the defendants. Count IV of the amended complaint does not appear to allege sufficiently a cause of action under section 1983, and even if I interpret the allegation set forth in Count IV generously, I have already rejected the plaintiff's claims based upon his right to "freedom of expression" and the "grandfather clause." (See supra Parts III.A. and III.C.) The defendants' motion for summary judgment on Count IV of the amended complaint shall be granted.

E. Count V

Like Count IV before it, Count V of the amended compliant begins by incorporating the allegations set forth in the first fifty paragraphs before adding the following claims:

That the plaintiff alleges that the above actions of the defendants enforcing Ordinance 17657 is [sic] prohibited by a plain reading of the Ordinance[.] [T]heatre or theaters are exempted from the Ordinance.

That the plaintiff alleges that the enforcement of Exhibit "A" was in violation of the Ordinance and for the sole purpose of causing damage to the plaintiff and did cause damage to the plaintiff.

(Am. Compl., filing 37, ¶¶ 52-53.) Again, the defendants argue that Count V does not state a claim under section 1983. (See Defs.' Br. at 33 (citing DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir. 1999). The plaintiff appears to have no response to the defendants' argument. I find that Count V fails to state a claim under section 1983, or at best merely restates the plaintiff's "grandfather" claim, which I have rejected previously. (See supra Part III.A.) The defendants are entitled to summary judgment on Count V of the amended complaint.

F. Count VI

Count VI of the amended complaint appears to allege a violation of Revised Statutes of Nebraska section 28-926, and possibly an equal protection violation. I have already determined that this count does not properly allege an equal protection violation. (See Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Qualified Immunity, filing 104, at 7-8 (quoting Brandt v. Davis, 191 F.3d 887, 893 (8th Cir. 1999)).) The amended complaint does not allege that people or entities similarly situated to the plaintiff have been treated differently than the plaintiff, and I have been directed to no evidence to that effect.⁵ Therefore, to the extent that Count VI is intended to allege an equal protection violation, I find that the defendants are entitled to summary judgment on Count VI.

5 The plaintiff's evidence relevant to this point has been stricken. (See Mem. and Order on Def.'s "Motion to Strike Portions of the Affidavit Offered by John Ways and the Affidavits and Depositions of Constance Chapple and Shirely [sic] Carr Mason" at 5-6.)

I have also already determined that the plaintiff may not obtain relief under Revised Statutes of Nebraska section 28-926. (See Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Absolute Legislative Immunity, filing 102, at 10.) To refresh, I stated:

I need not decide whether the entire statute, § 28-926, is unconstitutional under the Nebraska Constitution. Cause of Action VI is planted on the treble damage feature of that statute and [it] is the treble damage feature that the Supreme Court of Nebraska in Abel [v. Conover, 170 Neb. 926 (1960)] found to be unconstitutional in a similar statute. The plaintiff's amended complaint prays for treble damages, which is the only relief the statute purports to afford. Amended Complaint p. 21.

(Mem. and Order on Defs.' Mot. for Summ. J. Based Upon Absolute Legislative Immunity, filing 102, at 10.) For this reason, the plaintiff's section 28-926 claim must be dismissed. In addition, it is questionable whether section 28-926 supports a civil cause of action at all, see, e.g., Stagemeyer v. County of Dawson, 192 F. Supp.2d 998, 1011 (D.Neb. 2002), and even if it does, the statute seems to apply only to "Any public servant or peace officer." Neb. Rev. Stat. § 28-926(1). As I have noted above, the only true remaining defendant in this case is the City of Lincoln, Nebraska (see supra Part I), which is clearly not a "public servant or peace officer" as those terms are defined under Nebraska law. See Neb. Rev. Stat. § 28-109(14), (18), amended by 2002 Neb. Laws L.B. 1105.

I find that Count VI fails to state a claim upon which relief may be granted, and the defendants are therefore entitled to judgment on this count of the amended complaint.

G. Count VII — Fourth Amendment Violation

Count VII alleges that the defendants' actions "were in violation of [the plaintiff's] Fourth Amendment right to be free from improper search and seizure." (Am. Compl., filing 37, ¶ 58.) In order for the City of Lincoln to be liable under section 1983, "the rule has been that there must be allegations that its policy, custom, or practice caused the constitutional injury." Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 723 (8th Cir. 1997). The Supreme Court has stated that:

As our § 1983 municipal liability jurisprudence illustrates, however, it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the "moving force" behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.

Board of County Commissioners of Bryan Co., Oklahoma v. Brown, 520 U.S. 397, 404 (1997).

Here, the amended complaint is devoid of allegations suggesting any causal link between an action of the City of Lincoln and a Fourth Amendment violation. In his brief in opposition to the defendants' motion for summary judgment, the plaintiff does not supply any evidence or argument concerning such a direct causal link, but instead argues only that he was not served with a copy of the search warrant and that the search of Mataya's began prior to the arrival of the search warrant. (See Pl.'s Br. at 9.) There is simply no allegation of "conduct properly attributable" to the City of Lincoln, let alone an allegation that the City of Lincoln, through its deliberate conduct, was the moving force behind the Fourth Amendment injury claimed by the plaintiff. Brown, 520 U.S. at 404. Nor has the plaintiff come forward with any evidence raising a genuine issue as to whether the City of Lincoln performed an action that had a direct causal link with the alleged Fourth Amendment violation. For these reasons, I find that there is no genuine issue for trial, and the defendants are entitled to judgment as a matter of law on Count VII of the amended complaint.

H. Count VIII

The substance of Count VIII begins at paragraph 62 of the amended complaint, which merely seems to restate the plaintiff's claims that Mataya's is protected by the "grandfather clause" and that the plaintiff's freedom to "express [his] views" is in jeopardy. (See Am. Compl., filing 37, ¶ 62.) I have considered these claims and disposed of them. (See supra Parts III.A. and III.C.) The defendants are entitled to summary judgment on the claims set forth in paragraph 62 of the amended complaint.

In paragraph 63, the amended complaint states the following:

That the plaintiff further alleges that Ordinance 16935 § 1 and 2 are vague and overbroad[,] violate plaintiff's and his employees' right to freedom of expression and that the enactment of Exhibit "A" was for the sole purpose of limiting plaintiff [sic] view towards sexuality and plaintiff's view that a women [sic] should have the right to choose employment in this industry and for the purpose of shutting down Mataya's "Babydolls["] Gentlemen's Theatre Club.

(Am. Compl., filing 37, ¶ 63.) The defendants argue that they are entitled to summary judgment on the claims set forth in this paragraph. First, the defendants argue as follows:

Ordinance 16935 § 1 is simply a statement of intent relating to the City's regulation of nudity and cites as the city's purpose the intent to avoid the harmful secondary effects of such activity. Section 1 of Ordinance No. 16935 is not a substantive law and creates no criminal violation. It is not capable of enforcement and as such cannot serve as a basis for a cause of action in this suit.

(See Defs.' Br. at 51-52 (citation omitted). See also Defs.' Index, filing 73, Ex. 15.) The plaintiff does not dispute the defendants' argument. I find that the defendants are entitled to summary judgment on the part of Count VIII that is directed toward section 1 of Ordinance No. 16935.

With respect to Ordinance No. 16935, section 2, the defendants first suggest that the plaintiff's claims have been rendered moot by the repeal of that ordinance. Ordinance No. 16935, section 2 has been replaced by Ordinance No. 17730, which extends the City's prohibition of nudity to "public place[s] or . . . any place open to the public," (Defs.' Index, filing 73, Ex. 16), and includes a broader definition of "nudity." (Compare Defs.' Index, filing 73, Ex. 15 (Ordinance No. 16935) with Defs.' Index, filing 73, Ex. 16 (Ordinance No. 17730).)

There appears to be nothing to prohibit the City of Lincoln from returning to its "old ways" by reenacting Ordinance No. 16935, section 2. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 n. 10 (1982) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). See also id. at 289. Nor have the defendants argued that "subsequent events [have] made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. at 289 n. 10. Therefore, I shall not dismiss the remaining portion of Count VIII as moot.

The defendants next argue that Ordinance No. 16935, section 2 is not overbroad. The ordinance states:

9.16.230 Public Nudity; Unlawful.

It shall be unlawful for any person to intentionally expose his or her genitals, pubic area, or buttocks while employed in providing any service, product, or entertainment in any business or commercial establishment.

(Defs.' Index, filing 73, Ex. 15.) In addition, it should be noted that section 1 of the ordinance contained the following language in its "Statement of Intent": "This prohibition is not intended to extend to any expression of opinion or the performance of a bona fide play, ballet, or drama protected by the First Amendment to the Constitution of the United States or by Article 1, § 5 of the Constitution of the State of Nebraska." (Id.)

As I noted in Part III.A., supra, in order for the plaintiff to succeed on his overbreadth claim, he must demonstrate that there is a realistic danger that the ordinance will significantly "'compromise recognized First Amendment protections of parties not before the [c]ourt' who engage in 'conduct more likely to be protected by the First Amendment than [plaintiff's] own [conduct].'" Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 518 (8th Cir. 2001) (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 802 (1984)). "The overbreadth doctrine is 'strong medicine' to be used 'sparingly' and only when the overbreadth is not only 'real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" Id. (quotingBroadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973)).

To demonstrate the overbreadth of Ordinance 17657, the plaintiff listed a number of activities that he claimed would be prohibited by it. (See supra Part III.A.) After considering these activities, I concluded that "the plaintiff has failed to demonstrate a realistic danger that the ordinance will significantly compromise the recognized First Amendment protections of others." (Supra Part III.A.) The plaintiff has not specifically referred me to any examples of conduct prohibited by Ordinance No. 16935, section 2 that are more likely to be protected by the First Amendment than the plaintiff's own conduct, and the examples cited by the plaintiff in connection with Ordinance No. 17657 do not support a finding that Ordinance No. 16935, section 2 is overbroad. Also, I find that the "theater exception" in Ordinance No. 16935 limits the possibility that the ordinance would infringe upon protected speech or conduct. See Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 516-19 (8th Cir. 2001); Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998).

Since the plaintiff has failed to show that there is a realistic danger that Ordinance No. 16935, section 2 will significantly compromise the recognized First Amendment protections of others, I find that there is no genuine issue for trial, and that the defendants are entitled to judgment as a matter of law on the plaintiff's claim that Ordinance No. 16935, section 2 is unconstitutionally overbroad.

The defendants next claim that Ordinance No. 16935, section 2 is not vague. Again, in order for an ordinance to survive a vagueness challenge, it must "(1) be clear enough to provide a person of ordinary intelligence with notice of what conduct is prohibited, and (2) provide standards for those who enforce the prohibitions." Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998). "Mathematical precision is not required in legislation. Although there may be issues of interpretation regarding the meaning of a statute, that in itself does not give rise to a finding of unconstitutional vagueness. Moreover, 'It will always be true that the fertile legal "imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question."'" Farkas v. Miller, 151 F.3d 900, 905-06 (8th Cir. 1998) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 n. 15 (1972)) (citations omitted).

I agree with the defendants that Ordinance No. 16935, section 2 is not vague. A person of ordinary intelligence will understand what this ordinance prohibits him or her from doing, and the ordinance provides law enforcement personnel with an adequate enforcement standard. The terms "intentionally expose," "genitals," "pubic area," "buttocks," and "while employed in providing any service, product, or entertainment in any business or commercial establishment" are not puzzling. I find no merit in the plaintiff's argument that "[i]t is clear that what would constitute public nudity and what situations public nudity should or should not be allowed is clearly vague." (Pl.'s Br. at 10.) For these reasons, the defendants are entitled to summary judgment on the plaintiff's claim that Ordinance No. 16935, section 2 is vague.

Finally, paragraph 63 of Count VIII insinuates that Ordinance No. 16935, section 2 infringes upon the plaintiff's freedom of expression. As I have explained above at Part III.C, I am to apply the O'Brien test as interpreted by Justice Souter in Barnes and by the Eighth Circuit inFarkas in order to determine whether this ordinance impermissibly infringes upon the plaintiff's right to engage in protected expression.

Under this test, I must first determine whether the ordinance is within the constitutional power of the government. See Barnes, 501 U.S. at 567;Farkas, 151 F.3d at 905. There appears to be no dispute on this point. Therefore, I find that the first element of the O'Brien test is satisfied.

The second element of the O'Brien test has also been met in this case. The ordinance furthers the important and substantial government interest of combating the secondary effects of adult entertainment businesses, such as prostitution, sexual assaults, and other criminal activity. See Barnes, 501 U.S. at 582-85 (Souter, J., concurring in the judgment). See also Farkas, 151 F.3d at 905. (See also supra Part III.C.)

The third element of the O'Brien test is satisfied if the governmental interest furthered by the ordinance is unrelated to the suppression of free expression. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (footnotes omitted)). See also Farkas, 151 F.3d at 902. I have already pointed out that the Eighth Circuit stated specifically that "the interest in reducing the secondary effects associated with nude dancing is unrelated to the suppression of free expression" for the reasons stated in Justice Souter's concurring opinion in Barnes. Farkas, 151 F.3d at 905. (See supra Part III.C.) The defendants' interest in reducing the secondary effects associated with "public nudity" as defined in Ordinance No. 16935 is likewise unrelated to the suppression of free expression. Therefore, the third prong of the O'Brien test has been met.

Finally, the ordinance's incidental restrictions on alleged First Amendment freedoms will be deemed sufficiently justified under theO'Brien test if those restrictions are no greater than is essential to further the government's interest. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567 (1991) (quoting United States v. O'Brien, 391 U.S. 367, 376-77 (1968) (footnotes omitted)). See also Farkas, 151 F.3d at 902. (See also supra Part III.C.) I find that the "theater exception" in Ordinance No. 16935 renders its prohibition of public nudity no greater than essential to further the City's interest in combating secondary effects.

All four prongs of the O'Brien test have been satisfied, and I therefore conclude that Ordinance No. 16935, section 2 does not impermissibly infringe upon the plaintiff's freedom of expression.

The defendants are entitled to judgment as a matter of law on all claims set forth in Count VIII of the plaintiff's amended complaint.

I. Count IX

Count IX of the plaintiff's amended complain alleges as follows:

That the plaintiff further alleges that Ordinance 17730 is vague and overbroad violate [sic] plaintiff's and his employees' right to equal protection under the law as it threats [sic] women in a manner different from. [sic]

(Am. Compl., filing 37, ¶ 66.)

Ordinance No. 17730 states:

9.16.230 Public Nudity; Unlawful.

It shall be unlawful for a person to, knowingly or intentionally, in a public place or in any place open to the public, appear in a state of nudity.

'Nudity' means the showing of the human male or female genitals or pubic area with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering on any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

This section shall not apply to:

Any theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances and in which any of the circumstances contained in this section were permitted or allowed as part of such art exhibit or performance;

Any dressing/changing room or restroom facility open to the public;

Any person under twelve years of age; or

Mothers who are breast feeding.

(Defs.' Index, filing 73, Ex. 16.)⁶ The defendants argue that this ordinance is not vague, overbroad, or offensive to the plaintiff's right to equal protection.

6 The defendants argue that Count IX of the complaint is moot because Ordinance No. 17730 has been amended by Ordinance No. 17757. (See Index of Evidence Offered in Supp. of Mot. for Summ. J., filing 110, Ex. 29.) However, once again there appears to be nothing to prevent the City of Lincoln from returning to its "old ways" by reenacting Ordinance No. 17730. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 n. 10 (1982) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). See also id. at 289. I conclude that pursuant to the "voluntary cessation" doctrine described in Aladdin's Castle, Count IX of the amended complaint has not been rendered moot by Ordinance No. 17757. See Aladdin's Castle, Inc., 455 U.S. at 289.

First, the defendants contend that Ordinance No. 17730 is not overbroad. I have stated previously that the plaintiff must demonstrate that there is a realistic danger that the ordinance will significantly "'compromise recognized First Amendment protections of parties not before the [c]ourt' who engage in 'conduct more likely to be protected by the First Amendment than [plaintiff's] own [conduct].'" Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 518 (8th Cir. 2001) (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 802 (1984)). (See supra Part III.A., H.) The plaintiff has not presented me with examples of conduct prohibited by Ordinance No. 17730 that are more likely to be protected by the First Amendment than the plaintiff's own conduct. In addition, it seems to me that subsection (c) of Lincoln Municipal Code section 9.16.230 prevents the ordinance from unduly infringing upon protected expressions. See, e.g., Ways v. City of Lincoln, Nebraska, 274 F.3d 514, 516-19 (8th Cir. 2001); Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998). The plaintiff has failed to raise a genuine issue as to whether there is a realistic danger that Ordinance No. 17730 significantly compromises the recognized First Amendment rights of others. Therefore, I find that the defendants are entitled to judgment as a matter of law on the plaintiff's claim that Ordinance No. 17730 is unconstitutionally overbroad.

Next, the defendants claim that Ordinance No. 17730 is not vague. To refresh, an ordinance must "(1) be clear enough to provide a person of ordinary intelligence with notice of what conduct is prohibited, and (2) provide standards for those who enforce the prohibitions." Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998). (See supra Part III.A., H.) The plaintiff has not directed me to any particular language in the ordinance that he believes to be vague. It seems to me that the ordinance clearly identifies the prohibited conduct for those persons who are bound to comply with the ordinance and for law enforcement personnel charged with enforcing it. I therefore find that the defendants are entitled to summary judgment on the plaintiff's claim that Ordinance No. 17730 is vague.

The defendants next argue that the plaintiff has failed to plead properly a violation of the Fourteenth Amendment's equal protection guarantee. The defendants assert that the plaintiff is required to "allege and prove unlawful, purposeful discrimination," Batra v. Board of Regents of University of Nebraska, 79 F.3d 717, 722 (8th Cir. 1996), and that the plaintiff has failed to do so here. It seems to me, however, that construed quite liberally, the plaintiff's amended complaint alleges that the City of Lincoln, by passing Ordinance No. 17730, has purposefully treated women and men differently because the ordinance "specifically prohibits women from bearing [sic] their breast but does not prohibit men from bearing [sic] their breast." (Pl.'s Br. at 10.) For the purposes of this motion, I shall assume that Count IX states an equal protection claim.

In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court determined that "the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI [Virginia Military Institute] affords." United States v. Virginia, 518 U.S. 515, 519 (1996). The Court specified the review standard for cases involving challenges to gender-based classifications:

To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U.S., at 724. The State must show "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Ibid. (quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-224 (1977) (Stevens, J., concurring in judgment).

The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967). Physical differences between men and women, however, are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Ballard v. United States, 329 U.S. 187, 193 (1946).

"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," Califano v. Webster, 430 U.S. 313, 320 (1977) (per curiam), to "promot[e] equal employment opportunity," see California Fed. Sav. Loan Assn. v. Guerra, 479 U.S. 272, 289 (1987), to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, see Goesaert, 335 U.S., at 467, to create or perpetuate the legal, social, and economic inferiority of women.

United States v. Virginia, 518 U.S. 515, 532-34 (1996) (footnote omitted). The defendants seize upon the Court's comment regarding the "[p]hysical differences between men and women," id. at 533, and argue that the "heightened review standard" set forth in United States v. Virginia is not applicable in this case because the different treatment afforded to men and women under Ordinance 17730 is based upon a physical difference between the sexes. Specifically, the defendants claim that "[m]ales and females are not similarly situated with respect to their breasts." (Defs.' Br. at 62.) In support of this argument, the defendants refer me to a number of cases, all of which seem to pre-date United States v. Virginia, that hold that the physical differences between male and female breasts justify differential treatment in "public nudity" laws. See City of Seattle v. Buchanan, 584 P.2d 918, 921-22 (Wash. 1978) (en banc); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256-57 (5th Cir. 1995) (discussing plaintiff's claim that ordinance violated Equal Rights Amendment of the Texas Constitution); State v. Turner, 382 N.W.2d 252, 255-56 (Minn.Ct.App. 1986); Eckl v. Davis, 51 Cal.App.3d 831 (Cal.Ct.App. 1975); J B Social Club #1, Inc. v. City of Mobile, 966 F. Supp. 1131, 1139 (S.D.Ala. 1996). In addition, the defendants argue that even under the "heightened review standard" set forth in United States v. Virginia, courts have consistently upheld laws that prohibit the public exposure of female, but not male, breasts. See Buzzetti v. The City of New York, 140 F.3d 134, 141-42 (2nd Cir. 1998);Tolbert v, City of Memphis, Tennessee, 568 F. Supp. 1285, 1290 (W.D.Tenn. 1983); Dydyn v. Department of Liquor Control, 531 A.2d 170 (Conn.App.Ct. 1987); J B Social Club #1, Inc. v. City of Mobile, 966 F. Supp. 1131, 1139 (S.D.Ala. 1996); United States v. Biocic, 928 F.2d 112, 115-16 (4th Cir. 1991); State v. Vogt, 775 A.2d 551, 557-58 (N.J.Super.Ct. App. Div. 2001). The plaintiff has not responded to the defendant's arguments, except to state that there is no "legitimate purpose to this Ordinance other than to exercise some moral capacity," and that "the law should not be judgmental as to different cultures, mores, standards as established by different communities throughout the World." (Pl.'s Br. at 10.)

It seems to me that I need not determine whether the ordinance's prohibition of the public exposure of female, but not male, breasts is in fact a gender-based classification subject to the heightened standard of scrutiny described in United States v. Virginia. I shall assume that it is for the purposes of this motion, and I shall apply the standard set forth in United States v. Virginia. I find that the City of Lincoln's interests in preventing the "secondary adverse effects of public nudity including . . . prostitution, assaultive behavior, and other related criminal behavior," and protecting the "order and morality" and "health, safety, and well-being of the city and the persons residing therein," (Defs.' Index, filing 73, Ex. 16) are important. See Buzzetti v. The City of New York, 140 F.3d 134, 142 (2nd Cir. 1998); United States v. Biocic, 928 F.2d 112, 115 (4th Cir. 1991); State v. Vogt, 775 A.2d 551, 557-58 (N.J.Super.Ct. App. Div. 2001). I also find that the ordinance's requirement that the female nipple, but not the male nipple, be concealed by a fully opaque covering is substantially related to those objectives.See Buzzetti v. The City of New York, 140 F.3d 134, 142 (2nd Cir. 1998);Dydyn v. Department of Liquor Control, 531 A.2d 170, 175 (Conn.App.Ct. 1987); State v. Vogt, 775 A.2d 551, 557-58 (N.J.Super.Ct. App. Div. 2001). It seems to me too that the heightened standard of review described by the Court in United States v. Virginia is clearly not meant to make sex a proscribed classification in all cases, and that classifications based upon the enduring physical differences between men and women, such as the appearance and functions of their breasts, are meant to remain permissible. See United States v. Virginia, 518 U.S. 515, 533 (1996); Buzzetti v. The City of New York, 140 F.3d 134, 141-42 (2nd Cir. 1998); Dydyn v. Department of Liquor Control, 531 A.2d 170, 175 (Conn.App.Ct. 1987); United States v. Biocic, 928 F.2d 112, 115-16 (4th Cir. 1991); State v. Vogt, 775 A.2d 551, 557-58 (N.J.Super.Ct. A.D. 2001). Therefore, Ordinance 17730 does not violate the plaintiff's right to equal protection.

For the foregoing reasons, I conclude that the defendants are entitled to summary judgment on all of the claims set forth in Count IX of the plaintiff's amended complaint.

J. Count X

Count X of the plaintiff's complaint includes the following allegation:

That the plaintiff further alleges that Ordinance 9.16.240 as passed and currently in effect [sic] plaintiff's and his employees' right to equal protection under the [sic] as it treats the plaintiff differently than of [sic] Nebraskans and citizen [sic] of other states; that it treats the activities performed at his business differently than the treatment of film in Nebraska and in other states.

(Am. Compl., filing 37, ¶ 69.) The theory underlying this count is, according to the plaintiff, based upon Bush v. Gore, 531 U.S. 98 (2000):

It is clear that under that case that citizens of the Federal Government are entitled to the same immunities, enjoyments of life, liberty, and property of other citizens throughout the community. The affidavit of Mr. Ways clearly indicates that he has been in multiple states and has viewed multiple strip bars and the activity the he is encouraging and the business that he is running it [sic] typical of those business [sic] run throughout several states. There is absolutely no reason why Mr. Ways should not be allowed under Bush v. Gore to the same right to engage in this activity as a citizen from Indiana, Illinois, Minnesota, Kansa [sic], Iowa, South Dakota or any other establishment.

(Pl.'s Br. at 10-11 (citation omitted).) I agree with the defendants thatBush v. Gore does not support the plaintiff's theory. I have determined that Ordinance No. 17657 is not vague or overbroad, and that it does not violate the plaintiff's First Amendment rights. (See supra Part III.A, C.) It is undisputed that the enactment of the ordinance was within the City of Lincoln's powers. (See Am. Compl., filing 37, ¶¶ 12, 18-20.) Bush v. Gore does not suggest that a city's properly enacted an ordinance — one that has survived the plaintiff's constitutional challenges — is rendered unconstitutional by the mere fact that other cities have not chosen to exercise their authority to enact similar ordinances.

The plaintiff claims that he is entitled to judgment on Count X because the defendants have admitted the allegations contained in paragraphs 67-69. (See Pl.'s Br. at 4, 6.) It is true that the defendants' answer fails to specifically address paragraphs 67-69 of the amended complaint. (See Pl.'s Index, filing 138, Ex. 9, Answer to Amended Complaint.) However, the answer does state that the defendants "[d]eny that Plaintiff is entitled to any relief at law or in equity as alleged in the Complaint," and that they "[d]eny each and every other allegation contained in Plaintiff's Amended Complaint except those specifically admitted herein. . . ." (See id. at ¶¶ 50, 58.) Federal Rule of Civil Procedure 8(b) allows defendants to "generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits." Fed.R.Civ.P. 8(b). In this case, the defendants have included such a denial in paragraph 58 of their answer to the amended complaint. (See Pl.'s Index, filing 138, Ex. 9, Answer to Amended Complaint, ¶ 58.) Since the defendants have not expressly admitted the allegations set forth in paragraph 69 of the amended complaint, I find that they have been denied. I therefore reject the plaintiff's argument that the defendants have admitted the substantive allegations set forth in Count X, and I find that the defendants are entitled to summary judgment on this count.

IT IS ORDERED that the defendants' motion for summary judgment, filing 109, is granted.

IT IS FURTHER ORDERED that the following motions are denied as moot: Defendants' Motion in Limine (Shirley Carr Mason), filing 113; Defendants' Motion in Limine (Constance Chapple), filing 115; Defendants' Motion in Limine, or in the Alternative, Motion to Dismiss Causes Relating to Damages, filing 119; Defendants' Motion in Limine (J. Christopher Hain), filing 121; and Plaintiff's Motion in Limine, filing 123.

JUDGMENT

IT IS ORDERED that judgment shall be entered in favor of all the defendants on all claims.