Case 3:14-cv-03126-TLB Document 19

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IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
AMERICAN HUMAN IST ASSOCIATION
and DESSA BLACKTHORN
VS.

PLAINTIFFS

NO. 14-CV-3126-TLB

BAXTER COUNTY, ARKANSAS, and

MICKEY PENDERGRASS, BAXTER
COUNTY JUDGE, IN HIS OFFICIAL
AND INDIVIDUAL CAPACITIES

DEFENDANTS

BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION
The Plaintiffs, Dessa Blackthorn and the American Humanist Association (AHA), filed
their Complaint in this case on December 23, 2014, alleging, under 42 U.S.C. 1983, that the
Defendants violated their constitutional rights by virtue of their alleged display of a nativity
scene/creche on the lawn of the county courthouse. Doc. # 1. For the reasons set forth herein, the
Defendants are entitled to qualified immunity and summary judgment as a matter of law..
II. ARGUMENT
The Plaintiffs allege that the Defendants violated their constitutional rights by virtue of their
alleged display of a nativity scene/creche on the lawn of the county courthouse. See Doc. # 1. As
discussed herein, however, (1) the Plaintiffs lack standing to bring this action since they have
suffered no injury; (2) the Plaintiffs cannot establish state action because the subject Christmas
display was owned and erected by private actors on privately leased land; (3) the Plaintiffs claim
is moot because they can offer no proof to show that the same display will be erected in the future;
(4) the Plaintiffs cannot, in any event, establish a violation of the Establishment Clause; and (5) the
Plaintiffs cannot establish the violation of any clearly established law by County Judge Mickey
Pendergrass. As such, the Defendants are entitled to qualified immunity and summary judgment as
a matter of law.
Rule 56 of the Federal Rules of Civil Procedure states that "the judgment sought shall be

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rendered forthwith if...[it is] show[n] that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."

Once a motion for summary

judgment is made by the Defendants, the burden shifts to the Plaintiffs to offer "sufficient probative
evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture,
or fantasy." Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (quoting Barnes v.
Arden Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985). "The mere existence of a factual dispute
is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative
under prevailing law." Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)(emphasis added).
Moreover, if the Plaintiff fails to demonstrate the existence of a genuine issue of material fact by
offering significant probative evidence, the Defendant is entitled to judgment in his favor as a matter
of law. Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (8th Cir. 1994). The Plaintiffs
beliefs are of no effect and do not create a genuine issue of material fact that precludes summary
judgment. Marler v. Mo. Bd. of Optometry, 102 F.3d 1453, 1457 (8th Cir. 1996). A plaintiff must
establish a clear violation of a constitutional right to prevail upon a section 1983 claim. McMillian
v. Schweiker, 697 F.2d 213, 215 (1983).
A.

No Standing
The Plaintiffs in this case lack standing as a matter of law. Although the requirements of

standing are actually quite low in cases of this sort, the Plaintiffs fail to satisfy those requirements.
This is true because, in reality, the Plaintiffs are avowedly attempting to vindicate the constitutional
rights of third parties/non-parties. This attempts fails as a matter of law, however, and the
Defendants are entitled to summary judgment.
To have standing to challenge a state action, the plaintiff(s) must show (1) that she has
suffered an injury in fact, (2) that there is a causal connection between the injury and the conduct
complained of, and (3) that the injury will be redressed by a favorable decision. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). Standing is a threshold jurisdictional question that must be
established before the merits of an Establishment Clause case may be considered by a U.S. District
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Court. See Tarsney v. O'Keefe, 225 F.3d 929, 934 (8th Cir. 2000)("Standing is the threshold
question in every federal case. . . .") (internal quotation and citation omitted). Parties invoking
federal jurisdiction, here Blackthorn and the AHA, have the burden of establishing standing.
Schanou v. Lancaster County Sch. Dist., 62 F.3d 1040, 1045 (8th Cir. 1995). The standing doctrine
incorporates both constitutional requirements and prudential considerations, and serves to limit
federal jurisdiction to "cases" and "controversies" as required by Article III of the U.S. Constitution.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992).
The constitutional prerequisite has been distilled into the following test:
First, the plaintiff must have suffered an "injury in fact" - an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural
or hypothetical. Second, there must be a causal connection between the injury and the
conduct complained of - the injury has to be fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before the
court. Third, it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Id. at 560-61 (internal quotations and citations omitted).
A plaintiff may be denied standing, even if he meets the Article III standing requirements,
if he runs afoul of certain judicially constructed prudential limits on standing. Valley Forge Christian
College v. Americans United for Separate of Church & State, 454 U.S.464, 474-75 (1982). These
prudential concerns include limiting standing to cases where the plaintiff asserts his own rights and
interests, not those of third parties, Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct.
2197 (1975), and where the complaint falls within "the zone of interests to be protected or regulated
by the statute or constitutional guarantee in question." Ass'n of Data Processing Serv. Orgs. v. Camp,
397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). The final prudential limitation on
standing teaches that a plaintiff has no standing to assert "abstract questions of wide public
significance which amount to generalized grievances, pervasively shared and most appropriately
addressed in the representative branches." Valley Forge, 454 U.S. at 475 (quotation marks omitted).
At the core of jurisdictional standing question is the question of injury. The Supreme Court
has held that "the psychological consequence presumably produced by observation of conduct with
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which one disagrees" is not an injury sufficient to confer standing. Valley Forge, 454 U.S. at 485-86.
The Supreme Court has also held that, in order to establish standing, a Plaintiff must show that she
has something more personal to gain from victory in the lawsuit than the mere ideological or
psychological satisfaction of upholding the Constitution." Warth, 422 U.S. at 498-99. In Red River
Freethinkers v. City of Fargo, 679 F.3d 1015 (8th Cir. 2012), Eighth Circuit Court of Appeals
addressed the issue of the level of injury required to establish standing in display cases like this one.
In the Red River case, the City of Fargo adopted an ordinance that countermanded the city
commissions earlier decision to remove a Ten Commandments monument from municipal property.
In that case, the court found that direct and unwelcome personal contact with the monument was
required to establish standing. Id.
In this case, Plaintiff Blackthorn made allegations of purported injury in her Complaint,
where she alleged that she was offended by the display.

She specifically repudiated those

allegations in her sworn testimony at deposition, however. See Ex. 1, Plaintiff Blackthorns
deposition, pp. 24-26. Plaintiff Blackthorn testified that she is a Christian sympathizer who has
nothing against Christians. Id. In fact, Plaintiff Blackthorn testified that, during the holiday
season, she displays a nativity scene in her house, which she thinks is really cute. Id. at 45-46.
She even went so far as to testify that she does not think that the Defendants should have to take
down the subject Christmas display. Id. at 36. In light of this clear and candid testimony, the
undisputed fact is that Plaintiff Blackthorn did not suffer an injury sufficient to satisfy standing
requirements.1 To the contrary, Plaintiff Blackthorn is admittedly attempting to vindicate the
constitutional rights of non-parties. Id. at 8 (Plaintiffs only objection is the exclusion of other
people being able to display their ... holiday beliefs alongside the Nativity display). This attempt
fails as a matter of law because a civil plaintiff lacks standing to raise the alleged violations of the

Lack of an injury is a threshold requirement and failure to prove injury sours all three
components of the standing analysis. In other words, the Plaintiff cannot trace her injury to the
Defendants conduct (causation) and cannot prove that removal of the display would remediate
her injury (remedy) where no injury occurred.
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constitutional rights of others. See Warth, 422 U.S. at 499.

With respect to the AHA, the Eighth Circuits opinion in the Red River case can properly be
cited for the proposition that an Associations standing in a display case is derivative of and
redundant to its members standing. Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1022
(8th Cir. 2012). As such, the American Humanist Associations standing in this case rises and falls
with Plaintiff Blackthorns standing. Since, as discussed above, Plaintiff Blackthorn lacks standing,
so does the Association. As such, the Defendants are entitled to summary judgment as a matter of
law (1) because the Plaintiffs lack standing as a matter of law and (2) because the Court therefore
lacks jurisdiction. As such, the Defendants are entitled to summary judgment as a matter of law.
B.

No State Action
The Plaintiffs bring this case under 42 U.S.C., however, the contested display was owned and

erected by private parties on property they had leased. Notably, those private parties have not been
sued in this case. Since there is no proof of state action, the Defendants are entitled to summary
judgment as a matter of law.
Section 1983 creates a cause of action for litigating alleged civil rights violations. CrumpleyPatterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004). To state a claim for a 1983
violation, a plaintiff (1) must allege the violation of a right secured by the Constitution and laws of
the United States, and (2) must show that the alleged deprivation was committed by a person acting
under color of state law. Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997). "[U]nder color of state
law" imposes the same requirements as the "state action" requirement of the Fourteenth Amendment.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). For a
private party to be considered a state actor, it is not enough to show that the private actor performed
a public function. Durante v. Fairlane Town Ctr., 201 F. App'x 338, 341 (6th Cir. 2006). Instead,
it must be shown that the private actor performed a public function "which has traditionally and
exclusively been reserved to the State." Id. This test is not easy to satisfy. Id.
In this case, the Plaintiffs have no evidence to dispute the proof offered by the Defendants
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that the challenged display is privately owned and was erected on property leased to a private entity.
Additionally, undisputed evidence establishes that sign were in place as part of the display that
clearly stated, in pertinent part: This displayed is owned and erected by private citizens of Baxter
County. Since the Plaintiffs cannot prove state action, their constitutional claims fail as a matter of
law. The Defendants are entitled to summary judgment.
C.

Plaintiffs Claim(s) Moot

Mootness requires that a concrete controversy must exist at all stages of review, not merely

when the complaint is filed. DeFunis v. Odegaard, 416 U.S. 312, 318 (1974). The Nativity Scene
is not currently on display and thus any emotional injury that the plaintiff allegedly suffered is not
occurring presently making her complaint moot.
It is anticipated that the Plaintiffs will raise an exception to mootness arguing that the
Nativity Scene is capable of repetition yet evading review and thus an injury can be inflicted again
if the Nativity Scene is erected next holiday season. The exception applies where (1) the challenged
action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there
is a reasonable expectation that the same complaining party will be subject to the same action again.
Fed. Election Commn. v. Wisconsin Right To Life, Inc., 551 U.S. 449, 462 (2007).
In this case, there is no reasonable expectation of recurrence. Quite to the contrary, the
Plaintiff Blackthorn has candidly testified that she does not know if or what, if any, or manner of
display is going to be placed on the courthouse lawn this December (2015). Ex. 1, Plaintiff
Blackthorns deposition, p. 39 & 41-42. Additionally, attorney Rick Spencer, who owns and erects
the display each year, has plans to change the display, including adding a Frosty the Snowman figure
and perhaps increasing the size of the Christmas tree and/or reindeer & sleigh figure. Ex. 2, Spencer
Deposition, pp.25-26 & 31.
In the end, the display is not currently in place and there is no proof to show that any display
will be the same in 2015 as it was in 2014. As such, the Plaintiffs claims are moot as a matter of
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law and should be dismissed.

D.

No Violation of Establishment Clause

Even if (1 )the Plaintiffs had standing, (2) the subject display constituted state action, and (3)

the claim was not moot, all of which the Defendants dispute, see supra, the Plaintiffs claim would
still fail as a matter of law because the subject display does not violate the Establishment Clause.
Governmental action that touches upon religion is permissible under the Establishment
Clause of the First Amendment if it has "a secular purpose," does not "have the primary or principal
effect of advancing religion," and does not "foster an excessive entanglement with religion." Good
News/Good Sports Club v. School Dist. of Ladue, 28 F.3d 1501, 1508 (8th Cir. 1994). In
implementing these tests, the Supreme Court has "'paid particularly close attention to whether the
challenged governmental practice either has the purpose or effect of "endorsing" religion.'" Stark v.
Independent Sch. Dist., No. 640, 123 F.3d 1068, 1077 (8th Cir. 1997) (quoting County of Allegheny
v. ACLU, 492 U.S. 573, 592, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989)); Bauchman v. West High
School, 132 F.3d 542, 551-52 (10th Cir. 1997) (endorsement test now widely accepted as controlling
analytic framework for Establishment Clause cases), cert. denied, 141 L. Ed. 2d 738, 118 S. Ct. 2370
(1998).
The line between permissible and impermissible relationships between government and
religion is "blurred, indistinct, and variable . . . depending on all the circumstances of a particular
relationship." Lynch v. Donnelly, 465 U.S. 668, 678-79, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)
(quoting Lemon v. Kurtzman, 403 U.S. 602, 614, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971)). Under
the Establishment Clause, government action may not "appear[] to take a position on questions of
religious belief or . . . 'make adherence to a religion relevant in any way to a person's standing in the
political community.'" Allegheny County, 492 U.S. at 593-94 (quoting Lynch v. Donnelly, 465 U.S.
668, 687, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)). Endorsement is prohibited because it "sends
a message to nonadherents that they are outsiders, not full members of the political community, and
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an accompanying message to adherents that they are insiders, favored members of the political
community." Lynch, 465 U.S. at 688 (O'Connor, J., concurring).
The U.S. Supreme Court has considered Christmas nativity displays on two occasions. This
case is analytically identical to and controlled by the first such case, Lynch v. Donnelly, 465 U.S.
668, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984)(Lynch). In Lynch, the Supreme Court upheld the
constitutionality of a city's outdoor Christmas display of a nativity scene, even though it
acknowledged the religious nature of the display. Id. at 679. The Lynch Court allowed the display
based on the context, acknowledging the traditional and historical origins of the Christmas holiday
and noting other, more secular elements of the display. Id. at 681. Many of those corollary elements
(Christmas tree, Santa Claus, etc.) are repeated in this case. In this case, like in Lynch, the subject
display (1) was outdoors, (2) commemorated the traditional and historical underpinnings of a holiday
officially recognized and commemorated annually by the governments of the United States and
Arkansas, and (3) contained additional, purely secular elements (many of the same as in Lynch), in
addition to other similarities.
The Supreme Courts other nativity case, the 1989 decision in County of Allegheny v. ACLU,
492 U.S. 573, 106 L.Ed. 472, 109 S.Ct. 3086 (1989) (Allegheny County) which found an indoor,
and stand-alone, nativity scene violated the Establishment Clause, is inapposite and/or supports the
Defendants arguments. Aside from the obvious indoor/outdoor distinction, which is significant2,
the creche found unconstitutional in Allegheny County was substantively different from the displays
in Lynch and in this case because it stood entirely on its own, unaccompanied by any other/secular
components. The importance of this distinction cannot be overstated, particularly in light of the
Supreme Courts other display decision in the Allegheny County case. In addition and in contrast
to its finding that the stand-alone indoor nativity scene was unconstitutional, the Allegheny County

An indoor display is obviously harder for those doing business with the government to
ignore or avoid.
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Court found a separate display of a menorah constitutional, largely or entirely3 because it was
outdoors and because it was accompanied, as in this case, by a Christmas tree and a sign saluting
liberty. Id. at 613-614.
In addition to the Supreme Court, the Eighth Circuit Court of Appeals has also analyzed a
municipal display of a nativity scene. In ACLU v. City of Florissant, 186 F.3d 1095, 1098 (8th Cir.
1999) (Florissant), the Eighth Circuit reversed a decision by the U.S. District Court for the Eastern
District of Missouri and held that the Citys display of a nativity scene on public property did not
violate the establishment clause. The Court based its analysis on the Supreme Courts holding in
Allegheny County and stated that [i]f the Allegheny Courts analysis on the first holiday display [the
indoor nativity scene] was not enough to convince us, the result concerning the second display is.
Id. at 1098. The Court then went on to compare the nativity scene it was analyzing to the menorah
in Allegheny County and, ultimately, held that the [City of] Florissant display [w]as no greater an
endorsement of religion than the menorah display in Allegheny and, thus, that there was no
violation of the Establishment Clause.
In the end, the Christmas display at issue in this case is much closer to the similar displays
in the Lynch, Allegheny County (the menorah), and Florissant cases, all of which involved outdoor
displays that were accompanied by other secular components. Neither the Supreme Court nor the
Eighth Circuit has ever found such a nativity display unconstitutional. The lone nativity display
found violative of the Establishment clause by either of these Courts was the stand-alone indoor
nativity display in Allegheny County. In the fact-intensive analysis required in these cases, that
display is simply too dissimilar to dictate a similar finding here.
For these reasons, even if Court finds that (1 )the Plaintiffs had standing, (2) the subject

The Eighth Circuit Court of Appeals has stated that, in Allegheny County, a majority of
the Supreme Court held that the menorah did not violate the Establishment Clause, but that the
holding was made without a unified analysis. ACLU v. City of Florissant, 186 F.3d 1095,
1098 (8th Cir. 1999).
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display constituted state action, and (3) the claim was not moot, all of which the Defendants dispute,
see supra, the Defendants are still entitled to summary judgment as a matter of law because the
subject display does not violate the Establishment Clause.
E.

Qualified Immunity
In addition to Baxter County, the Plaintiffs have also sued County Judge Mickey Pendergrass,

in his individual capacity. For the reasons set forth below, Judge Pendergrass is entitled to qualified
immunity as a matter of law.
The doctrine of qualified immunity protects government officials from "liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed. 396 (1982). A court must determine whether the defendant violated a
constitutional right and, if so, whether that right was clearly established. Pearson v. Callahan, 129
S. Ct. 808, 816, 818, 172 L. Ed. 2d 565 (2009). To determine whether a particular right was clearly
established, it must be viewed in a particularized, relevant sense: "The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right." Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). "The
relevant, dispositive inquiry in determining whether a right is clearly established is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted."
Saucier, 533 U.S. at 202. "Whether a given set of facts entitles the official to summary judgment on
qualified immunity grounds is a question of law." Greiner v. City of Champlin, 27 F.3d 1346, 1352
(8th Cir. 1994).
In this case, the Plaintiffs allege that Baxter County Judge Mickey Pendergrass violated the
Establishment Clause of the Constitution by displaying a nativity scene on the courthouse lawn.
Even if the Court ultimately finds in the Plaintiffs favor on this question, however, Defendant
Pendergrass is entitled to qualified immunity. That is because qualified immunity should be granted
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where a public official does not transgress a clearly established line in the law. With respect to the
interrelationship between government and religion, however, the Supreme Court has repeatedly
observed that the line between permissible and prohibited relationships is "blurred, indistinct, and
variable . . . depending on all the circumstances of a particular relationship." Lynch v. Donnelly, 465
U.S. 668, 678-79, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (quoting Lemon v. Kurtzman, 403 U.S.
602, 614, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971)). Here, the County did not own or erect the
subject display, which was displayed outdoors and in conjunction with a number of accompanying
secular elements. Furthermore, Judge Pendergrass did not initiate the display; to the contrary, he
merely allowed a display to continue that had been annually erected for 40 years, without legal
challenge. There is simply nothing about the display or the attendant facts that would have notified
a reasonable official that the display clearly violated the law. As such, Defendants Pendergrass is
entitled to qualified immunity as a matter of law.
III. CONCLUSION
For the reasons set forth herein, the Defendants respectfully request that Plaintiffs Complaint
be dismissed and they be granted summary judgment and qualified immunity as a matter of law.

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Respectfully submitted,
Mickey Pendergrass,in his official and personal
capacities, and Baxter County Arkansas,
Defendants
RAINWATER, HOLT & SEXTON, P.A.
P.O. Box 17250
6315 Ranch Drive
Little Rock, Arkansas 72222-7250
Telephone (501) 868-2500
Telefax (501) 868-2505
Email: owens@rainfirm.com
By:

/s/Jason E. Owens
Michael R. Rainwater, #79234
Jason E. Owens, #2003003

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CERTIFICATE OF SERVICE

I hereby certify that on the 10th day of July, 2015, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which will provide this filing to the following
user(s):
J.G. Gerry Schulze

/s/ Jason E. Owens

Jason E. Owens
Attorney for Defendants
RAINWATER, HOLT & SEXTON, P.A.
P.O. Box 17250
6315 Ranch Drive
Little Rock, Arkansas 72222-7250
Telephone (501) 868-2500

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