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Gordon v. Siegelman

United States District Court, N.D. Alabama, Western Division

June 22, 2017

MARSHALL W. GORDON, Plaintiff,
v.
DON SIEGELMAN, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This case is before the court on Defendant Don Siegelman's Motion to Dismiss (Doc. # 6) and the court's Show Cause Order (Doc. # 11). Plaintiff has responded to the motion to dismiss and the show cause order. (Docs. # 10, 12). After careful review, and for the reasons explained below, the court concludes that (a) the motion to dismiss is due to be granted, and (b) the claim against Defendant United States Federal Government (“Federal Government”) is due to be dismissed for untimely service.

         I. Factual Allegations and Procedural History

         In February 2016, Plaintiff[1] filed this pro se Complaint against Defendant Siegelman, a former governor for the state of Alabama, and the Federal Government. (Doc. # 1). Plaintiff asserts that he is suing Siegelman under 42 U.S.C. § 1983 and the Federal Government under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Id. at 4). Plaintiff alleges that Defendants violated his constitutional rights granted by the 21st Amendment. (Id.).

         Plaintiff accuses Defendants of “buying and selling illegal marijuana through [the] court system.” (Id. at 5). He also alleges that the state of Alabama and other state entities are retaliating against him for complaints made to the federal government during President George W. Bush's administration. (Id. at 9). According to Plaintiff, his parents sued the state of Alabama, the Alabama Board of Education, and the Tuscaloosa City Board of Education to enforce Alabama's compulsory education laws. (See Id. at 5, 8-9). At some unspecified time, the state of Alabama, the Alabama Board of Education, and the Tuscaloosa City Board of Education filed waivers related to the case with the United States Supreme Court.[2] (Id. at 10). Thereafter, Plaintiff submitted a complaint to the Federal Bureau of Investigation (“FBI”) regarding purchases of “illegal marijuana.” (Id.).

         Plaintiff claims that unspecified police officers recruit “juvenile delinquents and adult community probationers who can keep a secret” to find individuals who will purchase marijuana. (Id.). Then, according to Plaintiff, state officials sell marijuana to “delinquents and probationers” for their personal gain.[3] (Id. at 10-11).

         In June 2017, the court notified Plaintiff that he had failed to perfect service on the Federal Government because he had not delivered a copy of the summons and complaint to the United States Attorney for the Northern District of Alabama. (Doc. # 11). The court instructed Plaintiff to show cause why the claims against the Federal Government should not be dismissed. (Id.). Plaintiff has responded that he did not send a summons and complaint to the United States Attorney for the Northern District of Alabama because the United States Attorney's Office told him that “they only take cases or filings from the FBI.” (Doc. # 12 at 5). Plaintiff has claimed that the Federal Government should return $86, 000, 000 in property to Plaintiff and his family “and bring legal action themselves and serve the [United States Attorney] for the Northern [D]istrict of Alabama.” (Id.).

         The court notes that, in 2015, Plaintiff filed a suit against then-Governor of Alabama Robert Bentley and Robert Mueller, a former director for the FBI.[4] (See Case No. 7:15-cv-2282-LSC). This court dismissed Plaintiff's claims against Mueller for failure to state a claim. (See id., Doc. # 10 at 6). Later, it dismissed Plaintiff's claims against Bentley because he was entitled to Eleventh Amendment immunity in his official capacity. (Id., Doc. # 25 at 4-5).

         II. Standard of Review

         The Federal Rules of Civil Procedure require that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). However, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). Moreover, the court must liberally construe Plaintiff's complaint because he submitted the complaint pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he plausibility standard is not akin to a ‘probability requirement, '” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Id. at 570.

         III. Analysis

         Without addressing the merits of Plaintiff's allegations, Defendant Siegelman's motion to dismiss and a review of Plaintiff's complaint present three issues that can be adjudicated at the Rule 12(b)(6) stage: (1) whether Plaintiff can sue Defendant Siegelman under § 1983 in an official capacity; (2) whether Plaintiff can sue the Federal Government under Bivens; and (3) whether Plaintiff has timely served the Federal Government.

         A. Plaintiff Cannot Maintain an Official-Capacity ยง 1983 ...


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