United States District Court, N.D. Alabama, Western Division
MARSHALL W. GORDON, Plaintiff,
DON SIEGELMAN, et al., Defendants.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
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.
Factual Allegations and Procedural History
February 2016, Plaintiff 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.).
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. (Id. at 10).
Thereafter, Plaintiff submitted a complaint to the Federal
Bureau of Investigation (“FBI”) regarding
purchases of “illegal marijuana.” (Id.).
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. (Id. at 10-11).
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
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. (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).
Standard of Review
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
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.
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.
Plaintiff Cannot Maintain an Official-Capacity § 1983