United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler, United States District Judge.
the Court is Sheriff Mike Hale (“Sheriff Hale”)
and Attorney General Steve Marshall (“Attorney General
“Defendants”)'s Motion to Dismiss the Amended
Complaint or, in the Alternative, Motion for Summary
Judgment. (Doc. 19.) For the reasons explained herein,
Defendants' motion is due to be GRANTED in PART and
DENIED in PART.
Factual and Procedural Background
Fairfield Community Clean-Up Crew, Inc.
(“Community”) is an Alabama non-profit
corporation and charitable organization organized under the
Fairfield Municipal Bingo Ordinance No. 1024G. (Doc. 18
¶ 2.) Sheriff Hale is the Sheriff of Jefferson County
and Attorney General Marshall is the Attorney General for the
State of Alabama. (Doc. 18 ¶ 12; Doc. 19 ¶ 1.)
Defendants informed Community that it was in violation of
Alabama law because of its operation of illegal gambling
devices and slot machines and ordered Community to cease its
bingo operations. (Doc. 18 ¶ 19.) On February 24, 2017,
Defendants executed a search warrant on Community's bingo
facility and seized Community's property from that
location. (Doc. 18 ¶ 18.) Later that same day, Community
instituted this action against Defendants. (Doc. 1; Doc. 19
¶ 14, Ex. 2.)
Alabama Constitutional Amendments and Fairfield's
Ordinances Pertaining to Community's Claims
IV, § 65 of the Alabama Constitution generally prohibits
lotteries, including bingo, in the State of Alabama. See
Barber v. Cornerstone Cmty. Outreach, Inc., 42
So.3d 65, 78-79 (Ala. 2009). Section 65 provides:
The legislature shall have no power to authorize lotteries or
gift enterprises for any purposes, and shall pass laws to
prohibit the sale in this state of lottery or gift enterprise
tickets, or tickets in any scheme in the nature of a lottery;
and all acts, or parts of acts heretofore passed by the
legislature of this state, authorizing a lottery or
lotteries, and all acts amendatory thereof, or supplemental
thereto, are hereby avoided.
Ala. Const. of 1901, art. IV, § 65. Amendments to the
Alabama Constitution of 1901 allow bingo in certain counties
by creating exceptions to the general prohibition of
“lotteries” in § 65. One such amendment,
Amendment 386, allows bingo in Jefferson County. See
Chorba-Lee Scholarship Fund, Inc. v. Hale, 60 So.3d 279,
280 (Ala. 2010). Amendment 386, as amended by Amendment 600,
The operation of bingo games for prizes or money by nonprofit
organizations for charitable or educational purposes shall be
legal in Jefferson County, subject to the provisions of any
resolution or ordinance by the county governing body or the
governing bodies of the respective cities and towns, within
their respective jurisdictions. The said governing bodies
shall have the authority to promulgate rules and regulations
for the licensing and operation of bingo games, within their
respective jurisdictions . . .
Ala. Const. of 1901 amends. 386, 600.
to Amendments 386 and 600, the City of Fairfield enacted the
City of Fairfield Bingo Ordinance (the “Bingo
Ordinance”) establishing rules and licensing procedures
for the operation of bingo within the city. (See
Doc. 18 Ex. A.) The Bingo Ordinance defines
“bingo” and “bingo games” and
specifically refers to the use of electronic devices to play
To the extent that the foregoing elements are present in the
game of bingo, it can be played with different kinds of
equipment varying from one end of the spectrum, where
traditional cards displaying the playing grids are used with
tokens to cover the designated square on the grids, to the
technologically advanced end of the spectrum, whether
electronic devices perform the operation of the game using
computers or micro processors and interact with the human
players by means of an electronic console.
Fairfield, Ala., Ordinance No 1024G, § 2 (2011).
Community's Electronic Bingo Operations
obtained a license from the City of Fairfield and opened a
“bingo” establishment that included the use of
electronic bingo. (Doc. 18 ¶¶ 2, 15.) Community has
maintained that the operation of the bingo establishment,
including electronic bingo, was legal under its
interpretation of the above-quoted constitutional amendments
and the Bingo Ordinance. (Doc. 18 ¶ 15.)
February 23, 2017, a Jefferson County District Court Judge
issued a search warrant for the facility where Community
conducted its bingo operations. (Doc. 18 ¶ 17.) The
warrant further commanded the seizure of (1) any U.S.
currency or (2) evidence of violation of Alabama
Constitutional Amendments 386 and 600 and Ala. Code §
13a-12-20 et seq. relating to illegal gambling.
(Doc. 18 ¶ 17; Doc. 19 Ex. 1.) The following day,
February 24, 2017, the Jefferson County Sheriff's Office
executed a search warrant on the bingo facility and seized
Community's electronic bingo machines as well as other
property. (Doc. 19 Ex. 2.) Also on February 24, 2017, but
later in the day, Community filed this action.
(Compare Doc. 1 at 1 (filing time of 3:12 PM)
with Doc. 19 Ex. 2 (Search Warrant Worksheet listing
“time entered” at 8:30 AM).) While Community
requested a Temporary Restraining Order (“TRO”)
on February 24, 2017, the parties agreed the motion was moot
when filed given the execution of the search warrant earlier
that day. (See Doc. 6.)
the seizure of Community's bingo equipment, the District
Attorney for Jefferson County filed a civil petition styled
State of Alabama ex rel. Washington v.
Harris, CV-2017-900185, on March 6, 2017 in the Circuit
Court of Jefferson County. The district attorney sought the
condemnation and forfeiture of the alleged illegal gambling
devices that were seized pursuant to the February 24, 2017
search of Community's bingo facility. (Doc. 19 Ex. 3.)
The petition specifically asked the court to find that the
devices seized during execution of the warrant were in
violation of Alabama law. (Id.) At the time of this
Memorandum of Opinion, the state-court civil forfeiture
action is still pending.
Standard of Review
raise sovereign immunity and ripeness challenges. To the
extent the Court has jurisdiction, Defendants argue it should
abstain from hearing Community's claims under the
Younger abstention doctrine. (Doc. 19 at 2.) Both the
sovereign immunity and ripeness defenses pose jurisdictional
questions, so in that respect this motion is governed by
Federal Rule of Civil Procedure 12(b)(1). See Digital
Props. v. City of Plantation, 121 F.3d 586, 591 (11th
Cir.1997) (ripeness); Bennett v. United States, 102
F.3d 486, 488 n.1 (11th Cir. 1996) (sovereign immunity). The
burden of proof on a Rule 12(b)(1) motion is on the party
averring jurisdiction. Thomson v. Gaskill, 315 U.S.
442, 446 (1942).
“facial attack” on the complaint asks the Court
to determine whether the plaintiff has alleged a basis for
subject matter jurisdiction and takes the allegations in the
complaint as true for the purposes of the motion.
Stalley ex rel. U.S. v. Orlando Reg'l
Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir.
2008). On the other hand, a “factual attack”
challenges the existence of subject matter jurisdiction using
material extrinsic to the pleadings, such as affidavits or
testimony. Id. at 1233. “Since such a motion
implicates the fundamental question of a trial court's
jurisdiction, a ‘trial court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case' without presuming the truthfulness of
the plaintiff's allegations.” Makro Capital of
Am., Inc. v. UBS AG, 543 F.3d 1254, 1258 (11th Cir.
2008) (quoting Morrison v. Amway Corp., 323 F.3d
920, 925(11th Cir. 2003)). Here, Defendants rely on a number
of exhibits submitted with their motion to dismiss, the Court
thus construes Defendants' motion as a “factual
claims for relief implicate the limits of the Court's
subject matter jurisdiction under the Eleventh Amendment and
ripeness doctrine. After determining it has subject matter
jurisdiction over some of these claims, the Court then finds
that it should abstain from hearing Community's remaining
claims under the Younger doctrine.
Eleventh Amendment Immunity
Eleventh Amendment generally grants state officials sued in
their official capacities immunity from suits brought by
private citizens. See U.S. Const. amend. XI; Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101
(1984). States can waive their Eleventh Amendment immunity.
Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 670 (1999). Alabama has not
waived its sovereign immunity. See id.; see
also Ala. Const. of 1901, art. I, § 14
(“[T]he State of Alabama shall never be made a
defendant in any court of law or equity.”). The
Eleventh Circuit has held that the Attorney General and
County Sheriffs of Alabama are state officials protected from
suit under the Eleventh Amendment. Melton v. Abston,
841 F.3d 1207, 1234 (11th Cir. 2016) (Eleventh Amendment
immunity applies to Alabama Sheriffs); Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1336-40 (11th
Cir. 1999) (discussing Eleventh Amendment immunity's
application to suits against Alabama Attorney General).
can also abrogate Eleventh Amendment immunity in certain
situations. Fla. Prepaid, 527 U.S. at 670.
“Congress can abrogate [E]leventh [A]mendment immunity
without the state's consent when it acts pursuant to the
enforcement provisions of section 5 of the fourteenth
amendment.” Carr v. City of Florence, 916 F.2d
1521, 1524 (11th Cir. 1990) (citing Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 238 (1985)). While
Congress has the power to do so, it has never ...