United States District Court, N.D. Alabama, Western Division
MARSHALL W. GORDON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
Marshall W. Gordon (“Gordon”) filed this action
against the United States Federal Government (“ the
Government”), alleging violations of his civil rights
and failure of federal and state officials to perform their
legal duties. Before this Court is the Federal
Government's motion to dismiss. (Doc. 8.) For the reasons
stated below, the Government's motion to dismiss (doc. 8)
is due to be granted.
has filed a number of pro se actions against various
government entities and actors over the past few years. The
first, he filed in Alabama state court, claiming that former
Alabama governor Robert Bentley along with former Alabama
governor Bob Riley, various Alabama state court judges, and
Tuscaloosa police officers, violated his civil rights and
thus “must be reported” to FBI Director Mueller.
See Case No. 63-CV-13-000257. The case was removed
to this Court in December of 2015. (See Case No.
7:15-cv-02282-LSC.) Specifically, Gordon claimed that Bentley
and his “partners” undertook a concerted effort
to prevent Gordon from presenting evidence regarding former
Alabama governor Don Siegelman, by arresting and prosecuting
Gordon for various state law violations. After Director
Mueller was dismissed, Governor Bentley's motion to
dismiss was granted because Gordon's suit was barred by
the Eleventh Amendment. (See id., Doc. 25.)
filed another pro se action in February 2016 against
former Alabama governor Don 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). (See Case No. 7:16-cv-02070-RDP.)
Gordon asserted the defendants had violated constitutional
rights guaranteed to him by the Twenty-First Amendment.
(Id., Doc. 1.) Specifically, Gordon alleged
defendants bought and sold illegal marijuana within the court
system. He alleged police officers recruited “juvenile
delinquents and adult community probationers who can keep a
secret” to sell marijuana to “delinquents and
probationers” for defendants' personal gain.
(Id. at 10-11.) Plaintiff's action was dismissed
against Siegelman for failure to state a claim and his claim
against the Government was dismissed on account of
Gordon's failure to timely serve the United States as
required by Federal Rule of Civil Procedure 4(i)(1). (See
id., Doc. 13.)
initial filing in the instant action was filed in June
2017. (Doc. 1.) In it, Gordon claims the Government and
“its narcotic and drug agencies” cannot prohibit
marijuana without first repealing the Twenty-First Amendment
of the U.S. Constitution. (Doc. 1 at 3.) Specifically, Gordon
alleged that police officers, adults, and children are being
killed because of the Federal Government's
“sadistic voter prejudices” against the
Constitution, Plaintiffs, and other citizens. Id.
Gordon requests this Court make the Government “quit
arguing” with him, and award “his family's
property” in the amount of $86 million by placing
“an attachment . . . on the State of Alabama City
Tuscaloosa finances.” Id. Gordon claims
judgment should be granted in his favor because the Federal
Government cares “only about money, power, false
religion, ethics, and morals, ” and because of its
“illegal personal interference or uncalled for unlawful
intervention on consenting adults concerning matters of
prohibition . . . .” Id. While the case is
styled as being brought against more than one defendant and
Gordon includes in his initial filing a section entitled
“names” which include the President and Chief
Justice of the U.S., Alabama's U.S. Senators, U.S.
District Judge Mark Fuller and other various federal and
state officials, it is unclear from the pleadings precisely
whom he is lodging his complaint against.
Federal Government filed their 12(b)(6) Motion to dismiss on
September 8, 2017. (Doc. 8.) The Court then ordered Plaintiff
to show cause as to why the motion should not be granted.
(Doc. 10.) On October 10, 2017, Gordon filed a motion for
default judgment. (Doc. 13.) Because an incorrect address was
on file for Plaintiff, the Court mooted his motion for
default judgment and afforded Plaintiff ample time in which
to show cause. (Doc. 17.) On November 29th, 2017, Gordon
filed a notice with the Court. (Doc. 21.) This notice fails
to show cause and simply restates Gordon's belief that
this Court should enter judgment in his favor against the
Government in the amount of 86 million dollars.
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). To meet this standard, the complaint
must state enough facts to raise the right to relief
“above a speculative level.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). Pleadings based
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations
will not suffice. Id. at 555, 557. A party need not
specifically plead each element in his or her cause of
action, but the pleading must contain “enough
information regarding the material elements of a cause of
action to support recovery under some viable legal
theory.” Am. Fed'n of Labor & Cong. of
Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1186
(11th Cir. 2011). Ultimately, the Court must be able to draw
a reasonable inference from the facts that the other party is
liable. Reese v. Ellis, Painter, Ratterree & Adams,
LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). The Court
must construe pleadings broadly and resolve inferences in the
nonmoving party's favor. Levine v. World Fin. Network
Nat'l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006).
Court must liberally construe Gordon's complaint because
he submitted his complaint pro se. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, while a pro
se plaintiff will be given greater leniency,
“[t]his leniency . . . does not require or allow courts
to rewrite an otherwise deficient pleading in order to
sustain an action.” Thomas v. Pentagon Fed. Credit
Union, 393 Fed.Appx. 635, 637 (11th Cir. 2010).
survive a motion to dismiss, the plaintiff's complaint
must “state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570. To be
plausible, the claim for relief must contain “enough
fact[s] to raise a reasonable expectation that discovery will
reveal evidence” to support the claim. Id. at
556. If this Court decides that the facts pleaded by
plaintiff do not state a plausible claim, the complaint is
due to be dismissed. Id. at 570. To have facial
plausibility, the plaintiff's complaint must plead
“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).
district court has the authority to dismiss a claim where
“the factual allegations are . . . far-fetched or
baseless.” Cofield v. Ala. Public Service
Commission, 936 F.2d 512, 515 (11th Cir. 1991) (citing
Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
However “[d]istrict court[s] may dismiss a case for
frivolity only when the legal claim is indisputably
meritless, the facts are far-fetched or baseless, or
both.” Cofield, 936 F.2d at 515 (affirming
district court's dismissal of actions which
“allege[d] the fantastic”); see also Hagans
v. Lavine, 415 U.S. 528, 536-37 (1974) (“[F]ederal
courts are without power to entertain claims otherwise within
their jurisdiction if they are so attenuated and
unsubstantial as to be absolutely devoid of merit.”)
(citations and internal quotations omitted).
has failed to allege specific harm directly related to or
incurred because of alleged violations of constitutional
rights. Courts are not bound to accept legal conclusions
“couched as factual allegations, ” and
Gordon's complaint fails to state adequate factual
allegations to ...