Ford et al v. Strange et al
MEMORANDUM OPINION AND ORDER directing that the Plaintiffs' Motion for Leave to File Amended Complaint (Doc. # 39 ) is DENIED, as further set out. Signed by Chief Judge William Keith Watkins on 12/23/13. (scn, ) (Main Document 47 replaced on 12/23/2013 to attach correct order) (scn, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
JOHNNY FORD, et al.,
individually and in his official
capacity as Attorney General
for the State of Alabama, et al.,
) CASE NO. 2:13-CV-214-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Motion for Leave to File Amended Complaint.
(Doc. # 39.) Defendants filed briefs in opposition to the motion (Docs. # 41, 42), and
Plaintiffs filed a reply brief (Doc. # 45). The motion is due to be denied on the ground
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely
give leave when justice so requires.” The court need not permit an amendment,
however, “where amendment would be futile.” Corsello v. Lincare, Inc., 428 F.3d
1008, 1014 (11th Cir. 2005). A proposed amendment to the complaint “is futile when
the complaint as amended would still be properly dismissed.” Cockrell v. Sparks, 510
F.3d 1307, 1310 (11th Cir. 2007).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court takes the complaint’s allegations as true and “construe[s]
them in the light most favorable to” the plaintiff. Resnick v. AvMed, Inc., 693 F.3d
1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556). However, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Id.
The original Complaint’s claims did not survive scrutiny under Federal Rules
of Civil Procedure 12(b)(1) and (b)(6) for the reasons stated in a separate
Memorandum Opinion and Order also entered today. That opinion lays out the
background of this case and will not be repeated here except to the extent necessary.
Briefly, in 2003, the majority of voters in Macon County voted in favor of a
local constitutional amendment for the legalization of charitable bingo games in their
county, which became Amendment No. 744 to the Alabama Constitution. Promptly
thereafter, VictoryLand opened an electronic bingo facility in Macon County called
Quincy’s 777 Casino.1 Plaintiffs allege that beginning in 2010, Defendants engaged
in a series of impermissible actions – i.e., raided VictoryLand and seized all of its
electronic bingo machines under the guise that they were slot machines, and usurped
the Macon County sheriff’s authority vested in him by Amendment No. 744 to
regulate charitable bingo in his county – with the goal of shutting down VictoryLand’s
electronic bingo facility. In the original Complaint, Plaintiffs alleged that those
actions, which ultimately were successful in achieving Defendants’ goal in 2013,
negated Plaintiffs’ votes cast nearly ten years earlier in favor of Amendment No. 744,
required preclearance under § 5, and racially discriminated against AfricanAmericans’ voting rights, in violation of §§ 2 and 5 of the Voting Rights Act and the
Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution.
Defendants moved for dismissal of the claims in the Complaint, and those claims
collapsed under Rule 12(b)(1) and Rule 12(b)(6) review. (See Doc. # 46 (Mem. Op.
& Order granting Defendants’ motions to dismiss).)
During the pendency of Defendants’ motions to dismiss the Complaint,
Plaintiffs moved to amend the Complaint to increase the number of Plaintiffs from six
to fourteen and to add three claims. Plaintiffs want eight additional parties to join
VictoryLand is not a party to this lawsuit.
their side, namely, Macon County Sheriff David Warren, the Macon County
Commission, the City of Tuskegee, the Utilities Board of the City of Tuskegee, the
Macon County Water Authority, the Tuskegee Repertory Theatre, the Macon County
Board of Education, and the Macon County Racing Commission. The proposed
Amended Complaint also omits Count 1, which is the § 5 claim previously dismissed
as wholly insubstantial and completely without merit (Doc. # 35),2 and renumbers
Counts 2, 3, and 4 as Counts 1, 2, and 3, respectively.
Plaintiffs also propose to add Counts 4, 5, and 6, all of which are titled, “Denial
of Due Process of Law.” The new proposed Count 4 alleges that Defendants denied
Plaintiffs, as well as all other African-American citizens who “supported” Amendment
No. 744, “their constitutional right to vote without due process of law” and to “equal
protection as guaranteed by the First, Fifth, Thirteenth, Fourteenth, and Fifteenth
Amendments to the United States Constitution.” (Proposed Am. Compl. ¶ 171.) They
bring Count 4 pursuant to 42 U.S.C. §§ 1981 and 1983. In particular, Plaintiffs allege
that Defendants intentionally nullified their votes in favor of Amendment No. 744,
their votes for their then-representative Ford who sponsored the bill that eventually
became Amendment No. 744, and their votes for Sheriff Warren. (Proposed Am.
It is presumed that the reference to violations of § 5 in paragraph 2 of the proposed
Amended Complaint was inadvertent. In any event, Plaintiffs do not bring a count for a
violation of § 5, and they present no argument to revive such a claim.
Compl. ¶ 171a–d.) Plaintiffs further allege that the shutdown of VictoryLand denied
Plaintiffs and all Macon County citizens who voted in favor of Amendment No. 744
“economic power to use the vote in order to obtain economic benefits.” (Proposed
Am. Compl. ¶ 171 f.)
The new proposed Count 5 alleges a racially motivated conspiracy among
Defendants to deny Plaintiffs “their property right to contract, or to own, operate, and
maintain a bingo business in Macon County, Alabama without due process of law as
guaranteed by the First, Fifth, Thirteenth, and Fourteenth Amendments to the United
States Constitution.” (Proposed Am. Compl. ¶ 174.) The new Count Five is brought
pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. (Proposed Am. Compl. ¶ 174.)
Plaintiffs expound that Defendants substituted their bingo rules for those promulgated
by Sheriff Warren, “arbitrarily and capriciously remove[d]” Sheriff Warren as the
“rule-making authority” and appointed in his stead Attorney General Strange,
“materially chang[ed] the definition of bingo, so as to eliminate electronic bingo
machines,” and impermissibly “close[d] the charities’ bingo business,” while at the
same time, permitted the Poarch Creek Indians and Greenetrack in Greene County to
conduct electronic bingo. (Proposed Am. Compl. ¶ 174a–g.)
The new proposed Count 6 alleges that through the actions described in the new
Counts 4 and 5, Defendants “negligently allowed . . . the civil and constitutional rights
of . . . Plaintiffs and the class they represent to be infringed upon[,] injuring Plaintiffs
and causing Plaintiffs monetary damages and other injuries,” in violation of 42 U.S.C.
§ 1986. (Proposed Am. Compl. ¶ 177.)
Moreover, the proposed Amended Complaint sets out ten new paragraphs
outlining the alleged economic devastation the closure of VictoryLand has had on
Macon County. (Proposed Am. Compl. ¶¶ 139–48.) It also adds allegations in
Count 3 that Attorney General Strange “has not operated in an even-handed manner”
or “exercised fairness in his actions against” Plaintiffs. (Proposed Am. Compl. ¶ 169.)
The proposed Amended Complaint otherwise incorporates claims and allegations
previously alleged in the original Complaint.
Defendants argue that the proposed Amended Complaint fares no better than
the original Complaint. They argue that the amendment is futile because Rule
12(b)(6) still requires the Amended Complaint’s dismissal. Defendants provide
specific arguments as to why Plaintiffs’ proposed Amended Complaint should not be
allowed. Plaintiffs do not address these specific arguments, but rather respond only
with general contentions to the effect that “if given an opportunity they will be able
to prove their allegations.” (Doc. # 45, at 11.)3 But Plaintiffs cannot prove what they
cannot even plausibly allege. There are myriad reasons why the proposed Amended
Complaint fails to state a claim. Here are some of the reasons why.
Due Process: Generally (Counts 4 & 5)
Counts 4 and 5 of the proposed Amended Complaint allege violations of “due
process of law” under the First, Fifth, Thirteenth, and Fifteenth Amendments (in
addition to the Fourteenth Amendment). The First Amendment, the Thirteenth
Amendment, and the Fifteenth Amendment do not contain a due process clause,
The Fifth Amendment’s Due Process Clause applies to the federal
government, but only state governmental action is at issue in this case. See Jordan v.
Mosley, 298 F. App’x 803, 886 n.5 (11th Cir. 2008); see also Buxton v. Plant City,
871 F.2d 1037, 1041 (11th Cir. 1989) (“The fifth amendment to the United States
Constitution restrains the federal government, and the fourteenth amendment, section
1, restrains the states, from depriving any person of life, liberty, or property without
due process of law.”).
Accordingly, the claims in Counts 4 and 5 based upon violations of due process
rights under the First, Fifth, Thirteenth, and Fifteenth Amendments clearly are subject
While Plaintiffs accuse Defendants of raising “Rule 12(b)(6) motions in disguise” (Doc.
# 45, at 10), a proposed amendment to a complaint that cannot survive Rule 12(b)(6) review is
futile. Cockrell, 510 F.3d at 1310.
to dismissal under Rule 12(b)(6). Allowing an amendment of these claims, therefore,
would be futile.
Equal Protection (Count 4)
Although Count 4 of the proposed Amended Complaint is titled “Denial of Due
Process of Law,” it includes a cursory mention of “a denial of the equal protection
guaranteed” by the Fourteenth Amendment. (Proposed Am. Compl. ¶ 36; see also
Proposed Am. Compl. ¶ 169 (adding that Attorney General Strange “has not operated
in an even-handed manner”).) To state a claim for an equal protection violation,
Plaintiffs must allege, among other things, that they were “treated differently from
others who were similarly situated.” Metro. Atlanta Task Force for the Homeless v.
City of Atlanta, Ga., 503 F. App’x 867, 869 (11th Cir. 2013) (citing Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). A similarly situated
comparator is one who is “prima facie identical in all relevant respects.” Campbell v.
Rainbow City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006).
In the separate Memorandum Opinion and Order granting Defendants’ motion
to dismiss the claims in the original Complaint, the court explained why the
allegations in the original Complaint did not plausibly allege an equal protection
claim. The proposed Amended Complaint’s additional allegations do not rectify those
pleading deficiencies so as to allege a plausible equal protection claim. While the
original Complaint arguably focused on the Indian-operated electronic bingo casinos
as the comparators, the proposed Amended Complaint references both Indian-run
casinos and Greenetrack, an electronic bingo facility in Greene County.4 The mention
of Greenetrack in a different count alleging a due process violation, however, does not
save the equal protection claim in Count 4 for at least two reasons.
First, no Plaintiff is an electronic bingo facility. Any comparison between an
electronic bingo facility and any Plaintiff stumbles at the starting gate for the reasons
set forth in the Memorandum Opinion and Order dismissing the claims in the original
Complaint. Those reasons are incorporated here and do not require further discussion.
Second, the proposed Amended Complaint alleges that Attorney General
Strange did, in fact, execute a search warrant at Greenetrack in Greene County and
seize its electronic bingo machines, but that a state circuit judge later set aside the
warrant and required the return of those machines. (Compl. ¶¶ 91, 94 (Ex. 40).)
According to the allegations, if Greenetrack is offering electronic bingo, then it is not
Count 4, the only count that uses the words “equal protection,” does not hint as to what
allegations demonstrate different treatment of a similarly situated comparator. Count 5, which is
labeled a due process claim, includes an allegation that Defendants “have permitted”
Greenetrack in Greene County “to use the same machines [as those that were used at
VictoryLand] or similar machines to operate bingo.” (Am. Compl. ¶¶ 106, 169, 174g.)
Notwithstanding Greenetrack’s mention in Count 5, there is no factual basis to support or even
suggest that Plaintiffs are similarly situated to Greenetrack.
because Defendants did not try to stop it.5 Moreover, as to other Alabama counties
where local constitutional amendments control the operation of charitable bingo
gaming, the exhibits attached to Plaintiffs’ Complaint suggest that Attorney General
Strange has treated other casinos equally, not differently, in the enforcement of
Alabama’s anti-gambling laws. (See, e.g., Compl., Exs. 30, 31, 32 (agreements
between the state attorney general and vendors concerning the removal of their
electronic bingo machines from facilities in Macon County, Lowndes County, and
Houston County and noting that the electronic bingo machines seized in Greene
County were subject to civil forfeiture proceedings).)
In sum, there are no plausible allegations in Count 4 or elsewhere in the
proposed Amended Complaint6 that Plaintiffs have “been intentionally treated
differently from others similarly situated.” Olech, 528 U.S. at 564. Leave to amend
the Complaint to add an equal protection claim in Count 4 would be futile.
It is notable also for the comparison analysis that Greene County’s constitutional
amendment defines “bingo” as including an “electronic marking machine.” Ala. Const. amend.
No. 743; see also Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 80 (Ala. 2009)
(recognizing the Greene County local constitutional amendment as “the only amendment in
Alabama . . . that makes any reference to the use of electronic equipment of any form”). To the
contrary, the word “electronic” does not appear in Macon County’s Amendment No. 744; it only
later appeared in the sheriff’s rules and regulations. See Ala. Const. amend. No. 744.
While a complaint’s grounds for relief must include more than “labels and conclusions”
or a “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555, the
proposed Amended Complaint does not even include these pleading formalities.
Right to Vote (Count 4)
Count 4 also appears to attempt to revive a constitutional voting rights claim,
but that attempt is futile. The proposed Amended Complaint, like the original
Complaint, still lacks allegations of actions bearing a direct relation to voting. The
allegations provide far too tenuous a connection between the claims of unlawful
actions and an injury affecting Plaintiffs’ voting rights. Accordingly, an amendment
to reintroduce a constitutional voting rights claim would be futile.
Due Process & Conspiracy (Count 5)
Count 5 alleges claims under §§ 1981, 1983, and 1985. In support of their
claims under §§ 1981 and 1983, Plaintiffs allege a deprivation of “property right[s]
to contract, or to own, operate, and maintain a bingo business in Macon County,
Alabama without due process of law” in violation of the Fourteenth Amendment.
(Proposed Am. Compl. ¶ 174.) In support of their claim under § 1985, Plaintiffs
allege that Defendants engaged in a racially motivated conspiracy to deprive them of
property without due process of law under the Fourteenth Amendment. (Proposed
Am. Compl. ¶ 174.)
“To state a claim for the denial of property without due process of law, the
plaintiff must allege (1) deprivation of a constitutionally protected property interest;
(2) governmental action; (3) and constitutionally inadequate process.”7 Miccosukee
Tribe of Indians of Fla. v. United States, 716 F.3d 555, 559 (11th Cir. 2013) (citing
Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)). A § 1985(3) claim has
three elements8: “(1) a conspiracy, (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in furtherance of the
conspiracy, (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Trawinski v.
United Techs., 313 F.3d 1295, 1299 (11th Cir. 2002) (quotation marks omitted).
§ 1981/§ 1983
Defendants argue that Count 5 does not state a plausible due process claim for
failure to allege constitutionally inadequate process. The arguments rely in part on the
holding of Lord Abbett Municipal Income Fund, Inc. v. Tyson, 671 F.3d 1203 (11th
Cir. 2007). In Lord Abbett, the plaintiff purchased municipal bonds that were subject
to repayment based upon fees generated from electronic bingo gaming at a facility in
Dothan, Alabama. The plaintiff alleged that Alabama state officials’ threats to seize
“[Section] 1983 constitutes the exclusive federal remedy for violation by state actors of
the rights guaranteed under § 1981.” Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009).
The proposed Amended Complaint does not specify upon which subsection of § 1985
Plaintiffs rely, but § 1985(3) offers the only legal theory potentially applicable. In any event,
Plaintiffs fail to allege any specific facts that would support a conspiracy claim under any
subsection of 42 U.S.C. § 1985.
the electronic bingo machines at this gaming facility (which ultimately resulted in the
gaming facility’s closure) interfered with its property interest in the bonds and the
income the plaintiff would have obtained from those bonds. See id. at 1207 & n.4.
The plaintiffs further alleged that the State of Alabama had a due process obligation
to provide it a pre-seizure hearing on the legality of the electronic bingo equipment.
Id. at 1206. The Eleventh Circuit disagreed.
“The government’s seizure of suspected contraband [i.e., the electronic bingo
machines] would grind to a halt if every entity that had an economic interest in the
targeted property was owed a hearing before the government could lawfully seize the
property.” Id. at 1208. The Eleventh Circuit “ha[d] no trouble concluding that the
due process clause d[id] not afford an entity without an ownership interest [in the
suspected contraband] a hearing in the face of threatened seizure.” Id. It concluded
that “the due process clause does not require states to afford those who seek to profit
from potentially criminal enterprises a hearing to establish the legality of the
enterprise before state officers have begun a prosecution or forfeiture action.” Id.
Because the complaint did not allege facts demonstrating any entitlement to a preseizure hearing, the Eleventh Circuit held that the complaint failed to allege
“constitutionally inadequate process” in connection with the seizure of electronic
bingo machines from the Alabama casino. Id. at 1207.
Based upon the foregoing principles, the due process claim in Count 5 would
fail Rule 12(b)(6) review because the proposed Amended Complaint does not allege
constitutionally inadequate process. To begin with, the proposed Amended Complaint
alleges at various junctures that Plaintiffs suffered deprivations of property rights
“without due process of law.” (See, e.g., Proposed Am. Compl. ¶¶ 2, 171, 174.) But
the proposed Amended Complaint does not allege what process Plaintiffs believe they
were due or include a request in the prayer for relief for any type of hearing or other
process with respect to the deprivation of their alleged property interests. The
omission of allegations of what process is due is, in and of itself, a fatal pleading
deficiency. See Miccosukee Tribe of Indians of Fla., 716 F.3d at 559 (affirming Rule
12(b)(6) dismissal of a procedural due process claim where the complaint “contain[ed]
no allegation of the process the Tribe claims was due, much less that it was
Lord Abbett further demonstrates the due process claim’s pleading deficiencies
with respect to allegations of constitutionally inadequate process. Plaintiffs allege,
similar to what the Lord Abbett plaintiff alleged, that Defendants’ actions culminating
in the seizure of the electronic bingo machines from VictoryLand interfered with their
alleged property rights arising from the operation of electronic bingo and its attendant
(Proposed Am. Compl. ¶ 140 (alleging that Plaintiffs have lost
“millions of dollars” in bingo revenues in Macon County).) Plaintiffs further allege,
in effect, that Defendants deemed VictoryLand’s electronic bingo operations a
potentially unlawful enterprise and engaged in all manner of activities to halt
electronic bingo operations at VictoryLand. (Proposed Am. Compl. ¶¶ 85–101.)
The proposed Amended Complaint makes no request for any type of process,
further obscuring the nature of the claim, but it does generally allege that Defendants
had no right to engage in any actions that would interfere in electronic bingo
operations at VictoryLand. And the fundamental premise for that contention is
Plaintiffs’ belief that the electronic bingo operations at VictoryLand were legal under
Alabama law. As Lord Abbett makes clear, however, such allegations fail to
demonstrate an entitlement to a pre-seizure hearing for a determination of the
machines’ legality. Plaintiffs do not attempt to distinguish their position from the
plaintiff’s in Lord Abbett; Plaintiffs here also hold no ownership interest in the
Those economic gains take various forms. For example, some Plaintiffs – the nonprofit
organizations – had bingo licenses through which they received millions of dollars in electronic
bingo revenues from VictoryLand’s operations. (Proposed Am. Compl. ¶ 140.) Other Plaintiffs
held leadership positions in those nonprofit organizations. (Proposed Am. Compl. ¶¶ 5, 6, 7.)
One Plaintiff earned his living working at VictoryLand’s electronic bingo facility. (Proposed
Am. Compl. ¶ 147.) Other Plaintiffs derived substantial monetary sums in taxes from electronic
bingo gaming revenues. (Proposed Am. Compl. ¶¶ 142, 144.) Two Plaintiffs obtained
significant revenues from VictoryLand, which was their biggest consumer of utilities and water
usage. (Proposed Am. Compl. ¶¶ 143, 145.) And one Plaintiff (the sheriff) “received over $1
million . . . in revenue and contributions” as a result of VictoryLand’s electronic bingo
operations. (Proposed Am. Compl. ¶ 146.)
electronic bingo machines or in VictoryLand, and they endeavor to profit from what
the State of Alabama deems a “potentially criminal enterprise[ ].” Lord Abbett, 671
F.3d at 1208. Without allegations plausibly showing constitutionally inadequate
process, the procedural due process claim would fail Rule 12(b)(6) review and its
proposed addition to the Complaint would be futile.
Section 1985(3) is not itself a source of substantive rights. “‘[I]t merely
provides a remedy for violation of the rights it designates.’” Dickerson v. Alachua
Cnty. Comm’n, 200 F.3d 761, 766 (11th Cir. 2000) (citation and internal quotation
marks omitted). Where the § 1985(3) claim is based on the same theory as the
underlying § 1981/§ 1983 claim and the underlying claim fails, the § 1985(3) claim
must also fail.
Here, the § 1985(3) conspiracy depends upon the plausibility of the underlying
Fourteenth Amendment due process claim. Because the underlying claim upon which
the § 1985(3) claim is based would not survive a motion to dismiss, the § 1985(3) also
Based on the foregoing, neither the § 1981/§ 1983 Fourteenth Amendment due
process claim nor the § 1985(3) conspiracy claim can survive Rule 12(b)(6) scrutiny.
An amendment of the Complaint to add Count 5, therefore, would be futile.
§ 1986 Conspiracy (Count 6)
The new proposed Count 6 alleges a cause of action under § 1986, which
imposes liability against anyone who has “knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 . . . , are about to be committed,
and having the power to prevent or aid in preventing the commission of the same,
neglects or refuses so to do.” 42 U.S.C. § 1986. Defendants’ arguments of futility
with respect to Count 6 focus on the derivative nature of § 1986 and Eleventh
Amendment immunity as to any claim for monetary damages, and those arguments
are legally sound.
Section 1986 “claims are . . . derivative of § 1985 violations.” Park v. City of
Atlanta, 120 F.3d 1157, 1159–60 (11th Cir. 1997). “To state a § 1986 claim, the
plaintiff must show that the defendant knew of a § 1985 conspiracy and failed to
prevent it, despite having the power to do so.” Palette v. Yellow Jacket Marina, Inc.,
395 F. App’x 549, 555 (11th Cir. 2010).
Plaintiffs allege no plausible facts demonstrating a § 1985 conspiracy on the
part of anyone or that Defendants had knowledge of any such conspiracy. Because
a cognizable § 1986 claim requires a viable § 1985 claim, the proposed Amended
Complaint necessarily fails to state individual- or official-capacity claims upon which
relief can be granted under § 1986. Moreover, to the extent Plaintiffs sue Defendants
in their official capacities for monetary damages under § 1986 (see Proposed Am.
Compl. ¶¶ 1, 177), the Eleventh Amendment bars that claim. See Jackson v. Ga.
Dep’t of Transp., 16 F.3d 1573, 1579 (11th Cir. 1994) (“Because the Eleventh
Amendment bars from federal court an action seeking money damages from a state,
a damages suit against state officials or employees in their official capacities . . . is
also barred.”). In short, Plaintiffs’ proposed amendment to add Count 6 would be
Counts 4, 5, and 6, and the Pennhurst Problem
Governor Bentley also contends that Counts 4, 5, and 6 raise Eleventh
Amendment immunity concerns because the “fundamental premise” of these claims
is that Defendants violated Amendment No. 744. (Bentley’s Resp. to Mot. to Amend
Compl., at 8.) Governor Bentley points to paragraph 3 of the proposed Amended
Complaint, which accuses him of entering an executive order that allegedly made
Attorney General Strange a “new de facto regulator of bingo” contrary to Amendment
No. 744’s designation of the sheriff as the regulator of charitable bingo in Macon
County. (Proposed Am. Compl. ¶ 3.) He asserts that what Plaintiffs really are
alleging is that Defendants violated state constitutional law and that the Eleventh
Amendment precludes relief for the alleged violation. Governor Bentley persuasively
illustrates the proposed Amended Complaint’s Pennhurst problem.
In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), the
Supreme Court held that the Eleventh Amendment deprives federal courts of
jurisdiction to order a state official to comply with state law. See id. at 121; see also
id. at 106 (“[I]t is difficult to think of a greater intrusion on state sovereignty than
when a federal court instructs state officials on how to conform their conduct to state
law.”). The proposed Amended Complaint focuses extensively on the history and
purpose of Amendment No. 744 and its delegation of authority to the Macon County
sheriff to promulgate and enforce rules and regulations governing charitable bingo in
his county. (See, e.g., Proposed Am. Compl. ¶¶ 45–56.) It also is replete with
allegations that Governor Bentley, as well as Attorney General Strange, has engaged
in actions that directly contravene Amendment No. 744. (See, e.g., Proposed Am.
Compl. ¶¶ 2, 3, 99, 101, 166, 167.) While the proposed Amended Complaint stops
short of expressly requesting an injunction that Defendants act in conformity with
Amendment No. 744 (as Plaintiffs interpret Amendment No. 744), the requested relief
is disguised, and barely so, to achieve that aim. Namely, if, as Plaintiffs request,
Defendants are enjoined from implementing statewide policies that interpret
Alabama’s anti-gambling laws as prohibiting the type of electronic bingo machines
that patrons played at VictoryLand prior to its 2013 closure, and if Defendants are
enjoined “from conducting further police raids on bingo operations in Macon County”
(Proposed Am. Compl., at 40 (prayers for relief)), then undoubtedly electronic bingo
games could resume at VictoryLand without interference from Defendants, given the
sheriff’s prior approval of such games. This in effect would mean that Amendment
No. 744 would function exactly how Plaintiffs think it should, that is, consistent with
the Macon County sheriff’s previous proclamation that “electronic bingo machines in
operation at VictoryLand compl[y] with [Amendment No. 744] and the Sheriff’s
Regulations and are not slot machines or illegal gambling devices.” (Proposed Am.
Compl. ¶ 114.) In short, Plaintiffs are in reality attempting to coerce state officials
into conforming with state law. Accordingly, the Eleventh Amendment would bar the
relief requested. Permitting an amendment to add Counts 4, 5, and 6 would be futile.
Based upon the foregoing, Plaintiffs’ Motion for Leave to File Amended
Complaint is futile because the proposed Amended Complaint cannot withstand a
motion to dismiss. Accordingly, it is ORDERED that the motion (Doc. # 39) is
DONE this 23rd day of December, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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