3D-LIQ, LLC et al v. Amerson

Filing 26

MEMORANDUM OPINION AND ORDER GRANTING 9 MOTION to Dismiss. All claims asserted in the Amended Complaint against Amerson are hereby DISMISSED WITH PREJUDICE. All claims asserted in the Amended Complaint against Wade are DISMISSED WITHOUT PREJUDICE. No later than March 16, 2017, Plaintiff may amend its complaint again to correct the deficiencies set out herein. Signed by Judge Virginia Emerson Hopkins on 2/24/2017. (JLC)

FILED
2017 Feb-24 AM 11:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
3D-LIQ, LLC,
Plaintiff,
v.
MATTHEW WADE, in his official
capacity as Sheriff of Calhoun
County, Alabama; and LARRY
AMERSON, individually,
Defendants.

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) Case No.: 1:16-CV-1358-VEH
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MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, 3D-LIQ, LLC, against Matthew
Wade, in his official capacity as the Sheriff of Calhoun County, Alabama, and against
Larry Amerson, individually. (Doc. 14).1 All counts of the Amended Complaint arise
out of a raid of a bingo hall by the Calhoun County Sheriff’s Office, and the seizure

1

The Amended Complaint actually does not name Wade, but instead names Larry
Amerson, “individually and in his official capacity as Sheriff of Calhoun County, Alabama.”
(Doc. 14 at 1). At the time of the events of this case Amerson was the Sheriff, but he no longer
is. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, and this Court’s Order of
October 27, 2016 (doc. 21), Wade was substituted for former Sheriff Amerson for purposes of
the official-capacity claims. Amerson remains a Defendant in his individual capacity.
Also, when this case was originally filed on August 19, 2016, Sable Learning Center
(“Sable”) was an additional Plaintiff. (Doc. 1). The Amended Complaint omits Sable as a
Plaintiff and contains no claims against Sable. Sable also filed a motion to dismiss its claims
(doc. 13), which this Court granted on October 27, 2016 (doc. 21).

of the Plaintiff’s property therein.
The Amended Complaint states that it “is brought pursuant to 42 U.S.C. §
1983,” and “the Federal Declaratory Judgment Act.” (Doc. 14 at 3). It sets out four
counts. Count One is entitled “Injunctive Relief under 42 U.S.C. § 1983,” although
section 1983 is not mentioned in the body of the count. Count Two is entitled
“Injunctive Relief,” although the body of the count fails to state the basis for such
relief. Count Three seeks a declaratory judgment, but, again, the body of the count
does not state the legal basis for such relief.

Count Four seeks “damages,”

presumably pursuant to section 1983, although the count does not say as much.
The case comes before the Court on the Defendant’s “Motion [T]o Dismiss, or
in the Alternative for Summary Judgment,” filed on September 19, 2016. (Doc. 9).
A hearing was held on the motion on November 17, 2016. For the reasons stated
herein, the motion will be treated as a motion to dismiss, pursuant Rule 12(b)(6) of
the Federal Rules of Civil Procedure, and will be GRANTED. However, the Plaintiff
will be given an opportunity to amend its claims against Sheriff Wade, and then only
in his official capacity.
I.

STANDARD
Generally, the Federal Rules of Civil Procedure require only that the complaint

provide “a short and plain statement of the claim showing that the pleader is entitled
2

to relief.” Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under
Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
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) (citing Twombly,
550 U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and
footnote omitted). 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 or conclusions” or “naked assertion[s]”
without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
II.

ALLEGATIONS IN THE AMENDED COMPLAINT
3

The following factual allegations appear in the Amended Complaint:
8.
Sable [Learning Center (“Sable”)] is a qualified nonprofit
organization and has run a center for children in Hobson City, a small
town outside of Anniston, [Alabama] for over 30 years. The center
provides underprivileged children with healthy meals and assists them
with their schoolwork.
9.
In order to generate much needed money to continue to run the
center, Sable, in accordance with Alabama law, applied for a bingo
permit in the early summer of 2016. Sable sought to run a paper bingo
operation on property located at 448 White Oak Drive, Glencoe,
Alabama—property located in Calhoun County, Alabama but within the
police jurisdiction of [the City of] Southside[, Alabama].
***
Sable’s Application and Permit
17. In early summer of 2016, Sable applied for a permit to operate a
charitable bingo hall in Calhoun County.
18. On June 1, 2016, the [Calhoun County Bingo Regulatory
Commission (the “Commission”)] approved the issuance of a bingo
permit to Sable, and the Commission issued a bingo permit to Sable that
day.
19.

Sable then obtained a permit from Southside on July 12, 2016.

Sable and 3D-LIQ’s Relationship
20. After obtaining the necessary permits, Sable began preparing to
open the bingo hall. To that end, Sable entered into three agreements
with 3D-LIQ for 3D-LIQ to lease the premises located at 448 White Oak
Drive, Glencoe, Alabama to Sable and to provide equipment and certain
services necessary for the charitable bingo operation.

4

21. Sable and 3D-LIQ entered into a services agreement, under which
3D-LIQ agreed to provide all advertising, janitorial, and security
services for Sable.
22. They also entered into an exclusive equipment lease and license
agreement, under which 3D-LIQ agreed to provide all point-of-sale
equipment, furniture, supplies, and other bingo-related equipment to
Sable.
23. Finally, Sable and 3D-LIQ entered into a lease agreement, under
which 3D-LIQ leased the premises and facility located at 448 White Oak
Drive, Glencoe, Alabama to Sable.
24. In exchange for the services, equipment, and property, Sable
agreed to pay 3D-LIQ.
The Opening of Big Hit Bingo Hall & the July 22 Raid
25. 3D-LIQ spent significant time and resources preparing the
property for the planned bingo operation.
26. 3D-LIQ provided all of the equipment, supplies, and furniture to
Sable and otherwise helped prepare the charitable bingo operation.
27. 3D-LIQ spent thousands of dollars purchasing technological
equipment (including point-of-sale machines and a security system),
televisions, and furniture for the bingo hall.
28. Sable planned to open the charitable bingo hall on July 22, 2016,
and pursuant to its agreement with Sable, 3D-LIQ heavily advertised the
July 22 opening.
29. [Defendant] Amerson informed various news organizations that
Sable did not have a valid bingo permit.
30. Neither the Commission nor [the City of] Southside gave notice
that the bingo permit had been declared invalid or had been revoked.
5

31. The district attorney of Calhoun County did not file an action with
the Calhoun County Circuit Court seeking to revoke the permit.
32.

No actions have been taken . . . to revoke Sable’s bingo permit.

33. But, on opening night (Friday, July 22), Amerson, under the
premise that Sable’s bingo permit was invalid, raided the charitable
bingo operation, shut it down, and escorted out all of the
charitable-bingo players.2
34. In an operation that took Friday night and most of Saturday,
Amerson and the Sheriff’s Department seized money and other
bingo-related equipment leased to Sable by 3D-LIQ.
35.

[]

36. Amerson has threatened to arrest individuals associated with
3D-LIQ for violating the Act.
37. Amerson’s unlawful raid of the charitable bingo operation has
caused significant damages to 3D-LIQ.
38. Amerson has unlawfully seized 3D-LIQ’s property. Without the
necessary equipment that was seized by Amerson, Sable has been unable
to reopen the charitable bingo operation since the July 22 raid, and as a
result, 3D-LIQ has lost, and continues to lose, revenue due to it under
its agreements with Sable.
39. Amerson’s unlawful raid caused significant damage to 3D-LIQ’s
property. During the raid, Amerson removed and damaged personal
property and equipment that was not seized.
40.

Amerson’s unlawful seizure and raid has halted the generation of

2

At oral argument, the parties agreed that the Sheriff had obtained a warrant for the raid
and seizure.
6

revenue entitled to 3D-LIQ under its agreements with Sable.
41. Amerson’s unlawful interference with the charitable bingo
operation has caused irreparable harm to 3D-LIQ. Without equipment,
the charitable bingo operation cannot proceed, and 3D-LIQ continues to
lose revenue.
42. Amerson has caused the charitable bingo operation to close, and
Amerson continues to threaten another raid and seizure of equipment if
the operation is reopened.
43. Amerson has resorted to in terrorem tactics to prevent 3D-LIQ
from continuing to supply equipment, services, and the property to allow
for the operation of a charitable bingo operation by threatening
individuals associated with 3D-LIQ with criminal prosecution should
the charitable bingo operation resume.
(Doc. 14 at 3-9).
III.

ANALYSIS
A.

Count One – 42 U.S.C. § 1983
1.

Overview of the Count

Count One states that it is brought against “Amerson.” However, as noted
previously3, the reference to “Amerson,” without more, can be construed to mean
Wade, in his official capacity, and Amerson, in his individual capacity. The Court
so construes this Count.
“To state a claim under § 1983, a plaintiff must allege the violation of a right

3

See note 1.
7

secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” W.
v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254–55, 101 L. Ed. 2d 40 (U.S. 1988)
(citations omitted). Count One alleges that:
3D-LIQ has a property right to the bingo-related equipment and other
property seized and a property interest in the revenue streams generated
by Sable’s operation of the bingo hall. . . . Amerson’s interference with
the operation of the charitable bingo operation, including the seizure of
the bingo-related equipment, has deprived 3D-LIQ of its property rights
and interests.
***
Amerson’s threatened commencement of prosecution has deprived
3D-LIQ of its liberty rights.
***
Amerson’s unlawful interference with the operation of a lawful
charitable bingo operation has deprived 3D-LIQ of revenue due to it
under its agreements with Sable.
(Doc. 14 at 10, ¶¶47-50) (emphasis added). The Plaintiff contends that it “has not had
a chance to be heard prior to or after being deprived of these rights [and] will
continue to be deprived of its rights without a chance to be heard.” (Doc. 14 at 10,
¶¶51-52). The Plaintiff also alleges that it is entitled to be heard . . . before Amerson
further interferes with [its] rights.” (Doc. 14 at 11, ¶56). The Amended Complaint
argues that the absence of such a pre-deprivation procedure is a violation of the
8

Plaintiff’s right to procedural due process under the Fourteenth Amendment to the
United States Constitution. (Doc. 14 at 10, ¶¶54-56).
The title of Count One states that it seeks only “Injunctive Relief under 42
U.S.C. § 1983.” (Doc. 14 at 10). The Amended Complaint states that “[u]nder the
Fourteenth Amendment, 3D-LIQ is entitled to be heard on why Amerson’s actions are
improper before Amerson further interferes with 3D-LIQ’s rights.” (Doc. 14 at 11,
¶56). The Plaintiff seeks relief in the form of “[a]n appropriate hearing to protect
3D-LIQ’s procedural due process rights under the Fourteenth Amendment before
Amerson further interferes with its rights.” (Doc. 14 at 14).
2.

The Individual Capacity Claim Against Amerson Is Due To Be
Dismissed

“The plaintiff must . . . name as a defendant the state official empowered with
enforcing the disputed constitutional right or statutory provision in his official
capacity.” See, Louisius v. Florida Dep't of Corr., No. 6:14-CV-931-ORL-40, 2015
WL 667973, at *4 (M.D. Fla. Feb. 17, 2015) (Byron, J.) (citing Grizzle v. Kemp, 634
F.3d 1314, 1319 (11th Cir. 2011)); see also, Grizzle v. Kemp, 634 F.3d 1314, 1319
(11th Cir. 2011) (“A state official is subject to suit in his official capacity when his
office imbues him with the responsibility to enforce the law or laws at issue in the
suit.”). Amerson is sued only in his individual capacity. Although no party raises

9

this issue, the Court notes that since Amerson is no longer the Sheriff of Calhoun
County, he lacks the official capacity to secure any of the relief sought in Count One.
Accordingly, all claims against Amerson in Count One are due to be dismissed.
3.

The Official Capacity Claim Against Sheriff Wade
a.

Sheriff Wade Is Entitled to Eleventh Amendment
Immunity as to the Claim for Injunctive Relief in Count
One

The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State4, or by Citizens or Subjects of
any Foreign State.
U.S. Const. amend. XI. “[A] suit by private parties seeking to impose a liability
which must be paid from public funds in the state treasury is barred by the Eleventh
Amendment.” Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1356, 39 L. Ed.
2d 662 (1974). The Eleventh Circuit has noted that
[Alabama Sheriff’s] are state officials for sovereign-immunity purposes.
See Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir.1990). “A
state official may not be sued in his official capacity unless the state has
waived its Eleventh Amendment immunity ... or Congress has abrogated
the state's immunity.” Lancaster v. Monroe County, Ala., 116 F.3d 1419,
4

“A state is [also] immune from a suit for damages in federal court by one of its own
citizens[.]” Lake v. Skelton, 840 F.3d 1334, No. 15-13124, 2016 WL 6518522, at *2 (11th Cir.
Nov. 3, 2016) (citing Hans v. Louisiana, 134 U.S. 1, 14–17, 10 S.Ct. 504, 33 L.Ed. 842 (1890)).

10

1429 (11th Cir.1997) (internal citations omitted).
Hill v. Hale, 637 F. App’x 577, 578 (11th Cir. 2016). Congress has not abrogated
Eleventh Amendment immunity in Section 1983 cases, and the State of Alabama has
not waived its immunity. Carr, 916 F.2d at 1525.
Wade does not raise Eleventh Amendment immunity in the motion to dismiss.
The Eleventh Circuit has noted that
the jurisdictional bar embodied in the Eleventh Amendment is a “rather
peculiar kind of ‘jurisdictional’ issue.” United States v. SCS Bus. &
Tech. Inst., Inc., 173 F.3d 890, 892 (D.C.Cir.1999). Unlike most subject
matter jurisdiction issues, which cannot be waived by the parties and
must be raised by a court on its own initiative, the Eleventh Amendment
does not automatically deprive a court of original jurisdiction. Wisconsin
Dept. of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct. 2047,
2052, 141 L.Ed.2d 364 (1998); see Calderon v. Ashmus, 523 U.S. 740,
745 n. 2, 118 S.Ct. 1694, 1697 n. 2, 140 L.Ed.2d 970 (1998) (“While the
Eleventh Amendment is jurisdictional in the sense that it is a limitation
on the federal court's judicial power, ... we have recognized that it is not
coextensive with the limitations on judicial power in Article III.”).
“Rather,” the Supreme Court has explained, “the Eleventh Amendment
grants the State a legal power to assert a sovereign immunity defense
should it choose to do so.” Schacht, 524 U.S. at 389, 118 S.Ct. at 2052.
This understanding of the Eleventh Amendment as a volitional defense
is manifest in decisions allowing it to be waived by the state, see, e.g.,
Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142,
3146–47, 87 L.Ed.2d 171 (1985), or ignored by the court if not raised,
see, e.g., Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 515 n. 19, 102
S.Ct. 2557, 2567, n. 19, 73 L.Ed.2d 172 (1982). Thus, unlike other
jurisdictional bars, federal courts are required to consider whether the
Eleventh Amendment strips them of jurisdiction only if the state
defendant insists that it does.

11

McClendon v. Georgia Dep't of Cmty. Health, 261 F.3d 1252, 1257 (11th Cir. 2001).
Be that as it may, in McClendon, the Eleventh Circuit also was clear that
a state or its officials cannot force a federal court to decide the merits of
a claim before addressing the Eleventh Amendment issue, and we can
raise an Eleventh Amendment issue on our own motion. Whiting v.
Jackson State University, 616 F.2d 116, 126 n. 8 (5th Cir.1980). Our
holding is limited to the conclusion that the conditional assertion of the
Eleventh Amendment gives a federal court the discretion to dispose of
the merits favorably to the state or its officials if it chooses to do so.
Given modern caseload burdens, one of the paramount considerations
in deciding whether to accept such an invitation will be the difficulty of
the Eleventh Amendment issues compared to the merits issues. See
Parella, 173 F.3d at 56 (“[A]voiding Eleventh Amendment questions
where there are other dispositive issues ... permits courts to avoid
squandering judicial resources.”).
McClendon, 261 F.3d at 1259 (emphasis added); Selensky v. Alabama, 619 F. App'x
846, 849 (11th Cir. 2015) (affirming sua sponte dismissal on Eleventh Amendment
grounds).
Despite Wade’s failure to raise the issue in his briefs5, the Court deems it
appropriate to examine the Eleventh Amendment issues in this case.
(1)

The Ex Parte Young Exception to Eleventh
Amendment Immunity Allows a Claim for
Prospective Relief To End Continuing Violations

5

At oral argument, counsel for Wade and Amerson agreed that there was an Eleventh
Amendment issue which they did not raise. (Doc. 24 at 5 (“There are different legal doctrines.
You might plug some of our arguments in. Sovereign immunity is certainly one of them.”); at 6
(“[W]e do not disagree with Your Honor's sovereign immunity. [sic] And it being a jurisdictional
matter, of course, the court is always free to take up sovereign immunity.”); at 6 (“It was not our
intent to waive sovereign immunity or any other defense.”)).
12

of Federal Law
As noted previously, Count One seeks only equitable relief in the form of “[a]n
appropriate hearing to protect 3D-LIQ’s procedural due process rights under the
Fourteenth Amendment before [Wade] further interferes with its rights.” (Doc. 14 at
14) (emphasis added) (alterations added). The Eleventh Circuit has noted that
[p]ursuant to the exception established in Ex parte Young, 209 U.S. 123,
28 S.Ct. 441, 52 L.Ed. 714 (1908), official-capacity suits against state
officials are permissible, however, under the Eleventh Amendment when
the plaintiff seeks “prospective equitable relief to end continuing
violations of federal law.” See [Summit Med. Associates, P.C. v. Pryor,
180 F.3d 1326, 1336 (11th Cir. 1999)] (emphasis in original).
Lane v. Cent. Alabama Cmty. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (alterations
added; italics in original).
In Summit Medical, the Eleventh Circuit discussed the Young exception in
some depth saying:
The Eleventh Amendment generally does not bar the exercise of
the judicial power of the United States where a plaintiff seeks to compel
a state officer to comply with federal law. See Ex parte Young, 209 U.S.
at 158–59, 28 S.Ct. 441. Because the enforcement of “an
unconstitutional statute is void, and therefore does not ‘impart to [the
officer] any immunity from responsibility to the supreme authority of the
United States,’ ” the Supreme Court has held that the officer is not
entitled to protection by the state's sovereign immunity. Green v.
Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985)
(quoting Ex parte Young, 209 U.S. at 160, 28 S.Ct. 441); see also Coeur
d'Alene, 521 U.S. at 288, 117 S.Ct. 2028 (O'Connor, J., concurring)
(“The Young doctrine recognizes that if a state official violates federal
13

law, he is stripped of his official or representative character and may be
personally liable for his conduct; the State cannot cloak the officer in its
sovereign immunity.”). This doctrine has, therefore, been described as
a legal “fiction” because it creates an imaginary distinction between the
state and its officers, deeming the officers to act without the state's
authority, and, hence, without immunity protection, when they enforce
state laws in derogation of the Constitution. See Pennhurst, 465 U.S. at
114 n. 25, 104 S.Ct. 900.
Thus, the availability of this doctrine turns, in the first place, on
whether the plaintiff seeks retrospective or prospective relief. As the
Supreme Court has explained:
Young has been focused on cases in which a violation of
federal law by a state official is ongoing as opposed to
cases in which federal law has been violated at one time or
over a period of time in the past, as well as on cases in
which the relief against the state official directly ends the
violation of federal law as opposed to cases in which that
relief is intended indirectly to encourage compliance with
federal law through deterrence or directly to meet
third-party interests such as compensation. As we have
noted: “Remedies designed to end a continuing violation of
federal law are necessary to vindicate the federal interest in
assuring the supremacy of that law. But compensatory or
deterrence interests are insufficient to overcome the
dictates of the Eleventh Amendment.”
Papasan v. Allain, 478 U.S. 265, 277–78, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986) (quoting Green, 474 U.S. at 68, 106 S.Ct. 423). Therefore,
the Eleventh Amendment bars suits against state officials in federal
court seeking retrospective or compensatory relief, but does not
generally prohibit suits seeking only prospective injunctive or
declaratory relief. See Green, 474 U.S. at 68, 106 S.Ct. 423. If the
prospective relief sought is the functional equivalent of money damages,
however, i.e., “[i]t is measured in terms of a monetary loss resulting
from a past breach of a legal duty,” Ex parte Young does not apply.
14

Edelman, 415 U.S. at 669, 94 S.Ct. 1347.
Because of the important interests of federalism and state
sovereignty implicated by Ex parte Young, however, the doctrine is not
without limitations . . .. [For example,] the Ex parte Young doctrine
applies only to ongoing and continuous violations of federal law. See
Papasan, 478 U.S. at 277–78, 106 S.Ct. 2932; Green, 474 U.S. at 68,
106 S.Ct. 423. In other words, a plaintiff may not use the doctrine to
adjudicate the legality of past conduct. See Papasan, 478 U.S. at
277–78, 106 S.Ct. 2932. This requirement protects states by setting “a
minimum threshold for abrogating a state’s constitutional immunity.”
Booth v. Maryland, 112 F.3d 139, 142 (4th Cir.1997), cert. denied, 524
U.S. 905, 118 S.Ct. 2063, 141 L.Ed.2d 140 (1998). [Also,] in Idaho v.
Coeur d'Alene Tribe, the Supreme Court recently said that the Ex parte
Young doctrine does not apply where the equitable relief sought
“implicates special sovereignty interests.” 521 U.S. 261, 281, 117 S.Ct.
2028, 138 L.Ed.2d 438 (1997). Thus, if prospective relief would invade
a state's sovereignty as much as an award of money damages would, the
action will be barred by the Eleventh Amendment.
Summit Medical, 180 F.3d at 1336–37 (emphasis added). In Summit, the Eleventh
Circuit also held that “where there is a threat of future enforcement that may be
remedied by prospective relief, the ongoing and continuous requirement has been
satisfied.” Id. at 1338 (emphasis added). The Court wrote:
Here, Appellees unquestionably seek prospective relief—a
declaratory judgment that the partial-birth and post-viability abortion
statutes are unconstitutional. Although Appellants have not yet initiated
prosecution, nor have they specifically threatened Appellees with
prosecution, Appellants do intend to prosecute violators of both statutes,
at least in cases where the fetus is viable. Moreover, as Appellants
concede, the Attorney General could withdraw the enforcement directive
and prosecute partial-birth abortions pre-viability. Given the severity of
the potential penalties—up to ten years for the partial-birth abortion
15

statute and up to ninety-nine years for the post-viability abortion
statute—Appellees would not have to be very risk averse to avoid any
arguably proscribed conduct that may come within the reach of these
statutes. In short, Appellees have sufficiently alleged an ongoing and
continuous violation of federal law.
Id. at 1339-40; see also, Charles Alan Wright et al., 13D Fed. Prac. & Proc. § 3566,
at 292 (3d ed. 2008) (“The best explanation of Ex parte Young and its progeny is that
the Supremacy Clause creates an implied right of action for injunctive relief against
state officers who are threatening to violate the federal Constitution and laws.”)
(emphasis added); McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (“The
requirement that the violation of federal law be ongoing is satisfied when a state
officer's enforcement of an allegedly unconstitutional state law is threatened, even if
the threat is not yet imminent.”); Vickery v. Jones, 100 F.3d 1334, 1346 (7th Cir.
1996) (“[T]he Young exception permits relief against state officials only when there
is an ongoing or threatened violation of federal law.”).
(2)

The Plaintiff Has Failed To Plausibly Allege An
Ongoing Violation of Federal Law

The difference between a threat of unconstitutional action that is viable and one
that is not, is illustrated in Judge Batten’s opinion in Cassells v. Hill, No.
1:07-CV-2755-TCB, 2010 WL 4616573 (N.D. Ga. Nov. 8, 2010) (Batten, J.). In
Cassells, the plaintiff filed a Section 1983 action “challeng[ing] the constitutionality

16

of the Sheriff's Office rules and regulations regarding media releases and public
criticism.” Cassells, 2010 WL 4616573 at *4. The plaintiff, Cassells, a former
sheriff’s office employee, had been fired after making comments to the media
regarding a current investigation into the Clayton County, Georgia Sheriff’s Office.
A new sheriff took office after Cassells was fired and immediately eliminated the
rules which Cassells was alleged to have violated. Judge Batten wrote:
The situation here contrasts sharply with the situation in Summit
Medical. When Cassells initiated this lawsuit on November 6, 2007, he
alleged a violation of federal law that was ongoing. The Sheriff's
Office's rules and regulations regarding media communication that
Cassells challenges apparently were still applicable in 2007, even if no
longer being enforced against Cassells. But when Kimbrough took
office in January 2009, he removed the challenged provisions of the
rules and regulations. Unlike the situation in Summit Medical, Cassells
is not asking the Court to declare invalid an existing rule or a threatened
action. Even assuming that the challenged rules were constitutionally
invalid, they are no longer being applied to anyone, nor is there any
threat at this time that they will be applied again. Under such
circumstances, the requested injunction would be retrospective relief
and is therefore barred by the Eleventh Amendment.
Id. at *18.
In Doe v. Annucci, No. 14 CIV. 2953 PAE, 2015 WL 4393012 (S.D.N.Y. July
15, 2015) (Engelmayer, J.), appeal withdrawn (May 12, 2016), Judge Englemayer, in
the Southern District of New York, also addressed this issue. In Annuci, the Plaintiff,
Doe, had been convicted of sexual offenses against a minor. As noted by Judge

17

Englemayer,
[a]fter Doe was released on parole, Doe's wife, Jane Doe, gave birth to
a son, M .S. In the years that followed, the Department of Corrections
and Community Supervision (“DOCCS”) applied one of Doe's special
parole conditions to bar him, during two distinct time periods, from
having any contact with his infant son.
Annucci, 2015 WL 4393012, at *1. The bar was in place at the time Doe filed his suit
in federal court asserting claims for violation of his substantive and procedural due
process rights, and right to free association. Doe sought relief in the form of
a declaration that the “restriction on John Doe's contact with M.S. was
unconstitutional,” a “permanent injunction barring enforcement of the
challenged parole condition as applied to John Doe,” monetary damages,
and attorneys' fees and costs.
Id. at *4. Before a judgment was entered, the DOCCS lifted the bar noting that while
its order
“may result in possible reunification with his son in the marital
household,” . . . Doe was “[] still subject to the original condition of his
release.” Further, [the DOCCS] stated that the “decision does not
preclude any future decision to bar [Doe’s] contact with his son based
on emerging issues, conditions or circumstances which would indicate
to a parole officer that he is likely to or has sexually reoffended any
child.”
Id. Thereafter, Doe’s parole officer modified his parole conditions to “allow [ ]
unrestricted contact” between Doe and his minor children. Id. Addressing Eleventh
Amendment immunity, Judge Engelmayer noted that “[the plaintiff’s] claim for

18

injunctive relief . . . falls within the Young exception so long as the complaint alleges
an “ongoing violation of federal law.” Id. at *16. He continued:
Here . . . the requested injunctive relief is prospective. It does not
relate to conduct that occurred in the past. . . . Rather, anticipating the
“threat of future enforcement,” it aims to “prevent injury that will occur
in the future.” Summit Med. Assocs., 180 F.3d at 1338.
The Court therefore holds that [Doe] states a claim for an ongoing
violation, such that, as pled, sovereign immunity does not bar Doe's
claim for injunctive relief against Annucci.
Id. at *15–17.
In the instant case, the relief sought in Count One – a pre-seizure hearing
“before Amerson further interferes with [the Plaintiff’s] rights” (doc. 14 at 11, ¶56)
– is prospective. The Plaintiff seeks injunctive relief to stop a possible future
interference with Plaintiff’s aforementioned rights without a hearing beforehand. The
Amended Complaint alleges
42. [Wade] has caused the charitable bingo operation to close, and
[Wade] continues to threaten another raid and seizure of equipment if
the operation is reopened.
43. [Wade] has resorted to in terrorem tactics to prevent 3D-LIQ from
continuing to supply equipment, services, and the property to allow for
the operation of a charitable bingo operation by threatening individuals
associated with 3D-LIQ with criminal prosecution should the charitable
bingo operation resume.
(Doc. 14 at 9) (emphasis added). However, the Plaintiff’s allegations of “threats” are

19

supported nowhere in the Amended Complaint with facts. The Plaintiff never states
when such threats were made, whether they were made by the Sheriff himself of
someone in his department, and to whom the threats were made. The allegations are
mere “labels or conclusions” and “naked assertion[s]” without supporting factual
allegations. Twombly, 550 U.S. at 557. Thus, the Plaintiff has failed to plausibly
allege an ongoing violation. See, Duke v. Hamil, 997 F. Supp. 2d 1291, 1298 (N.D.
Ga. 2014) (“Other than alleging that ‘Defendants' actions ... have a chilling effect
upon expression in general,’ (Compl., Dkt. [1] ¶ 30), Plaintiff alleges no specific facts
to show that Defendant Hamil has been suppressing the speech of his employees.
Simply alleging that Plaintiff's demotion has chilled others’ First Amendment rights
fails to show a plausible constitutional violation, let alone one that is ongoing, and
thus Ex parte Young is inapplicable.”); Clark v. DiNapoli, 510 F. App'x 49, 51 (2d
Cir. 2013) (allegations which contain no plausible threat of future violations do not
fall within the Young exception to Eleventh Amendment immunity); Cmty. Mental
Health Servs. of Belmont, Harrison & Monroe Ctys., Ohio v. Mental Health &
Recovery Bd. of Belmont, Harrison & Monroe Ctys., 395 F. Supp. 2d 644, 651 (S.D.
Ohio 2004) (Frost, J.), aff'd sub nom. Cmty. Mental Health Servs. of Belmont v.
Mental Health & Recovery Bd. Serving Belmont, Harrison & Monroe Ctys., 150 F.
App'x 389 (6th Cir. 2005) (“[P]laintiff claims that Defendants Hayes and Hogan have
20

‘threatened to press forward with their unlawful taking of plaintiff's funds and
unlawful investigation’ (Pl.'s Mem. Opp'n. at 11) but plaintiff has not alleged any
specific facts to support this contention.”).
Because the Plaintiff has failed to plausibly allege “a threat of future
enforcement that may be remedied by prospective relief” Summit Medical, 180 F.3d
at 1338, it has failed to allege a continuing violation of federal law, and the Ex Parte
Young exception to Eleventh Amendment immunity does not apply. Count One is
thus due to be dismissed as against Wade, who is sued in his official capacity only.6
However, since the Court raised this issue sua sponte, it will allow the Plaintiff to
amend its complaint again to plausibly allege a threat of future enforcement, if it can
do so.
b.

The Right to a Pre-Seizure Hearing

Since the Court has determined that Count One, as pled against Wade, is
insufficient, there is no need at this time to determine whether the Plaintiff would
have a right to a preseizure hearing. However, in the event that the Plaintiff amends
to plausibly allege a threat of future enforcement, and the Defendants respond with

6

At oral argument, counsel for the Defendants referred to this as a “ripeness issue”
saying “[t]here's no indication that this defendant is going to be conducting bingo operations in
the future. There’s no reason to suspect that they'll be in a situation where the sheriff would be in
a position to seize equipment.” (Doc. 24 at 7). However, counsel also acknowledged that if the
Plaintiff alleged that they plan to resume operations, that would cure this issue. (Doc. 24 at 7).
21

another motion to dismiss, this issue will likely be before the Court again.
Accordingly, the Court will set out its “observations” at this point in order to guide
future briefing on this issue.
As noted previously, the Plaintiff contends that Wade violated its procedural
due process rights guaranteed under the 14th Amendment of the United States
Constitution. “In order to state a procedural due process claim under § 1983, [a
plaintiff has] to allege a constitutionally inadequate process.” Lord Abbett Mun.
Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1207 (11th Cir. 2012); see also, Grayden
v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.2003) (“In this circuit, a § 1983 claim
alleging a denial of procedural due process requires proof of ... constitutionallyinadequate process.” (citing Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir.1994))).
In this case, the Plaintiff argues that Wade violated its right to procedural due process
“when he raided the charitable bingo operation and seized [its] equipment without
first giving notice and providing a hearing.” (Doc. 10 at 5) (emphasis added).
In their initial brief, the Defendants only cite and discuss7 Lord Abbett Mun.
7

In footnote 1 to their initial brief, the Defendants write:

See also Novel Management, Inc. v. Woodward, case no. CV 01-BU-1699-S, 2001
WL 1846798 (N.D. Ala. July 13, 2001); Taylor v. Siegelman, 230 F.Supp.2d 1284
(N.D. Ala. 2002); Department of Texas Veterans of Foreign Wars of the United
States v. Blake Dorning, case no. 07-S-2144-NE, 2009 WL 8741821 (N.D. Ala. Sept.
28, 2009); Set Free Community Development Corp. v. Bentley, case no.
2:11-cv-1802-AKK (N.D. Ala.) (doc. 22, Memorandum Opinion dated Sept. 23,
22

Income Fund, Inc. v. Tyson (Tyson), 671 F.3d 1203 (11th Cir. 2012), and an
unpublished memorandum opinion from this Court, Set Free Community
Development Corp. v. Riley, No. 2:10-CV-1769-VEH, doc. 39 (N.D. Ala.) (Hopkins,
J.), for the proposition that a pre-seizure hearing is not required. However, neither
of those cases dealt with the situation present here, where the appropriate regulatory
and permitting authorities, the Commission and the city, have expressly decided that
the conduct in question was legal. There is no evidence, or allegation, that the
Commission or the city changed their minds, or revoked the applicable permits. The
Defendant has cited no cases which stand for the proposition that the sheriff can
overrule the commission because the sheriff decides that the commission’s decision
to issue the permit was invalid.8 Any future briefing should address these issues.9
2011)[.]
(Doc. 9 at 5, n. 1). The Defendants do not discuss these cases further. However, the Court notes that
these cases also fail to address the situation presented in the instant case.
8

The Court is concerned that the instant case might be more akin to the scenario where a
group is given a permit to conduct a parade down a major city street. While blocking the street is
ordinarily illegal, once a permit is issued could law enforcement shut the parade down, without
notice and the right to be heard, on its belief that the permit was improperly granted? Or, would
it have to seek to have the permit invalidated by the courts? Similarly, can law enforcement
stop permitted construction projects under the theory that building permits, which on their face
appear valid, were not validly issued? Can it shut down a bar because it believes that the
establishment’s liquor license, again appearing valid on its face, was in fact invalidly issued?
9

The Court notes that the Defendants argue for dismissal of Counts One, Two, and
Three by lumping all three Counts together, in less than two pages of their brief, without regard
to the relief requested in each or the Defendants sued. Any future briefing should correct this
error.
23

B.

Count Two – Injunctive Relief
1.

Overview of the Count
a.

The Count Is Brought Against Wade, in his Official
Capacity as Sheriff, and Amerson, Individually

Like Count One, Count Two is not clear. For the same reasons stated in this
Court’s discussion of Count One, the Court assumes that this count is brought against
Wade in his official capacity and against Amerson in his individual capacity.
b.

The Count Seeks Only Injunctive Relief

Count Two seeks the following relief:
62. 3D-LIQ should be granted preliminary and permanent injunctive
relief prohibiting Amerson and those acting in concert or cooperation
with him from removing any bingo-related equipment owned by 3D-LIQ
without first providing the required notice and hearing.
63. 3D-LIQ should be granted preliminary and permanent injunctive
relief requiring Amerson and those acting in concert or cooperation with
him to return all of the bingo-related equipment seized on July 22, 2016.
(Doc. 14 at 12).
c.

The Count Alleges No Specific Deprivation of Rights

Unlike Count One, Count Two alleges no specific violation of a right secured
by the Constitution and laws of the United States, and does not allege that the alleged
deprivation was committed by a person acting under color of state law. Indeed,
Count Two alleges no cause of action at all. Instead, Count Two merely “re-alleges
24

and incorporates by reference the allegations contained in the preceding paragraphs.”
(Doc. 14 at 11, ¶57). The count then pleads the general requirements for injunctive
relief (i.e. “irreparable injury,” “no adequate remedy at law,” etc.).
As noted by the Eleventh Circuit
any motion or suit for either a preliminary or permanent injunction must
be based upon a cause of action, such as a constitutional violation, a
trespass, or a nuisance. “There is no such thing as a suit for a traditional
injunction in the abstract. For a traditional injunction to be even
theoretically available, a plaintiff must be able to articulate a basis for
relief that would withstand scrutiny under Fed.R.Civ.P. 12(b)(6) (failure
to state a claim).” Klay v. United Healthgroup, Inc. 376 F.3d 1092, 1097
(11th Cir.2004). An injunction is a “remedy potentially available only
after a plaintiff can make a showing that some independent legal right
is being infringed—if the plaintiff's rights have not been violated, he is
not entitled to any relief, injunctive or otherwise.” Id. at 1098.
Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005).
Because the Plaintiff failed to allege any cause of action in Count Two, that count is
due to be dismissed.10
C.

Count Three–Declaratory Judgment

This count arises under the Federal Declaratory Judgment Act, 28 U.S.C. §
10

Even if the Court treated Count Two as merely another claim for relief for the Section
1983 claim stated in Count One, it would still be dismissed as to Wade. For the same reasons set
out in this Court's discussion of Count One, the claim in paragraph 63, which seeks only
retrospective relief, fails because it is barred by the Eleventh Amendment. The claim in
paragraph 62, to the extent it is based on “threats” of future seizures, is not plausible because it
lacks factual support. As to Amerson, Count Two is due to be dismissed for the same reasons
stated in this Court's discussion of Count One–because Amerson cannot grant the relief
requested.
25

2201. Like Counts One and Two, Count Three is not clear. For the same reasons
stated in this Court’s discussion of Counts One and Two, the Court assumes that this
count is brought against Wade in his official capacity and against Amerson in his
individual capacity.
In Count Three, the Plaintiff alleges:
67.

3D-LIQ is entitled to a judgment from this Court declaring that:
(a) Sable lawfully opened and lawfully operated the subject
charitable bingo operation; and
(b) Amerson improperly raided Sable’s charitable bingo
operation and improperly seized the bingo-related equipment
owned by 3D-LIQ on July 22, 2016; and
(c) 3D-LIQ was entitled to notice and a hearing prior to the
raid and the seizure of the bingo-related equipment on July 22,
2016.

(Doc. 14 at 13). “The Eleventh Amendment precludes the plaintiff from obtaining
retrospective declaratory . . . relief[.]” Students for Life USA v. Waldrop, 90 F. Supp.
3d 1265, 1275 (S.D. Ala. 2015) (Steele, J.); see also, Green v. Mansour, 474 U.S. 64,
73, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985) (the Eleventh Amendment bars a claim for
declaratory relief when the issuance of such a judgment would have had “much the
same effect as a full-fledged award of damages or restitution by the federal court”);
Summit Medical Assoc., P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir.1999) (“a

26

plaintiff may not use the [Ex parte Young ] doctrine to adjudicate the legality of past
conduct”); Cobb v. Marshall, 481 F. Supp. 2d 1248, 1258 (M.D. Ala. 2007) (“Ex
parte Young . . . does not apply when the declaratory relief pertains only to past
violations of federal law.”) (citing Green and Summit). All of the relief requested in
this Count is retrospective. Accordingly, as to Wade, Eleventh Amendment Immunity
bars this claim.
Additionally, for the same reasons stated in this Court’s discussion of Count
One, Count Three will be dismissed as to Amerson.
D.

Count IV–Damages and Qualified Immunity

This claim is brought only against Amerson. (Doc. 14 at 13, ¶13). Amerson
argues that he is protected by qualified immunity.
Qualified immunity protects government officials sued in their
individual capacities from liability for acting within the scope of their
discretionary authority where their conduct “violates no clearly
established statutory or constitutional rights of which a reasonable
person would have known.” Jordan v. Mosley, 487 F.3d 1350, 1354
(11th Cir. 2007) (quotation marks omitted). The immunity protects “all
but the plainly incompetent or those who knowingly violate the law.” Id.
(quotation marks omitted).
Etherton v. City of Rainsville, No. 15-15147, 2016 WL 5349206, at *5 (11th Cir.
Sept. 26, 2016). As noted by this Court:
Until 2009, the Supreme Court required a two-part inquiry to
determine the applicability of qualified immunity, as established by
27

Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L.Ed. 2d
272 (2001). Under the Saucier test, “[t]he threshold inquiry a court must
undertake in a qualified immunity analysis is whether [the] plaintiff's
allegations, if true, establish a constitutional violation.” Hope v. Pelzer,
536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L.Ed. 2d 666 (2002).
If, under the plaintiff's allegations, the defendant would have
violated a constitutional right, “the next, sequential step is to ask
whether the right was clearly established.” Cottone, 326 F.3d at 1358
(quoting Saucier, 533 U.S. at 201, 121 S. Ct. at 2156). The “clearly
established” requirement is designed to assure that officers have fair
notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122
S. Ct. at 2515. This second inquiry ensures “that before they are
subjected to suit, officers are on notice their conduct is unlawful.”
Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97
L.Ed. 2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106
S. Ct. 1092, 1097-98, 89 L.Ed. 2d 271 (1986)). Therefore, a temporal
requirement exists related to this inquiry. More particularly, a plaintiff
must show that a reasonable public officer would not have believed his
actions to be lawful in light of law that was clearly established at the
time of the purported violation. See Anderson, 483 U.S. at 639, 107 S.
Ct. at 3038 (“[W]hether an official protected by qualified immunity may
be held personally liable for an allegedly unlawful official action
generally turns on the ‘objective legal reasonableness' of the action[,]
assessed in light of the legal rules that were ‘clearly established’ at the
time it was taken[.]”) (emphasis added) (citation omitted); Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L.Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer's
conduct would violate the Constitution, the officer should not be subject
to liability or, indeed, even the burdens of litigation.”) (emphasis
added); Brosseau, 543 U.S. at 198, 125 S. Ct. at 599 (“Because the focus
is on whether the officer had fair notice that her conduct was unlawful,
reasonableness is judged against the backdrop of the law at the time of
the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d
28

1087, 1093 (11th Cir. 1996) (“We know of no [preexisting] case which
might have clearly told Clifton that he could not take the disciplinary
action indicated by an investigation which was initiated before he even
knew about the allegedly protected speech, and in circumstances where
the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the
Supreme Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct.
808, 818, 172 L.Ed. 2d 565 (2009), in which the Court concluded that,
“while the sequence set forth [in Saucier] is often appropriate, it should
no longer be regarded as mandatory.” Thus, “judges of the district courts
and the courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand.” Id.
Despite the Supreme Court's modification of Saucier's analytical
process, the substantive analysis remains unchanged; an officer is
entitled to qualified immunity protection as long as he “could have
believed” his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227,
112 S. Ct. 534, 536, 116 L.Ed. 2d 589 (1991).Therefore, to deny
immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley
v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L.Ed. 2d 271
(1986).
Pressley v. City of Anniston & Daryl Abernathy, No. 1:14-CV-1029-VEH, 2016 WL
4679135, at *16–17 (N.D. Ala. Sept. 7, 2016).
The Plaintiff argues that Amerson violated its right to a pre-seizure hearing and
that that right was clearly established. (Doc. 10 at 16, and n. 8).11 The Court has

11

During the hearing, the Plaintiff argued that the issue of whether this law was “clearly
established” was not raised by Amerson. (Doc. 24 at 38). However, it was raised by the Plaintiff
in its brief. (See, doc. 10 at 16, n. 8 (“Plaintiffs’ constitutional rights were violated when
29

reviewed the parties’ briefs on that issue, and has done its own research, and
determines that, at the very least, it was not clearly established that the Plaintiff was
entitled to such a hearing. See, Lord Abbett Mun. Income Fund, Inc. v. Tyson
(Tyson), 671 F.3d 1203 (11th Cir. 2012); Set Free Community Development Corp. v.
Riley, No. 2:10-CV-1769-VEH, doc. 39 (N.D. Ala.) (Hopkins, J.).; Novel
Management, Inc. v. Woodward, case no. CV 01-BU-1699-S, 2001 WL 1846798
(N.D. Ala. July 13, 2001); Set Free Community Development Corp. v. Bentley, case
no. 2:11-cv-1802-AKK (N.D. Ala.).
Regardless, in this case the parties agree that Amerson obtained a warrant prior
to seizing the property, and there has been no attack on the validity of that warrant.
“Where an arrest warrant was facially valid and was executed in good faith and with
probable cause, officers are entitled to qualified immunity.” Rodriguez v. Brown, No.
1:13–CV–03633–RWS, 2014 WL 2809002, at *4 (N.D. Ga. June 20, 2014) (citing
Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir.1984) (qualified immunity
appropriate for sheriff who acted pursuant to facially valid search and arrest warrants
and uncontroverted evidence showed that said warrants were executed in good faith
and with probable cause)); Willis v. Arp, 165 F. Supp. 3d 1357, 1362 (N.D. Ga.

Amerson failed to provide pre-seizure notice and a hearing and such a right was clearly
established in this case.”)).
30

2016) (“[I]f the arrest warrant was facially valid, [the officer] is entitled to qualified
immunity.”).
The Plaintiff cites to the following cases as examples where a “court has . . .
found a Fourteenth Amendment violation where police officers were operating under
a warrant:” United States v. James Daniel Good Real Prop. (Good), 510 U.S. 43, 52,
114 S. Ct. 492, 500 (1993); Cochran v. Folger, 740 F. Supp. 2d 923, 928, 934 (E.D.
Ky. 2010); and Leslie Tobin Imports, Inc. v. Rizzo, 305 F. Supp. 1135, 1140 (E.D. Pa.
1969). Good does not discuss qualified immunity at all, much less in the context of
a facially valid warrant.12 Neither does Rizzo. Cochran and Rizzo are non-binding
district court opinions from outside the Eleventh Circuit. Accordingly, they do not
consider the Eleventh Circuit precedent cited above. Further, in Cochran the warrant
was deficient on its face. See, Cochran v. Folger, 740 F. Supp. 2d 923, 936 (E.D. Ky.
2010), aff'd in part sub nom. Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011) (“Any
deputy sheriff familiar with the facts and procedures necessary for the seizure of
property in the context of an eviction or the enforcement of a judgment would have
realized that the proper procedures were not followed. At the very least, it should
have been apparent to a reasonable deputy sheriff that no amount owed was specified

12

At the hearing, Plaintiff’s counsel admitted that Good was not a qualified immunity
case. (See, doc. 24 at 37) (“Was the Daniel Good case a qualified immunity case?” MS. SIPES:
No, Your Honor.”).
31

in the warrant. In fact, the Warrant for Possession was silent as to any award of fees,
costs or rent and did not mention personal property at all. Under such circumstances,
a reasonable person in the deputy sheriff's position would have or should have known
that Cochran's due process rights were being violated.”). No such allegation has been
made in this case. Because Amerson acted pursuant to a warrant, whose validity has
not been attacked, he is entitled to qualified immunity.
IV.

CONCLUSION
For the reasons stated herein, it is hereby ORDERED, ADJUDGED, and

DECREED as follows:
1.

The Defendants’ motion to dismiss is GRANTED.

2.

All claims asserted in the Amended Complaint against Amerson are
hereby DISMISSED with prejudice.

3.

All claims asserted in the Amended Complaint against Wade are
DISMISSED without prejudice. No later than March 16, 2017, the
Plaintiff may amend its complaint again to correct the deficiencies set
out in this opinion.

DONE and ORDERED this 24th day of February, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge
32