3D-LIQ, LLC et al v. Amerson

Filing 33

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/28/2017. (JLC)

FILED
2017 Aug-28 AM 10:57
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
In this Court’s Memorandum Opinion and Order dated February 24, 2017, this
Court dismissed all claims against all Defendants. (Doc. 26 at 32). In doing so, it also
held:
Because the Plaintiff has failed to plausibly allege “a threat of future
enforcement that may be remedied by prospective relief” [Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1338 (11th Cir. 1999)], 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. 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.
(Doc. 26 at 21) (footnotes omitted). On March 16, 2017, the Plaintiff filed a “Second
Amended Complaint,” which did not correct the deficiency noted above. (Doc. 27).

For that reason alone, the Motion To Dismiss is due to be granted.
Furthermore, the Second Amended Complaint has dropped all claims for
prospective injunctive relief, and now seeks only “preliminary and permanent
injunctive relief requiring the Sheriff and those acting in concert or cooperation with
him to return all of the bingo-related equipment seized on July 22, 2016.” (Doc. 27
at 10, ¶54).1 As noted by the Defendant in its motion (doc. 28 at 4-5), the Court has
already held that this exact request for retrospective relief is barred by the Eleventh
Amendment. (See doc. 26 at 24-25, and n. 10).
In its brief in response to the motion, the Plaintiff does not address the fact that
the Court has already found that this relief is barred. Instead, it argues that it has
satisfied the requirement of alleging “an ongoing and continuous violation of federal
law,” because it alleges “the Sheriff[’s] continued possession of 3D’s equipment.”
(Doc. 31 at 5-6). However, as noted in this Court’s previous opinion, “‘a plaintiff may
not use the [Ex Parte Young] doctrine to adjudicate the legality of past conduct.’”
(Doc. 26 at 15) (quoting Summit Medical, 180 F.3d at 1337)). The order the Plaintiff
seeks from this Court would necessarily require it to invalidate the (past) taking of
the property in the first place. Accordingly, the Court cannot grant the relief

1

The Second Amended Complaint also seeks “attorneys’ fees pursuant to 42 U.S.C. §
1988; and such other and further relief that this Court deems just and appropriate.” (Doc. 27 at
10).
2

requested.2
Accordingly, for the reasons stated herein, and in this Court’s Memorandum
Opinion and Order of February 24, 2017 (doc. 26), the Motion To Dismiss will be
GRANTED. A Final Order will be entered.
DONE and ORDERED this 28th day of August, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

2

The Plaintiff cites, and discusses in great detail, the Second Circuit’s opinion in
Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) (see doc. 31 at 7-11) , a case which did not
discuss Eleventh Amendment immunity. Accordingly, the court does not find it to be persuasive.
3