Fairfield Community Clean Up Crew Inc v. Hale et al

Filing 29

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/27/2017. (PSM)

FILED
2017 Oct-27 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FAIRFIELD COMMUNITY
CLEAN UP CREW, INC.,
Plaintiff,
vs.
MIKE HALE, in his official
capacity as Jefferson County
Sheriff, et al.,
Defendants.

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2:17-cv-00308-LSC

Memorandum of Opinion
Before the Court is Sheriff Mike Hale (“Sheriff Hale”) and Attorney
General

Steve

Marshall

(“Attorney

General

Marshall”)

(collectively

“Defendants”)’s Motion to Dismiss the Amended Complaint or, in the
Alternative, Motion for Summary Judgment. (Doc. 19.) For the reasons explained
herein, Defendants’ motion is due to be GRANTED in PART and DENIED in
PART.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Fairfield Community Clean-Up Crew, Inc. (“Community”) is an
Alabama non-profit corporation and charitable organization organized under the
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Fairfield Municipal Bingo Ordinance No. 1024G. (Doc. 18 ¶ 2.) Sheriff Hale is the
Sheriff of Jefferson County and Attorney General Marshall is the Attorney General
for the State of Alabama. (Doc. 18 ¶ 12; Doc. 19 ¶ 1.) Defendants informed
Community that it was in violation of Alabama law because of its operation of
illegal gambling devices and slot machines and ordered Community to cease its
bingo operations. (Doc. 18 ¶ 19.) On February 24, 2017, Defendants executed a
search warrant on Community’s bingo facility and seized Community’s property
from that location. (Doc. 18 ¶ 18.) Later that same day, Community instituted this
action against Defendants. (Doc. 1; Doc. 19 ¶ 14, Ex. 2.)
A. ALABAMA CONSTITUTIONAL AMENDMENTS AND FAIRFIELD’S
ORDINANCES PERTAINING TO COMMUNITY’S CLAIMS
Article IV, § 65 of the Alabama Constitution generally prohibits lotteries,
including bingo, in the State of Alabama. See Barber v. Cornerstone Cmty. Outreach,
Inc., 42 So. 3d 65, 78-79 (Ala. 2009). Section 65 provides:
The legislature shall have no power to authorize lotteries or gift
enterprises for any purposes, and shall pass laws to prohibit the sale in
this state of lottery or gift enterprise tickets, or tickets in any scheme
in the nature of a lottery; and all acts, or parts of acts heretofore
passed by the legislature of this state, authorizing a lottery or lotteries,
and all acts amendatory thereof, or supplemental thereto, are hereby
avoided.
ALA. CONST. OF 1901, art. IV, § 65. Amendments to the Alabama Constitution of
1901 allow bingo in certain counties by creating exceptions to the general
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prohibition of “lotteries” in § 65. One such amendment, Amendment 386, allows
bingo in Jefferson County. See Chorba-Lee Scholarship Fund, Inc. v. Hale, 60 So. 3d
279, 280 (Ala. 2010). Amendment 386, as amended by Amendment 600, states:
The operation of bingo games for prizes or money by nonprofit
organizations for charitable or educational purposes shall be legal in
Jefferson County, subject to the provisions of any resolution or
ordinance by the county governing body or the governing bodies of the
respective cities and towns, within their respective jurisdictions. The
said governing bodies shall have the authority to promulgate rules and
regulations for the licensing and operation of bingo games, within their
respective jurisdictions . . .
ALA. CONST. OF 1901 amends. 386, 600.
Pursuant to Amendments 386 and 600, the City of Fairfield enacted the City
of Fairfield Bingo Ordinance (the “Bingo Ordinance”) establishing rules and
licensing procedures for the operation of bingo within the city. (See Doc. 18 Ex. A.)
The Bingo Ordinance defines “bingo” and “bingo games” and specifically refers
to the use of electronic devices to play bingo:
To the extent that the foregoing elements are present in the game of
bingo, it can be played with different kinds of equipment varying from
one end of the spectrum, where traditional cards displaying the
playing grids are used with tokens to cover the designated square on
the grids, to the technologically advanced end of the spectrum,
whether electronic devices perform the operation of the game using
computers or micro processors and interact with the human players by
means of an electronic console.
FAIRFIELD, ALA., Ordinance No 1024G, § 2 (2011).
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B. COMMUNITY’S ELECTRONIC BINGO OPERATIONS
Community obtained a license from the City of Fairfield and opened a
“bingo” establishment that included the use of electronic bingo. (Doc. 18 ¶¶ 2, 15.)
Community has maintained that the operation of the bingo establishment,
including electronic bingo, was legal under its interpretation of the above-quoted
constitutional amendments and the Bingo Ordinance. (Doc. 18 ¶ 15.)
On February 23, 2017, a Jefferson County District Court Judge issued a
search warrant for the facility where Community conducted its bingo operations.
(Doc. 18 ¶ 17.) The warrant further commanded the seizure of (1) any U.S.
currency or (2) evidence of violation of Alabama Constitutional Amendments 386
and 600 and Ala. Code § 13a-12-20 et seq. relating to illegal gambling. (Doc. 18 ¶ 17;
Doc. 19 Ex. 1.) The following day, February 24, 2017, the Jefferson County
Sheriff’s Office executed a search warrant on the bingo facility and seized
Community’s electronic bingo machines as well as other property. (Doc. 19 Ex. 2.)
Also on February 24, 2017, but later in the day, Community filed this action.
(Compare Doc. 1 at 1 (filing time of 3:12 PM) with Doc. 19 Ex. 2 (Search Warrant
Worksheet listing “time entered” at 8:30 AM).) While Community requested a
Temporary Restraining Order (“TRO”) on February 24, 2017, the parties agreed

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the motion was moot when filed given the execution of the search warrant earlier
that day. (See Doc. 6.)
Following the seizure of Community’s bingo equipment, the District
Attorney for Jefferson County filed a civil petition styled State of Alabama ex rel.
Washington v. Harris, CV-2017-900185, on March 6, 2017 in the Circuit Court of
Jefferson County. The district attorney sought the condemnation and forfeiture of
the alleged illegal gambling devices that were seized pursuant to the February 24,
2017 search of Community’s bingo facility. (Doc. 19 Ex. 3.) The petition
specifically asked the court to find that the devices seized during execution of the
warrant were in violation of Alabama law. (Id.) At the time of this Memorandum of
Opinion, the state-court civil forfeiture action is still pending.
II.

STANDARD OF REVIEW

Defendants raise sovereign immunity and ripeness challenges. To the extent
the Court has jurisdiction, Defendants argue it should abstain from hearing
Community’s claims under the Younger abstention doctrine. 1 (Doc. 19 at 2.) Both
the sovereign immunity and ripeness defenses pose jurisdictional questions, so in
that respect this motion is governed by Federal Rule of Civil Procedure 12(b)(1).
1

Defendants ask in the alternative for this Court to dismiss Community’s amended complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. However, because the
Court finds it should abstain from hearing Community’s claims under Younger, it does not look to
whether Community has failed to state a claim.

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See Digital Props. v. City of Plantation, 121 F.3d 586, 591 (11th Cir.1997) (ripeness);
Bennett v. United States, 102 F.3d 486, 488 n.1 (11th Cir. 1996) (sovereign
immunity). The burden of proof on a Rule 12(b)(1) motion is on the party averring
jurisdiction. Thomson v. Gaskill, 315 U.S. 442, 446 (1942).
A “facial attack” on the complaint asks the Court to determine whether the
plaintiff has alleged a basis for subject matter jurisdiction and takes the allegations
in the complaint as true for the purposes of the motion. Stalley ex rel. U.S. v.
Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008). On the
other hand, a “factual attack” challenges the existence of subject matter
jurisdiction using material extrinsic to the pleadings, such as affidavits or
testimony. Id. at 1233. “Since such a motion implicates the fundamental question
of a trial court’s jurisdiction, a ‘trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case’ without presuming the
truthfulness of the plaintiff’s allegations.” Makro Capital of Am., Inc. v. UBS AG,
543 F.3d 1254, 1258 (11th Cir. 2008) (quoting Morrison v. Amway Corp., 323 F.3d
920, 925(11th Cir. 2003)). Here, Defendants rely on a number of exhibits submitted
with their motion to dismiss, the Court thus construes Defendants’ motion as a
“factual attack.”
III.

DISCUSSION
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Community’s claims for relief implicate the limits of the Court’s subject
matter jurisdiction under the Eleventh Amendment and ripeness doctrine. After
determining it has subject matter jurisdiction over some of these claims, the Court
then finds that it should abstain from hearing Community’s remaining claims under
the Younger doctrine.
A. ELEVENTH AMENDMENT IMMUNITY
The Eleventh Amendment generally grants state officials sued in their
official capacities immunity from suits brought by private citizens. See U.S. CONST.
AMEND.

XI; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984).

States can waive their Eleventh Amendment immunity. Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Alabama has not
waived its sovereign immunity. See id.; see also ALA. CONST. OF 1901, art. I, § 14
(“[T]he State of Alabama shall never be made a defendant in any court of law or
equity.”). The Eleventh Circuit has held that the Attorney General and County
Sheriffs of Alabama are state officials protected from suit under the Eleventh
Amendment. Melton v. Abston, 841 F.3d 1207, 1234 (11th Cir. 2016) (Eleventh
Amendment immunity applies to Alabama Sheriffs); Summit Med. Assocs., P.C. v.
Pryor, 180 F.3d 1326, 1336-40 (11th Cir. 1999) (discussing Eleventh Amendment
immunity’s application to suits against Alabama Attorney General).
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Congress can also abrogate Eleventh Amendment immunity in certain
situations. Fla. Prepaid, 527 U.S. at 670. “Congress can abrogate [E]leventh
[A]mendment immunity without the state’s consent when it acts pursuant to the
enforcement provisions of section 5 of the fourteenth amendment.” Carr v. City of
Florence, 916 F.2d 1521, 1524 (11th Cir. 1990) (citing Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 238 (1985)). While Congress has the power to do so, it has
never abrogated Eleventh Amendment immunity in § 1983 cases. Carr, 916 F.2d at
1525 (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)).
The doctrine of Ex Parte Young also provides a long-recognized exception to
state official immunity where the claimant seeks prospective equitable relief to end
continuing violations of federal law. 209 U.S. 123 (1908); see Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004); Fla. Ass’n of Rehab. Facilities, Inc. v. State of
Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (“[T]he
Eleventh Amendment does not generally prohibit suits against state officials in
federal court seeking only prospective injunctive or declaratory relief.”). In order
for the doctrine of Ex parte Young to apply, the Court must determine whether (1)
the “complaint alleges an ongoing violation of federal law” and (2) “seeks relief
properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 645 (2002). The limits of the doctrine arise where the claimant
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alleges ongoing violations of state rather than federal law. Pennhurst, 465 U.S. 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.
Such a result conflicts directly with the principles of federalism that underlie the
Eleventh Amendment.”); see also Steffel v. Thompson, 415 U.S. 452, 475 (1974)
(“We therefore hold that, regardless of whether injunctive relief may be
appropriate, federal declaratory relief is not precluded when no state prosecution is
pending and a federal plaintiff demonstrates a genuine threat of enforcement of a
disputed state criminal statute, whether an attack is made on the constitutionality
of the statute on its face or as applied.”).
The availability of the Ex parte Young doctrine first turns on whether
Community seeks retrospective or prospective relief. In the “Claims” section of its
Amended Complaint, Community argues Defendants are continuing ongoing
violations of the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment. (Doc. 18 at 8-9.) Community has couched its equal
protection injuries as follows: “[t]he State of Alabama has disparately applied
gaming laws to tribal and non-tribal citizens” and “Defendants have disparately
applied the provisions of the Alabama Criminal Code to bingo and pari-mutuel
betting operations.” (Doc. 18 ¶¶ 45-46.) It further alleges a violation of due
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process: “That seizing the electronic bingo machines without issuing a hearing will
deprive Community [of] their liberty or property interests in the Alabama state
courts of due process of law.” (Id. ¶ 50.) Community has clearly stated in this
section what injuries it has suffered.
Also in its “Claims” section, Community asks for “relief” under 42 U.S.C.
§ 1983 against Sheriff Hale and Attorney General Marshall, but only vaguely
indicates what kind of relief it seeks under that statute. (See Doc. 18 ¶ 47
(“Community’s [sic] move for relief on this [Fourteenth Amendment Equal
Protection] claim directly under the Constitution and as an action seeking redress
of the deprivation of statutory rights under the color of state law, also under 42
U.S.C. § 1983”); id. ¶ 51 (“Plaintiff moves for relief on this [Fourteenth
Amendment Due Process] claim as an action seeking redress of the deprivation of
statutory rights under the color of state law, also under 42 U.S.C. § 1983.”).) In its
response to Defendants’ motion to dismiss, Community states that it only alleges
ongoing violations of federal constitutional law. (See Doc. 24 at 13.)2 Any claim
made by Community for retrospective relief against Sheriff Hale and Attorney
General Marshall is clearly barred by the Eleventh Amendment.

2

Any references to Doc. 24’s pagination refer to that assigned by PACER.

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Community then goes on in a “Counts” section of its Amended
Complaint—which is separate from the “Claims” section—to ask for specific
prospective relief, but also to allege injuries entitling it to that relief which differ
from those injuries in its “Claims” section. (Doc. 18 at 52-57.) Community’s first
count asks for a temporary restraining order, which has been mooted by agreement
of the parties as reflected in this Court’s March 1, 2017 Order. (Doc. 6.) The
remaining two counts, however, receive detailed attention below.
Count Two, “Requests for Preliminary Injunction” states the following
injuries and requested relief:
55. WHEREFORE, Plaintiff respectfully requests this Court [for] the
following:
a. To issue an immediate preliminary injunction enjoining the
Defendants from interfering with or closing their charity bingo
operations on any pretext. If preliminary injunction is not granted,
Community will be caused to suffer immediate and irreparable
injury, harm and/or damage. Additionally, Plaintiff has no other
adequate remedy at law, the balance of harm favors the
Community, Community is likely to prevail on the underlying
issues and public interests favor the granting of said relief.
b. To issue an immediate preliminary injunction enjoining the
Defendants from enforcing all provisions of the Alabama Criminal
Code on all bingo operations under Alabama’s bingo constitutional
amendments. If a preliminary injunction is not granted,
Community will be caused to suffer immediate and irreparable
injury, harm and/or damage. Additionally, Plaintiff has no other
adequate remedy at law, the balance of harm favors the Plaintiff
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and Plaintiff is likely to prevail on the underlying issues and
public interests favor the granting said relief.
(Doc. 18 ¶ 55 (emphasis added).) Subsection “a” asks for relief in the form of a
preliminary injunction, but does not specifically state the basis outside of a
reference to “pretext.” This could seemingly refer to the earlier equal protection
or due process arguments. Subsection “b” can be read in harmony with the earlier
“Claims” section to the extent that Community alleges Alabama has disparately
applied the Alabama Criminal Code to bingo and pari-mutuel betting operations,
which Community alleges is a violation of Equal Protection. (Compare Doc. 18 ¶ 46
with id. ¶ 55.)
Count Three, “Request for Declaratory Relief and Preliminary Injunction” 3
states the following injuries and requested relief:
57. WHEREFORE, Community respectfully requests this Court [for]
the following:
a. To enter a judgment declaring that Community is operating its
charity bingo facility in accordance with the bingo ordinance and that
the bingo ordinance is enforceable under the Amendment so that any
attempt to interfere with or to cause the cessation of Community’s
charity bingo operations would violate federal law.
b. To enter a judgment declaring that all bingo operations under
Alabama’s bingo constitutional amendments are exempt from the
general prohibition of the Alabama Criminal Code so that any
3

It appears that Community intended to ask in Count Three for a permanent, not preliminary,
injunction.

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attempt to enforce these provisions on these bingo operations
would violate federal law.
c. To enter a permanent injunction against the State of Alabama
prohibiting them from interfering with Community’s lawful charity
bingo operations.
d. To enter a permanent injunction prohibiting the Defendants
from enforcing all provisions of the Alabama Criminal Code on all
bingo operations under Alabama’s bingo constitutional
amendments. . . .
(Doc. 18 ¶ 57 (emphasis added).) The relief asked for in Count Three, which
revolves around the interpretation of state law, cannot be read in harmony with the
federal constitutional injuries identified in the “Claims” section. Subsection “a”
blatantly asks the Court to declare Community’s bingo operation lawful under
Alabama law “so that any attempt to interfere with or to cause the cessation of
Community’s charity bingo operations would violate federal law.” (Id.¶ 57(a).) It is
unclear how federal law is implicated in the interpretation of Community’s bingo
operation, even if the Court gave the asked-for relief and declared Community’s
bingo operation legal under Alabama law. Brown v. Georgia Dep’t of Revenue, 881
F.2d 1018, 1023 (11th Cir. 1989) (holding that the determinative issue on whether
prospective injunctive relief against a state official is barred by the Eleventh
Amendment immunity under Pennhurst “is not the relief ordered, but whether the
relief was ordered pursuant to state or federal law.”). While the Defendants would
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violate federal law by disobeying this Court’s order if it gave the relief stated in
Subsection “a”, the order itself would still be under state law. See id. at 1024 (Since
the relief granted was based on a violation of state and federal due process, it is
immaterial whether the Court ordered the hearing to comply with state personnel
rules as the violation was in part of federal law.). Community’s creative prayer for
relief does not obscure the bare fact that it asks for this Court to declare the
Defendants’ actions a violation of state, not federal law. This it cannot do.
Pennhurst, 465 U.S. at 106; see also Lord Abbett Mun. Income Fund, Inc. v. Tyson,
2011 WL 197959, at *13 (M.D. Ala. Jan. 20, 2011) (refusing under the Eleventh
Amendment to grant injunctive and declaratory relief against State of Alabama for
enforcement of state gambling laws where basis for relief was in state, not federal
law). The same goes for the declaratory relief asked for in subsection “b”;
regardless of any references to federal law, Community is asking the Court to
declare an ongoing violation of Alabama law, which is clearly barred by the
Eleventh Amendment. Pennhurst, 465 U.S. at 106. The Court cannot grant
declaratory relief under either subsection.
Subsection “c” asks the Court to enjoin the State of Alabama from
interfering with Community’s “lawful” bingo operation. (Id.¶ 57(c).)

The

“lawfulness” of the bingo operation that is being challenged by Community is a
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matter of state law; the United States Constitution does not protect bingo. The
Court cannot enjoin Defendants under Pennhurst in this manner because
Community is ultimately arguing Defendants’ enforcement actions are based on an
erroneous reading of state law. 465 U.S. at 106. The same Eleventh Amendment
protections apply to the relief requested in subsection “d,” as Community again
asks for prospective relief of a violation of the Alabama Constitution. Id. The Court
cannot enjoin the Defendants for any of the injuries stated under Count Three
because the Ex parte Young exception to Eleventh Amendment protections does not
apply to violations of state law.
The Eleventh Amendment does not serve to totally cut off all of
Community’s claims. To the extent that Community can show a prospective
violation of federal law by Defendants’ actions, it has passed this first jurisdictional
hurdle. The Court identifies three claims that require further attention: (1)
Defendants have disparately applied gaming laws to tribal and non-tribal citizens;
(2) Defendants have disparately applied the provisions of the Alabama Criminal
Code to bingo and pari-mutuel betting operations; and (3) Defendants’ seizure of
electronic bingo machines without a hearing deprives Community of their liberty or
property interests without due process of law. (Doc. 18 ¶¶ 45-46, 50.)
B. RIPENESS OF COMMUNITY’S DUE PROCESS CLAIM
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Article III of the United States Constitution permits federal courts to
adjudicate “cases or controversies of sufficient concreteness to evidence a ripeness
for review.” Digital, 121 F.3d at 590; see also U.S. CONST. art. III, § 2 cl. 1 et seq.
When assessing whether a claim is ripe for judicial review, courts must take both
constitutional and prudential concerns into consideration. A claim for relief is not
ripe for adjudication when it rests upon “contingent future events that may not
occur as anticipated . . . .” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568,
580-81 (1985). Engaging in a “[s]trict application of the ripeness doctrine prevents
federal courts from rendering impermissible advisory opinions and wasting
resources through review of potential or abstract disputes.” Nat’l Advertising Co. v.
City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (citing Digital, 121 F.3d at 589).
The ripeness determination “goes to whether the district court ha[s] subject
matter jurisdiction to hear the case.” Digital, 121 F.3d at 591 (citing Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.7 (11th Cir. 1989).
Defendants bring a two-pronged attack as to Community’s claim that they
have violated due process in their seizure of its gambling equipment: any due
process claim based on a lack of pre-seizure hearing fails as a matter of law, where
any claim based around defects in the post-seizure hearing is unripe. (Doc. 19 at
18.) Defendants specifically state that Community’s post-seizure due process claim
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fails because the state civil forfeiture case is ongoing. (Id. at 19.) The Court
addresses the post-seizure hearing here, as ripeness is a threshold matter of subject
matter jurisdiction. While the Court ultimately finds that the ripeness doctrine
does not bar Community’s post-seizure due process claims, it does so because
Eleventh Circuit precedent commands dismissal of Community’s due process
claims with prejudice under Federal Rule of Civil Procedure 12(b)(6). See Horton v.
Board of Cty. Comm’rs of Flagler Cty., 202 F.3d 1297, 1301-02 (11th Cir. 2000).
The Due Process Clause of the Fourteenth Amendment encompasses a
guarantee of fair procedure. Where a § 1983 action may be sustained for a violation
of procedural due process, the determinative question is not whether the Plaintiff is
deprived by state action of an interest in life, liberty, or property; what is
unconstitutional is when the plaintiff is deprived of those interests without due
process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). The:
constitutional violation actionable under § 1983 is not complete when
the deprivation occurs; it is not complete unless and until the State
fails to provide due process. Therefore, to determine whether a
constitutional violation has occurred, it is necessary to ask what
process the State provided, and whether it was constitutionally
adequate. This inquiry would examine the procedural safeguards built
into the statutory or administrative procedure of effecting the
deprivation, and any remedies for erroneous deprivations provided by
statute or tort law.

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Id. at 126. Under Zinermon’s construction of procedural due process violations,
McKinney v. Pate held that where a plaintiff sues in federal court alleging
constitutionally deficient procedural failings in an administrative action, but does
not take advantage of state remedies before doing so, that he has failed to state a
claim. 20 F.3d 1550, 1557, 1566-67 (11th Cir. 1994) (en banc). In holding so,
McKinney made unfortunate allusions to the “ripeness” of procedural due process
claims. Id. at 1560. Subsequently, Horton restated McKinney’s holding: where state
law provides an adequate remedy for the type of procedural deprivation that a
plaintiff claims to suffer, ripeness is not implicated. 202 F.3d 1297, 1301 (11th Cir.
2000) (“[W]e did not tell McKinney his federal claim was unripe and dismiss it
without prejudice to his pursuing that claim in state court. Instead, we told him that
he lost.”). Horton further shows decisions after McKinney also dismissed similar
actions on a plaintiff’s failure to state a claim and not on ripeness grounds:
The district court in this case cited the panel decision in Flint Electric
Membership Corp. v. Whitworth, 68 F.3d 1309, 1313-14 (11th Cir.1995).
That opinion originally contained the following sentence: “It has also
become evident, in light of McKinney, that the EMCs’ procedural due
process claims are not ripe for review.” Id. at 1313. That sentence was
withdrawn on rehearing, however, and the Flint panel substituted for
it the following one: “It has also become evident, in light of McKinney,
that the EMCs failed to state a procedural due process claim.” Flint
Electric Membership Corp. v. Whitworth, 77 F.3d 1321 (11th Cir.1996)
(on rehearing). In other words, like the district court in this case, the
Flint panel initially misread McKinney as a ripeness decision, but the
panel corrected that mistake on rehearing and modified its opinion to
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indicate that McKinney has to do with whether a procedural due
process claim has been stated at all.
Horton, 202 F.3d at 1301 n.4.
Like the district court in McKinney and the original panel decision in Flint,
Defendants’ ripeness argument unfortunately misunderstands McKinney to
command dismissal of Community’s claims on ripeness grounds. Defendants argue
that Community’s due process violation is unripe because there are adequate state
procedures available to Community to address its claims and that Community has
not been finally deprived of its property. Community’s failure to utilize adequate
state procedure is exactly the situation discussed in McKinney, Flint, and Horton; all
three decisions held their respective plaintiff’s failed to state a claim. The Court
finds that Community’s claim for violation of due process is ripe. See McKinney, 20
F.3d at 1566-67; see also Horton, 202 F.3d at 1301. It does not dismiss this claim
under Federal Rule of Civil Procedure 12(b)(6) because it ultimately abstains from
hearing Community’s claims under Younger.
C. YOUNGER ABSTENTION
Finally, this Court must determine whether matters of comity and federalism
require it to abstain from hearing this case in favor of the current state-court
proceedings. While federal courts have a “virtually unflagging obligation,” Deakins
v. Monaghan, 484 U.S. 193, 203 (1988) (citation omitted), to adjudicate claims
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within their jurisdiction, “there are some classes of cases in which the withholding
of authorized equitable relief because of undue interference with state proceedings
is ‘the normal thing to do.’” New Orleans Pub. Serv., Inc. v. Council of City of New
Orleans (“NOPSI”), 491 U.S. 350, 359 (1989) (quoting Younger v. Harris, 401 U.S.
37, 45 (1971). Younger identified one such class, holding a federal court should
abstain from hearing a case where doing so would interfere with ongoing state
proceedings. 401 U.S. 37. Although Younger concerned state criminal proceedings,
its principles are “fully applicable to noncriminal judicial proceedings when
important state interests are involved.” 31 Foster Children v. Bush, 329 F.3d 1255,
1274 (11th Cir. 2003) (quoting Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 432 (1982)). NOPSI elaborated on the specific “exceptional
circumstances” where Younger abstention is proper. 491 U.S. at 367-68. Sprint
Communications, Inc. v. Jacobs summarizes those exceptional circumstances:
First, Younger precluded federal intrusion into ongoing state criminal
prosecutions. Second, certain “civil enforcement proceedings”
warranted abstention. Finally, federal courts refrained from interfering
with pending “civil proceedings involving certain orders . . . uniquely
in furtherance of the state courts’ ability to perform their judicial
functions.”
134 S. Ct. 584, 591 (2013) (internal citations omitted).
There does not appear to be post-NOPSI Eleventh Circuit precedent holding
that a court should abstain under Younger while state civil forfeiture proceedings of
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the type instituted by Defendants are pending. The Court is nonetheless satisfied
that the current civil forfeiture action styled State of Alabama v. Harris, et al.
constitutes “civil enforcement proceedings” meriting abstention as exemplified in
Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975). See NOPSI, 491 U.S. at 367-68
(citing Huffman as exemplar of “civil enforcement proceeding”). Huffman held
Younger abstention was proper where appellants had sued appellees in Ohio state
court under a public nuisance statute for their operation of theater showing obscene
films. 420 U.S. at 611. The public nuisance statute provided among other remedies
seizure and sale of personal property used in appellee’s operation. Appellees then
instituted a federal action, seeking injunctive and declaratory relief against
enforcement of the statute. Id. at 598. Younger abstention was appropriate because
the public nuisance suit was “in important respects is more akin to a criminal
prosecution . . . . and the proceeding [wa]s both in aid of and closely related to
criminal statutes which prohibit the dissemination of obscene materials.” Id. at
604. While the lower court’s injunction had not directly disrupted Ohio’s criminal
justice system, “it has disrupted that [s]tate’s efforts to protect the very interests
which underlie its criminal laws and to obtain compliance with precisely the
standards which are embodied in its criminal laws.” Id. at 605.

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The currently pending civil forfeiture proceeding against Community and
other defendants involves the same concerns as the nuisance action in Huffman.
Like in Huffman, where Ohio attempted to enforce its criminal laws against the
appellants through a nuisance action, here the Alabama is attempting to enforce its
criminal laws against illegal gambling, see Ala. Code. § 13a-12-20 et seq., by means of
a civil forfeiture action that has as a prerequisite a finding that the res was
“possessed or used in violation of [Ala. Code. § 13a-12-20 et seq.]” (See Doc. 19 Ex.
3 ¶¶ 3-5.); see also Ala. Code. § 13a-12-30(a) (“Any gambling device or gambling
record possessed or used in violation of this article is forfeited to the state, and shall
by court order be destroyed or otherwise disposed of as the court directs.”).
Entertaining this action would disrupt Alabama’s “efforts to protect the very
interests which underlie its criminal laws and to obtain compliance with precisely
the standards which are embodied in its criminal laws.” Huffman, 420 U.S. at 605.
Under Middlesex, a Court must satisfy itself of three elements before it
applies the Younger doctrine: “first, do [the proceedings] constitute an ongoing
state judicial proceeding; second, do the proceedings implicate important state
interests; and third, is there an adequate opportunity in the state proceedings to
raise constitutional challenges.” 31 Foster Children, 329 F.3d at 1274 (quoting

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Middlesex, 457 U.S. at 432). The parties disagree on the existence of all three
elements, so the Court looks at each in turn.
i.

THERE IS AN ONGOING STATE JUDICIAL PROCEEDING

Community is a named defendant having a property interest in the seized
property that is the subject of the civil forfeiture action pending in the Civil Court
of Jefferson County, Alabama. See Alabama v. Harris, et al., cv-2017-900185 (2017);
(Doc. 19 Exs. 3-4). The seized property in that case is the same as the property in
dispute here.
Community challenges the “ongoing” nature of Alabama v. Harris, et al.,
arguing that at the time of filing of the present action the state proceeding was not
pending. Steffel stated that federal courts do not interfere with principles of comity
and federalism, and thus Younger abstention is improper, where there is no ongoing
parallel state proceeding:
When no state criminal proceeding is pending at the time the federal
complaint is filed, federal intervention does not result in duplicative
legal proceedings or disruption of the state criminal justice system;
nor can federal intervention, in that circumstance, be interpreted as
reflecting negatively upon the state court’s ability to enforce
constitutional principles.
415 U.S. at 462. Just a year later Hicks v. Miranda clarified that the “ongoing”
nature of state proceedings must not be strictly construed along something akin to a
“first to file” rule:
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[W]here state criminal proceedings are begun against the federal
plaintiffs after the federal complaint is filed but before any proceedings
of substance on the merits have taken place in the federal court, the
principles of Younger v. Harris should apply in full force.
422 U.S. 332, 349 (1975); see also Morales v. Trans World Airlines, Inc., 504 U.S.
374, 381 n.1 (1992) (referring to Younger’s first requirement as “an already-pending
or an about-to-be-pending state criminal action, or civil action involving important
state interests”).
Community has cited a number of precedential cases where the Supreme
Court held Younger abstention was improper because there was no “pending” state
court action. The facts of these cases are distinguishable from those before the
Court; these cases’ holdings, however, support the Court’s decision to abstain
under Younger. Doran v. Salem Inn, Inc. reversed a lower court’s abstention under
Younger, but only because “[n]o state proceedings were pending against either
[plaintiff] at the time the [d]istrict [c]ourt issued its preliminary injunction.” 422
U.S. 922, 930 (1975). Because there is a state civil forfeiture action currently
pending, the Court’s decision to abstain is in harmony with Doran. Wooley v.
Maynard in turn held that Younger did not bar federal court intervention where the
plaintiff, who was only threatened with further prosecution but not party to an
ongoing state criminal proceeding, sought an injunction barring future prosecution.
430 U.S 705, 709-10 (1977). Wooley is distinguished from Community’s case
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because the State of Alabama has already seized Community’s gambling
equipment.
The first element of Younger is met in this case, because while the state civil
forfeiture proceeding was not instituted at the beginning of this action it was an
“about-to-be pending” action that Community could clearly foresee. The State of
Alabama delayed in filing its civil forfeiture action until March 6, 2017, but state
action had already begun against Community before it filed this lawsuit on the
afternoon of February 24, 2017. The State of Alabama’s clear enforcement action
vitiated the concern voiced in Steffel of stranding a “hapless plaintiff between the
Scylla of intentionally flouting state law and the Charybdis of forgoing what he
believes to be constitutionally protected activity in order to avoid becoming
enmeshed in a criminal proceeding.” 415 U.S. at 462. The Defendants had already
moved well past threatening enforcement of state law; they had received and
executed a search warrant on Community’s property and seized Community’s
gambling devices. It is immaterial if the civil forfeiture action was filed by the State
of Alabama ten days after the filing of the present suit because Community knew
exactly where it stood. (Doc. 19 Ex. 3.) After all, the ongoing or pendency
requirement exists to protect state court actions from duplicative or disruptive
federal proceedings. Summit Medical Assocs., P.C. v. Pryor, 180 F.3d 1326, 1339
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(11th Cir. 1999). Refusing to abstain under Younger and continuing to hear this
action as a result of stubborn formalism would inflict exactly the harm to the state
that Younger is intended to prevent.
THE PROCEEDINGS CONSTITUTE AN IMPORTANT STATE
INTEREST
It is evident that important state interests are involved in both the underlying
ii.

case and this current litigation. “The importance of the state interest may be
demonstrated by the fact that the noncriminal proceedings bear a close relationship
to proceedings criminal in nature, as is Huffman, . . . Proceedings necessary for the
vindication of important state policies or for the functioning of the state judicial
system also evidence the state’s substantial interest in the litigation.” Middlesex,
457 U.S. at 432; see also Huffman v. Pursue, Ltd., 420 U.S. at 604 (“[I]nterference
with a state judicial proceeding prevents the state not only from effectuating its
substantive policies, but also from continuing to perform the separate function of
providing a forum competent to vindicate any constitutional objections interposed
against those policies.”).
Defendants have addressed the important state interest being vindicated in
the civil forfeiture action. (Doc. 19 at 22.) They seek to effectuate Alabama’s laws
prohibiting certain types of gambling; there is likewise an important state interest in
providing a state-court forum for Community to object to Defendants’
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interpretation of Alabama law on federal constitutional grounds. The second
Middlesex element is satisfied.
iii.

THERE IS AN ADEQUATE OPPORTUNITY IN THE STATE
PROCEEDINGS TO RAISE CONSTITUTIONAL CHALLENGES

Finally, the Court concludes that Community has an adequate opportunity
to raise constitutional challenges in the current state civil forfeiture proceeding.
While Community argues that Alabama state courts will not provide “fair
procedures and impartial decision making,” (doc. 24 at 18), it does not show how
Alabama courts are deficient. Community bases this heavy accusation on its
reading of Alabama Supreme Court precedent in previous electronic bingo cases.
(Doc. 24 at 34.)
According to Community, the Alabama Supreme Court’s past interpretation
of constitutional amendments and criminal code as prohibiting electronic bingo
shows its bias and lack of fairness because “[the Alabama Supreme Court] refuse[s]
to really understand the difference of what electronic bingo machine is and a slot
machine [is].” (Doc. 24 at 35.) Community likewise argues that the Alabama
Supreme Court has given inconsistent rulings concerning the subject matter
jurisdiction of state civil and criminal courts in bingo cases. (Doc. 24 at 34 (citing
Tyson v. Macon Cty. Greyhound Park, Inc., 43 So. 3d 587, 592-595 (Ala. 2010).) In
Tyson, following a raid on their property by the State of Alabama, the
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plaintiffs/gambling-machine owners filed a state civil proceeding asking for a
declaration that their gambling operation was legal under Alabama law and an
injunction against the State of Alabama ordering the return of seized contraband.
The plaintiffs argued, much as Community does here, that they would not receive
due process in a state civil-forfeiture proceeding. Id. at 591. Tyson held that the suit
instituted by the plaintiffs was an improper attempt to circumvent state civil
forfeiture proceedings. However, a dissenting Justice noted the incongruity in the
Court’s holding with State ex rel. Tyson v. Ted’s Game Enterprises, 893 So. 2d 355
(Ala. Civ. App. 2002), aff’d, Ex parte Ted’s Game Enterprises, 893 So. 2d 376 (Ala.
2004), where the Alabama Supreme Court permitted the State of Alabama to seek
a declaratory judgment that certain gambling machines were illegal. See Tyson, 43
So. 3d at 593 (Woodall, J., dissenting).
Nothing contained in Tyson, however, shows how the civil forfeiture
proceeding itself is flawed. Far from showing any procedural defect, Tyson blazes
the proper trail for Community to seek redress for its constitutional injuries—state
civil forfeiture proceedings. Regardless of the merits of Community’s definition of
“bingo” under Alabama law, this Court cannot usurp state-court authority to
redefine Alabama’s statutes and constitution because of a perceived error of state
law. Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir. 1996); Butler v. Ala. Judicial Inquiry
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Comm’n, 245 F.3d 1257, 1262 (11th Cir.), certified question answered, 802 So. 2d 207
(Ala. 2001) (quoting Middlesex, 457 U.S. at 431) (“Minimal respect for the state
processes, of course, precludes any presumption that the state courts will not
safeguard federal constitutional rights.”).
Community additionally argues that Alabama courts are deficient because
the Alabama constitution does not have an equal protection clause. This argument
misunderstands the third Middlesex element. Plaintiffs still can bring their federal
constitutional claims in state court and indeed would be able to mount a number of
state-law challenges to Defendants’ actions that they cannot here because of Ex
parte Young. See Section III.A supra. The Court’s abstention occurs without regard
to the presence or absence of a state equal protection clause.
IV.

CONCLUSION

To the extent Community makes claims for declaratory and injunctive relief
under state law, those claims are due to be DISMISSED without PREJUDICE
because the Court lacks subject matter jurisdiction under the Eleventh
Amendment. While the Court does have subject matter jurisdiction under Ex parte
Young to hear Community’s allegations of Defendants’ ongoing violations of
federal law, it ABSTAINS from doing so under Younger. This case is therefore due

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to be DISMISSED without PREJUDICE. An Order consistent with this Opinion
will be entered separately.
DONE and ORDERED on October 27, 2017.

_____________________________
L. Scott Coogler
United States District Judge
190485

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