Gordon v. Bentley et al

Filing 10

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 3/8/2016. (PSM)

FILED
2016 Mar-08 AM 10:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MARSHALL W. GORDON,
Plaintiff,
vs.
DOCTOR, GOVERNOR
ROBERT BENTLEY, et al.,
Defendants.

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7:15-cv-02282-LSC

Memorandum of Opinion
Plaintiff Marshall W. Gordon (“Gordon”) filed this action against Governor
Robert Bentley (“Governor Bentley”) and Former Director of the Federal Bureau
of Investigation (“FBI”) Robert S. Mueller (“Director Mueller”), contending that
Governor Bentley violated his civil rights and “must be reported to” Director
Mueller. (Doc. 1-1 at Page 5.) Before the Court is Director Mueller’s motion to
dismiss (Doc. 5.) and Gordon’s motion to deny Director Mueller’s motion to
dismiss. (Doc. 9.) For the reasons stated below, Director Mueller’s motion to
dismiss (Doc. 5) is due to be granted and Gordon’s motion to deny (Doc. 9) is due
to be denied.

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I.

Background1
Gordon filed this action in Alabama state court alleging that Governor

Bentley, along with certain Alabama state court judges and Tuscaloosa city police
officers, “must be reported” to Director Mueller, as the director of the FBI, for
their violations of Gordon’s civil rights. Gordon alleges that Governor Bentley,
along with those Alabama judges and police officers, arrested and prosecuted
Gordon for state law violations in an effort to prevent Gordon from presenting
evidence regarding former Governor of Alabama Don Siegelman. Gordon’s
complaint indicates that Director Mueller has been made a defendant to this action
either for the FBI’s failure to investigate Governor Bentley’s actions against
Gordon or to notify Director Mueller of Governor Bentley’s violations of Gordon’s
civil rights.
Gordon requests the following relief in this action: (1) an entry of default
judgment to be entered against Alabama state officials and Tuscaloosa city officials
in the amount of eighty-six million dollars, (2) that the Court pardon former
Governor Don Siegelman, and (3) that the Court “have charges brought from the
lower house to the upper house against defendants accused by plaintiff.” (Doc. 1-1
1

In ruling on Director Mueller’s motion to dismiss under both Rule 12(b)(1) and Rule 12(b)(6),
this Court must accept all facts in Gordon’s complaint as true and construe them in his favor.
Baloco ex rel. Tapia v. Drummond Co., Inc., 640 F.3d 1338 (11th Cir. 2011) (citing Edwards v.
Prime, Inc., 602 F.3d 1276 (11th Cir. 2010)) (standard for 12(b)(6)); Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990) (standard for 12(b)(1)).
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at Page 10.) Director Mueller removed Gordon’s action to this Court, basing
removal on § 1442, and filed the instant motion to dismiss.
II.

Standard of Review
“[W]hen a defendant properly challenges subject matter jurisdiction under

Rule 12(b)(1) the district court is free to independently weigh facts, and . . . . [must]
satisfy itself as to the existence of its power to hear the case.” Morrison v. Amway
Corp., 323 F.3d 920, 925 (11th Cir. 2003) (citing Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990)). The Court may consider matters outside the pleadings
in ruling on a motion under Rule 12(b)(1). Colonial Pipeline Co. v. Collins, 921 F.2d
1237, 1243 (11th Cir. 1991). 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 motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the complaint
for failure to state a claim. Generally, a pleading stating a claim for relief must
“contain a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). A complaint that offers “naked
assertions” of law may provide a legal framework to the pleading; however,
without facts to support that framework, the complaint will not meet Fed. R. Civ.
P. 8(a)(2)’s standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, a
complaint must be supported by sufficient factual allegations such that “they
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plausibly give rise to an entitlement to relief.” Id. Further, “[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.”
Id.
Iqbal provides a two-step test to determine whether a complaint meets the
pleading standards under Fed. R. Civ. P. 8(a)(2). Id. at 679. A Court may “begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. Next, “[w]hen there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. Although specific
detail of facts is not required, “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007), and generally, “a complaint must still contain enough information
regarding the material elements of a cause of action to support recovery under
some ‘viable legal theory.’” Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of
Miami, Fla., 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr.
for Choice, Inc., 253 F.3d 678, 683-84 (11th Cir. 2001)).

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III. Discussion
Director Mueller contends that this Court lacks subject matter jurisdiction
under the doctrine of sovereign immunity. Gordon is suing Director Mueller in his
official capacity, which “generally represent[s] only another way of pleading an
action against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21,
25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). And “[a]bsent a
waiver, sovereign immunity shields the Federal Government and its agencies from
suit.” JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224 F.3d 1260, 1263 (11th Cir.
2000) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)). An individual defendant
being sued in his official capacity may raise the immunities available to the
governmental entity he represents. See, e.g., Hafer, 502 U.S. at 25 (“[T]he only
immunities available to the defendant in an official-capacity action are those that
the governmental entity possesses.”).
Here, Director Mueller is being sued in his official capacity as the Director of
the FBI. Thus, he is entitled to sovereign immunity absent a waiver. Gordon does
not cite any federal statute or caselaw upon which he brings his claims against
Mueller. From what the Court can gather, to the extent Gordon’s complaint states
a claim, it is one brought under the Federal Tort Claims Act (“FTCA”). The
FTCA “gives federal district courts exclusive jurisdiction over claims against the
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United States for ‘injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission’ of a federal employee ‘acting within the
scope of his office or employment.’” Millbrook v. United States, 133 S. Ct. 1441,
1443 (2013) (quoting 28 U.S.C. § 1346(b)(1)). Further, “[t]hrough the enactment
of the FTCA, the federal government has . . . waived its immunity from tort suits.”
Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015). Thus, Director
Mueller is not entitled to sovereign immunity in this action.
However, Gordon’s claim against Director Mueller is subject to dismissal
under Fed. R. Civ. P. 12(b)(6). Gordon’s complaint does not allege that Director
Mueller or any agent of the FBI has caused him a legally cognizable injury. Instead,
Gordon’s complaint indicates that Governor Bentley and other state judges and
police officers “must be reported to” Director Mueller and requests an entry of
default judgment in the amount of eighty-six million dollars. Because he fails to
allege any injury caused by Director Mueller or the FBI, Gordon’s complaint fails
to state a claim against Director Mueller for which relief can be granted. Because
Director Mueller’s motion to dismiss is due to be granted, Gordon’s motion to
deny Director Mueller’s motion is due to be denied.

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IV. Conclusion
For the reasons stated above, Director Mueller’s motion to dismiss (Doc. 5)
is due to be GRANTED and Gordon’s motion to deny (Doc. 9) is due to be
DENIED. A separate order consistent with this opinion will be entered.
DONE and ORDERED on March 8, 2016.

_____________________________
L. Scott Coogler
United States District Judge
182184

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