Gordon v. Bentley et al
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 8/17/2016. (PSM)
2016 Aug-17 PM 03:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARSHALL W. GORDON,
ROBERT BENTLEY, et al.,
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”), alleging
violations of his civil rights. Before this Court are Governor Bentley’s motion to
dismiss (Doc. 21) and Gordon’s motion to deny Governor Bentley’s motion to
dismiss (Doc. 24). For the reasons stated below, Governor Bentley’s motion to
dismiss (Doc. 21) is due to be granted, and Gordon’s motion to deny (Doc. 24) is
due to be denied.
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Gordon first filed this action in Alabama state court in December 2013,
claiming that Governor Bentley, “in partnership with” former Alabama governor
Bob Riley, certain Alabama state court judges, and certain Tuscaloosa city police
officers, violated his civil rights and thus “must be reported” to Director Mueller.
Specifically, Gordon alleged that Governor Bentley and his “partners” arrested
and prosecuted Gordon for violations of various state laws in a concerted effort to
prevent Gordon from presenting evidence regarding former Alabama governor Don
Director Mueller removed the case to this Court in December 2015 and was
dismissed as a defendant in March 2016 (Doc. 11). Following the dismissal of
Director Mueller, Gordon sought an entry of default judgment against Governor
Bentley and other Alabama state officials in the amount of $86 million. (Doc. 17.)
This Court denied Gordon’s motion because, to the extent this Court was aware, 1
Governor Bentley had not been served in the action, and ordered Gordon to
execute proper service on Governor Bentley within forty-five days. (Doc. 13.)
Following service, Gordon filed an amended complaint (Doc. 20) alleging facts
similar to those in the original complaint and seeking $86 million from Governor
Governor Bentley stated in his brief to the instant motion to dismiss that he had been dismissed
from the action in state court prior to removal. However, this Court received only the initial
complaint as the record of the state court proceeding upon Director Mueller’s removal of the
action and has received no other portions of the state court proceeding to date from the parties.
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Bentley and the City of Tuscaloosa. Governor Bentley then filed the instant motion
to dismiss, challenging Gordon’s amended complaint on the basis of sovereign
immunity and, alternatively, that the complaint fails to state a claim upon which
relief can be granted. (Doc. 21.)
STANDARD OF REVIEW
The issue of whether a defendant is entitled to Eleventh Amendment
immunity is a threshold question of jurisdiction. Black v. Wigington, 811 F.3d 1259,
1270 (11th Cir. 2016). If the defendant’s challenge to jurisdiction is based solely on
allegations made in the plaintiff’s complaint (i.e., a “facial” challenge), this Court
reviews the motion to dismiss under a Federal Rule of Civil Procedure 12(b)(6)
standard. Douglas v. United States, 814 F.3d 1268, 1274 (11th Cir. 2016) (citing
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir.
2009)). When addressing a “facial” challenge, this Court must accept the factual
contentions in the complaint as true and cannot consider extrinsic evidence.
Carmichael, 572 F.3d at 1279 (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5
(11th Cir. 2003)). By contrast, if the defendant challenges jurisdiction based on
facts not available in the complaint (i.e., a “factual” challenge), this Court may
consider additional evidence and must provide the plaintiff with “an opportunity
for discovery and for a hearing” on the jurisdictional issues. Douglas, 814 F.3d at
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1274–75 (quoting McElmurray v. Consol. Gov’t of Augusta–Richmond Cnty., 501 F.3d
1244, 1251 (11th Cir. 2007)).
Governor Bentley raises a “facial” challenge to jurisdiction, alleging that
because he was sued in his official capacity as Governor of the State of Alabama, he
is entitled to sovereign immunity in this action. It is clear from Gordon’s amended
complaint (Doc. 20) that he sues Governor Bentley in his official capacity.
Therefore, this Court determines Governor Bentley’s entitlement to Eleventh
Amendment immunity by accepting the facts in the amended complaint as true and
without considering additional evidence.
“[T]he Eleventh Amendment bars suits against state officials in federal
court seeking retrospective or compensatory relief . . . .” Summit Medical Assocs.,
P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999) (citing Green v. Mansour, 474
U.S. 64, 68 (1985)). If a defendant sued in his official capacity is shielded by
sovereign immunity, this Court lacks subject matter jurisdiction over the action
against the defendant. See Black, 811 F.3d at 1270.
As referenced above, Gordon has sued Governor Bentley in his official
capacity as Governor of the State of Alabama. The sole relief Gordon requests in
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his amended complaint is “an attachment” in the amount of $86 million to be
issued against Governor Bentley, to be paid from the City of Tuscaloosa’s “public
finances.” (Doc. 20.) Gordon’s suit against Governor Bentley is barred by the
Eleventh Amendment. Governor Bentley’s motion to dismiss is due to be granted,
and Gordon’s motion to deny Governor Bentley’s motion to dismiss is due to be
For the reasons stated above, Governor Bentley’s motion to dismiss (Doc.
21) is due to be GRANTED, and Gordon’s motion to deny (Doc. 24) is due to be
DENIED. A separate order consistent with this opinion will be entered.
DONE and ORDERED on August 17, 2016.
L. Scott Coogler
United States District Judge
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