Gordon v. United States of America

Filing 22

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/4/2017. (PSM)

FILED
2017 Dec-04 PM 01:16
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.
UNITED STATES
OF AMERICA,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

7:17-cv-01105-LSC

MEMORANDUM OF OPINION
Plaintiff Marshall W. Gordon (“Gordon”) filed this action against the
United States Federal Government (“ the Government”), alleging violations of his
civil rights and failure of federal and state officials to perform their legal duties.
Before this Court is the Federal Government’s motion to dismiss. (Doc. 8.) For the
reasons stated below, the Government’s motion to dismiss (doc. 8) is due to be
granted.
I.

BACKGROUND
Gordon has filed a number of pro se actions against various government

entities and actors over the past few years. The first, he filed in Alabama state
court, claiming that former Alabama governor Robert Bentley along with former
Page 1 of 9

Alabama governor Bob Riley, various Alabama state court judges, and Tuscaloosa
police officers, violated his civil rights and thus “must be reported” to FBI
Director Mueller. See Case No. 63-CV-13-000257. The case was removed to this
Court in December of 2015. (See Case No. 7:15-cv-02282-LSC.) Specifically,
Gordon claimed that Bentley and his “partners” undertook a concerted effort to
prevent Gordon from presenting evidence regarding former Alabama governor Don
Siegelman, by arresting and prosecuting Gordon for various state law violations.
After Director Mueller was dismissed, Governor Bentley’s motion to dismiss was
granted because Gordon’s suit was barred by the Eleventh Amendment. (See id.,
Doc. 25.)
Gordon filed another pro se action in February 2016 against former Alabama
governor Don Siegelman under 42 U.S.C. § 1983 and the Federal Government
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). (See Case No. 7:16-cv-02070-RDP.) Gordon asserted the defendants
had violated constitutional rights guaranteed to him by the Twenty-First
Amendment. (Id., Doc. 1.) Specifically, Gordon alleged defendants bought and sold
illegal marijuana within the court system. He alleged police officers recruited
“juvenile delinquents and adult community probationers who can keep a secret” to
sell marijuana to “delinquents and probationers” for defendants’ personal gain.
Page 2 of 9

(Id. at 10-11.) Plaintiff’s action was dismissed against Siegelman for failure to state a
claim and his claim against the Government was dismissed on account of Gordon’s
failure to timely serve the United States as required by Federal Rule of Civil
Procedure 4(i)(1). (See id., Doc. 13.)
The initial filing 1 in the instant action was filed in June 2017. (Doc. 1.) In it,
Gordon claims the Government and “its narcotic and drug agencies” cannot
prohibit marijuana without first repealing the Twenty-First Amendment of the
U.S. Constitution.2 (Doc. 1 at 3.) Specifically, Gordon alleged that police officers,
adults, and children are being killed because of the Federal Government’s “sadistic
voter prejudices” against the Constitution, Plaintiffs, and other citizens. Id.
Gordon requests this Court make the Government “quit arguing” with him, and
award “his family’s property” in the amount of $86 million by placing “an
attachment . . . on the State of Alabama City Tuscaloosa finances.” Id. Gordon
claims judgment should be granted in his favor because the Federal Government
cares “only about money, power, false religion, ethics, and morals,” and because of
its “illegal personal interference or uncalled for unlawful intervention on
1

Gordon entitled his initial pleading as “final settlement of claims and disputes of Case No: 7:16cv-02070RDP.” However, that case was summarily dismissed as to all claims on June 22, 2017.
For purposes of this Opinion the Court will refer to the initiating pleadings as the “Complaint.”
2
Gordon also filed this action on behalf of the state of Alabama. However, Plaintiff cannot file
suit pro se on behalf of the state of Alabama in this Court. See Franklin v. Garden State Life Ins.,
462 F. App’x 928, 930 (11th Cir. 2012) (per curiam) (discussing limitations of pro se parties
under 28 U.S.C. § 1654).
Page 3 of 9

consenting adults concerning matters of prohibition . . . .” Id. While the case is
styled as being brought against more than one defendant and Gordon includes in
his initial filing a section entitled “names” which include the President and Chief
Justice of the U.S., Alabama’s U.S. Senators, U.S. District Judge Mark Fuller and
other various federal and state officials, it is unclear from the pleadings precisely
whom he is lodging his complaint against.
The Federal Government filed their 12(b)(6) Motion to dismiss on
September 8, 2017. (Doc. 8.) The Court then ordered Plaintiff to show cause as to
why the motion should not be granted. (Doc. 10.) On October 10, 2017, Gordon
filed a motion for default judgment. (Doc. 13.) Because an incorrect address was on
file for Plaintiff, the Court mooted his motion for default judgment and afforded
Plaintiff ample time in which to show cause. (Doc. 17.) On November 29th, 2017,
Gordon filed a notice with the Court. (Doc. 21.) This notice fails to show cause and
simply restates Gordon’s belief that this Court should enter judgment in his favor
against the Government in the amount of 86 million dollars.
II.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure require that a complaint provide “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). To meet this standard, the complaint must state
Page 4 of 9

enough facts to raise the right to relief “above a speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Pleadings based upon “labels and conclusions”
or “naked assertion[s]” without supporting factual allegations will not suffice. Id.
at 555, 557. A party need not specifically plead each element in his or her cause of
action, but the pleading must 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). Ultimately, the Court must be able to draw a reasonable
inference from the facts that the other party is liable. Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). The Court must
construe pleadings broadly and resolve inferences in the nonmoving party’s favor.
Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006).
The Court must liberally construe Gordon’s complaint because he submitted
his complaint pro se. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, while
a pro se plaintiff will be given greater leniency, “[t]his leniency . . . does not require
or allow courts to rewrite an otherwise deficient pleading in order to sustain an
action.” Thomas v. Pentagon Fed. Credit Union, 393 Fed. Appx. 635, 637 (11th Cir.
2010).

Page 5 of 9

To survive a motion to dismiss, the plaintiff’s complaint must “state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570. To be plausible, the
claim for relief must contain “enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence” to support the claim. Id. at 556. If this Court
decides that the facts pleaded by plaintiff do not state a plausible claim, the
complaint is due to be dismissed. Id. at 570. To have facial plausibility, the
plaintiff’s complaint must plead “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).
A district court has the authority to dismiss a claim where “the factual
allegations are . . . far-fetched or baseless.” Cofield v. Ala. Public Service
Commission, 936 F.2d 512, 515 (11th Cir. 1991) (citing Neitzke v. Williams, 490 U.S.
319, 327 (1989)). However “[d]istrict court[s] may dismiss a case for frivolity only
when the legal claim is indisputably meritless, the facts are far-fetched or baseless,
or both.” Cofield, 936 F.2d at 515 (affirming district court’s dismissal of actions
which “allege[d] the fantastic”); see also Hagans v. Lavine, 415 U.S. 528, 536–37
(1974) (“[F]ederal courts are without power to entertain claims otherwise within
their jurisdiction if they are so attenuated and unsubstantial as to be absolutely
devoid of merit.”) (citations and internal quotations omitted).
Page 6 of 9

III.

DISCUSSION

Gordon has failed to allege specific harm directly related to or incurred
because of alleged violations of constitutional rights. Courts are not bound to
accept legal conclusions “couched as factual allegations,” and Gordon’s complaint
fails to state adequate factual allegations to raise his right to relief “above a
speculative level.” Twombly, 550 U.S. at 555.
Gordon’s four page complaint is conclusory, vague, and accompanied by
numerous attachments which fail to establish factual allegations required to avoid a
motion to dismiss. While the complaint is not completely clear, liberally construing
Gordon’s allegations, it appears he is attempting to assert a violation of rights he
believes are granted by the Twenty-First Amendment to the U.S. Constitution.
The Twenty-First Amendment states, “The eighteenth article of amendment to
the

Constitution

of

the

United

States

is

hereby

repealed.”

U.S. Const. amend. XXI. The Eighteenth Amendment prohibited “the
manufacture, sale, or transportation of intoxicating liquors” and is thus wholly
unrelated to the possession, sale, or use of marijuana. U.S. Const. amend. XVIII.
To the extent Gordon alleges violation of any Twenty-First Amendment rights, he
fails to state a claim.

Page 7 of 9

Further, Gordon fails to adequately allege any civil rights that have been
violated by Defendant. Gordon alleges the U.S. Government “is arguing
senselessly just to waste [his] and the honorable courts valuable time” as well as to
prevent him from “retrieving his family’s property.” (Doc. 1 at 3.) Beyond these
vague statements, Gordon’s complaint objects to general government action
regarding the prohibition of marijuana; he alleges the Federal Government must
repeal the Twenty-First Amendment if it wants to “enforce marijuana prohibition”
because the “plaintiffs are not drug babysitters for legal age consenting adults.” Id.
This amendment, however, and the amendment it repealed, concern neither
marijuana nor any other illicit substance aside from alcoholic beverages. Attached
to the complaint are seventy one pages which include various articles, previous
courts proceedings, including a petition for certiorari to the United States Supreme
Court and the Supreme Court of Alabama—both of which were denied. (Doc. 1 at
6 & 14.) None of these attachments support or provide a basis for any claim
asserted in Gordon’s complaint.
Gordon’s complaint concludes with an allegation that the Government’s
“heart[] [is] not with the children police officers and citizens of the United
States.” (Doc. 1 at 3.) Upon a thorough and liberal examination, Gordon’s
complaint simply “allege[s] the fantastic” and as such, is due to be dismissed on
Page 8 of 9

account of its “frivolous” and “attenuated” nature. Cofield, 936 F.2d at 515;
Hagans, 415 U.S. at 536. Additionally, Gordon has no basis for a claim under the
laws or statutes of the United States and the facts upon which he relies are not
actionable under any claim for relief. As such, the Government’s motion to dismiss
is due to be granted.
IV.

CONCLUSION

For the reasons stated above, the Government’s motion to dismiss (Doc. 9)
is due to be GRANTED and this case DISMISSED with PREJUDICE. A separate
order consistent with this opinion will be entered.
DONE and ORDERED on December 4, 2017.

_____________________________
L. Scott Coogler
United States District Judge
190685

Page 9 of 9