Penkoski et al v. Justice et al

Filing 123

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 104 AND DISMISSING THE AMENDED COMPLAINT DKT. NO. 62 . Court OVERRULES the plaintiffs objections (Dkt. Nos. 108, 109,110, 111, 112); ADOPTS the R&R to the extent consistent w ith this Memorandum Opinion and Order (Dkt. No. 104); GRANTS the defendants motion to dismiss the amended complaint Dkt. No. 69 ; OVERRULES the plaintiffs motions for default judgment (Dkt. Nos. 108, 109, 110, 111); and DISMISSES the amended compl aint WITHOUT PREJUDICE for lack of standing (Dkt. No. 62 . Court DIRECTS the Clerk to STRIKE this case from the Courts active docket. Signed by Senior Judge Irene M. Keeley on 11/9/2018. (copy counsel of record, copy pro se parties via certified mail)(jmm) (Additional attachment(s) added on 11/9/2018: # 1 Certified Mail Return Receipt) (wrr).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RICHARD PENKOSKI,
JOHN GUNTER, JR.,
WHITNEY KOHL,
JOAN GRACE HARLEY,
and CHRIS SEVIER,
Plaintiffs,
v.

CIVIL ACTION NO. 1:18CV10
(Judge Keeley)

JIM JUSTICE, in his official
capacity as Governor of West Virginia
PATRICK MORRISEY, in his official
capacity as Attorney General of West Virginia,
and JEAN BUTCHER, in her official capacity
as the Clerk of Gilmer County,
Defendants.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
Pending before the Court is the Report and Recommendation of
United

States

Magistrate

Judge

Michael

J.

Aloi,

recommending

dismissal of the amended complaint filed by the pro se plaintiffs
in this case. Also pending are the plaintiffs’ objections to the
magistrate judge’s recommendations. For the reasons that follow,
the Court OVERRULES the plaintiffs’ objections (Dkt. Nos. 108, 109,
110, 111, 112), ADOPTS the Report and Recommendation insofar as it
is consistent with this Memorandum Opinion and Order (Dkt. No.
104), GRANTS the defendants’ motion to dismiss (Dkt. No. 69), and
DISMISSES the amended complaint WITHOUT PREJUDICE for lack of
standing.

PENKOSKI, ET AL. V. JUSTICE, ET AL.

1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
I. BACKGROUND
On January 16, 2018, the pro se plaintiffs, Richard Penkoski
(“Penkoski”), John Gunter, Jr. (“Gunter”), Whitney Kohl (“Kohl”),
Joan

Grace

Harley

(collectively,

“the

(“Harley”),

and

Plaintiffs”),

Chris

filed

a

Sevier

(“Sevier”)

complaint

against

defendants Jim Justice, in his official capacity as Governor of
West Virginia, Patrick Morrisey, in his official capacity as
Attorney General of West Virginia, and Jean Butcher, in her
official capacity as the Clerk of Gilmer County (Dkt. No. 1). The
Plaintiffs take issue with the United States Supreme Court’s
same-sex marriage jurisprudence and characterize the “paramount
question” in the case as “whether parody marriage policies enforced
by the state violate the Establishment Clause” (Dkt. No. 62 at 2).
The Plaintiffs seek, among other things, declarative and
injunctive relief enjoining the state of West Virginia from legally
recognizing any form of “parody marriage,” including same-sex
marriage (Dkt. Nos. 1 at 43; 62 at 3). They also seek a ruling from
this Court overturning the Supreme Court’s decision in Obergefell
v. Hodges, 576 U.S. –––, 135 S.Ct. 2584 (2015) (Dkt. No. 62 at 3;
35). In the alternative, the Plaintiffs allege that Jean Butcher,
in her official capacity as Clerk of Gilmer County, refused to
issue Sevier, “a self-identified objectophile,” a license to marry

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
his laptop computer, and also refused to issue Gunter, “a selfidentified polygamists [sic]” a license to marry both Kohl and
Grace. Id. at 5. The Plaintiffs contend that the refusal to issue
these marriage licenses, while issuing licenses to “individuals who
identify as homosexual,” violates the Due Process Clause, the Equal
Protection Clause, and 42 U.S.C. § 1983. Id. at 24-33.
Pursuant to 28 U.S.C. § 636 and this Court’s local rules, the
Court referred all motion practice in this case to Magistrate Judge
Aloi for a written order or report and recommendation (“R&R”) (Dkt.
No. 13). After the Governor and the Attorney General (collectively,
“the State Defendants”) filed a joint motion to dismiss (Dkt. No.
52), the Plaintiffs amended their complaint as of right on March 9,
2018 (Dkt. No. 62). Shortly thereafter, on March 30, 2018, the
State Defendants moved to dismiss the amended complaint for lack of
subject matter jurisdiction, insufficient service of process, and
failure to state a claim (Dkt. No. 69).1
On August 3, 2018, Magistrate Judge Aloi entered an R&R
recommending that the Court grant the State Defendants’ motion and
dismiss the Plaintiffs’ amended complaint (Dkt. No. 104). The R&R
first concluded that the Eleventh Amendment bars the Plaintiffs’

1

To date, defendant Jean Butcher, in her official capacity as the
Clerk of Gilmer County, has not made an appearance in the case.
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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
claims against the State Defendants. Id. at 6-8. Next, it concluded
that

the

Plaintiffs

lack

standing

under

Article

III

of

the

Constitution because the amended complaint fails to allege that
they have suffered any injury in fact. Id. at 8-11. The R&R further
concluded that, notwithstanding these jurisdictional defects, the
amended complaint must nonetheless be dismissed under Federal Rule
of Procedure 12(b)(6) because the Plaintiffs have failed to state
any claim upon which relief can be granted. Id. at 12-15. Finally,
the R&R concluded that the amended complaint is frivolous and
should be dismissed as such. Id. at 15-18.
The R&R also informed the parties of their right to file
“written objections identifying the portions of the Report and
Recommendation to which objection is made, and the basis for such
objection.”

Id.

On

August

22,

2018,

the

Court

received

the

Plaintiffs’ various “Notice[s] of Appeal Under FRCP 72 to the
District Court Judge” (Dkt. Nos. 108; 111), “Motion[s] to Appeal
the Magistrate’s Recommendations Under FRCP 72 to the District
Court Judge” (Dkt. Nos. 109; 110), and “Motion for Reconsideration
Pursuant to FRCP 72” (Dkt. No. 112), all of which it construes as
timely objections to the R&R. Accordingly, this case is now ripe
for decision.

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
II. STANDARDS OF REVIEW
A.

The R&R
When reviewing a magistrate judge’s R&R made pursuant to 28

U.S.C. § 636(b), the Court must review de novo only the portions to
which an objection has been timely made. 28 U.S.C. § 636(b)(1)(C).
On the other hand, “the Court may adopt, without explanation, any
of the magistrate judge’s recommendations to which the prisoner
does not object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600,
603-04 (N.D. W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199
(4th

Cir.

1983)).

Courts

will

uphold

those

portions

of

a

recommendation to which no objection has been made unless they are
“clearly erroneous.” See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F.
Supp. 2d 744, 749 (S.D. W. Va. 2009) (citing Howard's Yellow Cabs,
Inc. v. United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)).
Failure to raise specific errors waives the claimant’s right to a
de novo review because “general and conclusory” objections do not
warrant such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982); Howard's Yellow Cabs, 987 F. Supp. at 474); see

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
also Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D. W. Va. 2009).
Indeed, failure to file specific objections waives appellate review
of both factual and legal questions. See United States v. Schronce,
72 7 F.2d 91, 94 & n.4 (4th Cir. 1984); see also Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).
B.

Pro Se Pleadings
The Court liberally construes pro se complaints. Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (“[A] pro se complaint, however
inartfully pleaded, must be held to less stringent standards than
formal

pleadings

drafted

by

lawyers”

(internal

citations

and

quotation marks omitted)).2 Nevertheless, even under that liberal
standard, a court may not construct the plaintiff’s legal arguments
for him, nor should it “conjure up questions never squarely

2

While the Plaintiffs all appear pro se in this matter, the Court
notes that Sevier asserts that he is, or was formerly, an attorney.
See, e.g., Dkt. Nos. 62 at 5 n. 1 (stating that Sevier “is a former
. . . prosecutor for DOD and DOJ rule of law mission”); 112 at 3
(describing himself as a “former Judge Advocate General”). The
Court further notes that, despite being individually filed, the
Plaintiffs’ objections to the R&R are almost identical in substance
and style and were all mailed on the same day, in envelopes marked
with Sevier’s name and/or his last-known mailing address. See Dkt.
Nos. 108-8; 109-4; 110-1; 111-1; 112-6). From the record before it,
however, the Court is unable to determine with any certainty to the
extent to which Sevier actually drafted the pleadings or other
filings in this case. Moreover, plaintiffs Penkoski, Gunter, Kohl,
and Harley are not attorneys. Thus, the Court will consider the
pleadings as if all Plaintiffs, in fact, appeared pro se.
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985).
III. DISCUSSION
As an initial matter, the Court observes that the Plaintiffs’
objections to the R&R consist largely of groundless and repetitive
attacks and insults against Magistrate Judge Aloi. See generally
Dkt. Nos. 108, 111, 112. Further, the Plaintiffs’ lengthy and
highly duplicative objections focus almost exclusively on the same
legal arguments raised before the magistrate judge. See Dkt. Nos.
77, 79, 80. As this Court has previously observed, “reiterations
and general objections place the Court under no obligation to
conduct a de novo review.” Reynolds v. Saad, No. 1:17CV124, 2018 WL
3374155, at *3 (N.D. W. Va. July 11, 2018), aff’d, 738 F. App’x 216
(4th Cir. 2018) (citing Diamond, 414 F. 3d. at 315).
Nevertheless, to the extent that the Plaintiffs’ Notices and
Motions can be construed as specific objections to the magistrate
judge’s

recommendations,

the

Plaintiffs

object

to

the

recommendations that the Court dismiss their amended complaint for
lack of standing, for failure to state a claim, and as frivolous.
Because the issue of standing is dispositive in this case, the
Court devotes the remainder of its discussion to that inquiry. See
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009) (“[I]t is

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
well established that the court has an independent obligation to
assure that standing exists.”).
A.

Applicable Law
Article

III

of

the

Constitution

limits

the

exercise

of

judicial power to “Cases” and “Controversies,” U.S. Const. art.
III, § 2, cl. 1, and “Article III standing . . . enforces the
Constitution's case-or-controversy requirement.” DaimlerChrysler
Corp. v. Cuno, 547 U.S. 332, 341 (2006) (quoting Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1, 11 (2004)). Thus, “[t]he
requirement of standing is ‘perhaps the most important’ condition
of justiciability.” Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000) (quoting Allen
v. Wright, 468 U.S. 737, 750 (1984)).
Standing under Article III “generally requires a showing that
a plaintiff has suffered actual loss, damage or injury, or is
threatened with impairment of his or her own interests.” Lamar
Outdoor Advert. v. City of Weston, No. 2:17-CV-82, 2018 WL 3029272,
at *3 (N.D. W. Va. June 18, 2018) (citing Gladstone Realtors v.
Village of Bellwood, 441 U.S. 91, 100 (1979)). The standing inquiry
thus “ensures that a plaintiff has a sufficient personal stake in
a dispute to render judicial resolution appropriate.” Friends of
the Earth, 204 F.3d at 153 (citing Allen, 468 U.S. at 750-51). “The

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
burden of establishing standing to sue lies squarely on the party
claiming subject-matter jurisdiction.” Frank Krasner Enterprises,
Ltd. v. Montgomery Cty., MD, 401 F.3d 230, 233 (4th Cir. 2005)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
To meet the constitutional minimum for standing, a plaintiff
must establish
(1) an ‘injury in fact’ to a ‘legally protected interest’
that is both ‘(a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical’; (2)
a causal connection between the injury and the conduct
complained of that is ‘fairly traceable,’ and not ‘the
result of the independent action of some third party not
before the court’; and (3) a non-speculative likelihood
that the injury would be redressed by a favorable
judicial decision.
Frank Krasner, 401 F.3d at 234 (citing Lujan, 504 U.S. at 560–61
(internal quotations, brackets, and citations omitted)). “Since
they are not mere pleading requirements but rather an indispensable
part of the plaintiff’s case, each element must be supported in the
same way as any other matter on which the plaintiff bears the
burden of proof . . . . At the pleading stage, general factual
allegations of injury resulting from the defendant’s conduct may
suffice.” Lujan, 504 U.S. at 561.
B.

Injury in Fact
The Plaintiffs seek to enjoin the state of West Virginia “from

legally recognizing gay marriage for violating the first amendment
9

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
establishment clause [sic] for (1) constituting a non-secular
shame,

for

(2)

serving

as

a

defensible

weapon

against

non-

observers, and for (3) excessive entanglement of government with
the religion of secular humanism” (Dkt. No. 62 at 3). The State
Defendants argue, in part, that the Plaintiffs have failed to
allege facts sufficient to establish any purported injury that is
fairly traceable to the challenged conduct of the defendants (Dkt.
No. 70 at 6-7). The Court agrees that the Plaintiffs have failed to
establish that they have suffered an injury in fact sufficient to
challenge the constitutionality of same-sex marriage under the
Establishment Clause.
To establish an injury in fact, the Plaintiffs must show that
they have suffered “an invasion of a legally protected interest
which is (a) concrete and particularized . . . , and (b) ‘actual or
imminent,’ not ‘conjectural’ or hypothetical.’” Lujan, 504 U.S. at
560

(internal

predicated

on

citations
a

omitted).

non-economic

Although

injury,

a

standing

may

plaintiff’s

be
mere

disagreement with the law or a court’s decision does not constitute
an injury cognizable under Article III. Valley Forge Christian
College v. Ams. United for Separation of Church & State, Inc., 454
U.S.

464,

485-486

(1992)

(“[T]he

psychological

consequence

presumably produced by observation of conduct with which one

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
disagrees . . . is not an injury sufficient to confer standing
under

Art.

III,

even

though

the

disagreement

is

phrased

in

constitutional terms.”). Thus, neither the Plaintiffs’ disbelief in
the legitimacy of same-sex marriage nor their disagreement with the
Supreme

Court’s

decisions

in

Obergefell

and

related

cases

constitutes an injury in fact sufficient to confer standing.
Moreover, to the extent that the Plaintiffs argue they have
standing under the Establishment Clause as taxpayers who “have a
vested interest in how the State spends tax dollars generated and
paid for by [them],” Dkt. No. 62 at 2, this argument is unavailing.
Generally, “the interest of a federal taxpayer in seeing that
Treasury funds are spent in accordance with the Constitution does
not give rise to the kind of redressable ‘personal injury’ required
for Article III standing.” Hein v. Freedom From Religion Found.,
Inc., 551 U.S. 587, 599 (2007). In Flast v. Cohen, the Supreme
Court carved out a narrow exception to the general prohibition
against taxpayer standing to challenge “an exercise by Congress of
the taxing and spending power” in violation of the Establishment
Clause. See 392 U.S. 83, 102-04 (1968).
To establish taxpayer standing under Flast, a taxpayer must
demonstrate (1) “a logical link between that status and the type of
legislative enactment attacked,” and (2) “a nexus between that

11

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
status and the precise nature of the constitutional infringement
alleged.” Id. at 102. In Flast, the plaintiffs alleged that the
distribution of federal funds to religious schools under a federal
statute violated the Establishment Clause. Applying the two-part
test, the Court concluded that the plaintiffs had established the
“logical link between [their taxpayer] status and the type of
legislative enactment attacked” where the alleged Establishment
Clause

violation

appropriation

was

and

funded

was

by

undertaken

a

specific

pursuant

congressional

to

an

express

limits

taxpayer

congressional mandate. Id. at 102-103.
In
standing

addition,
under

the

the

Supreme

Court

Establishment

narrowly
Clause

to

challenges

to

Congressional action under Article I, Section 8. “Flast explained
that individuals suffer a particular injury when, in violation of
the Establishment Clause and by means of ‘the taxing and spending
power,’ their property is transferred through the Government's
Treasury to a sectarian entity.” Arizona Christian Sch. Tuition
Org. v. Winn, 563 U.S. 125, 126 (2011) (citing Flast, 392 U.S. at
105-06); Valley Forge, 454 U.S. at 479 (noting that Flast “limited
taxpayer standing to challenges directed only [at] exercises of
congressional

power”

under

the

Taxing

and

Spending

Clause)

(internal quotation marks omitted). Moreover, while subsequent

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
cases have modified Flast, none suggests that taxpayer standing
exists to challenge federal court rulings. See Hein, 551 U.S. at
605–609 (discussing developments in taxpayer standing since Flast).
Here, the Plaintiffs have not attacked any legislative action.
Instead, the Plaintiffs admit that, “like in Obergefell v. Hodges,
. . . this case concerns only what states may do under the
Constitution,” and that they seek to challenge the Supreme Court’s
jurisprudence permitting same-sex marriage. See Dkt. No. 62 at 3-4.
Thus, the Plaintiffs have failed to establish the requisite link
between their taxpayer status and any legislative enactment. See,
e.g., Hein, 551 U.S. at 607–09 (finding no taxpayer standing where
plaintiffs “cite[d] no statute whose application they challenge”
and

rel[ied]

solely

on

“lump-sum

Congressional

budget

appropriations”) (internal quotation marks omitted).
Further, despite their references to purported “coercion by
Secular Humanists [and] the LGBTQ Church,” e.g., Dkt. No. 62 at 17,
the Plaintiffs have not alleged that, by means of the tax and
spending power, their property has been transferred to any church,
religious school, or other sectarian entity. Arizona Christian, 563
U.S. at 126; see also id. at 140 (“As Flast put it: The taxpayer’s
allegation in such cases would be that his tax money is being
extracted

and

spent

in

violation

13

of

specific

constitutional

PENKOSKI, ET AL. V. JUSTICE, ET AL.

1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
protections against such abuses of legislative power. Flast thus
understood the injury alleged in Establishment Clause challenges to
federal spending to be the very extract[ion] and spen[ding] of tax
money in aid of religion alleged by a plaintiff.”) (internal
quotation marks and citations omitted).
For these reasons, and for those more fully discussed in the
R&R, the Plaintiffs’ allegations in this case do not fall within
the narrow Flast exception to the general rule against taxpayer
standing. Accordingly, the Plaintiffs fail to qualify for taxpayer
standing under the Establishment Clause.
C.

Actual Case or Controversy
Finally, to the extent that the Plaintiffs seek, in the

alternative, to “force the government to legally recognize polygamy
and man-object marriage,” Dkt. No. 62 at 4, the Plaintiffs have
failed to state a justiciable claim or controversy. The Declaratory
Judgment Act provides that, “[i]n a case of actual controversy
within its jurisdiction . . . any court of the United States . . .
may declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or
could be sought.” 28 U.S.C. § 2201(a). In a declaratory judgment
action, “the question in each case is whether the facts alleged,
under all the circumstances, show that there is a substantial

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” MedImmune, Inc. v. Genentech, Inc., 549 U.S.
118, 127 (2007) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312
U.S. 270, 273 (1941)). “If a dispute is not a proper case or
controversy, the courts have no business deciding it, or expounding
the law in the course of doing so.” DaimlerChrysler, 547 U.S. at
341.
Throughout their pleadings, the Plaintiffs repeatedly describe
marriage to more than one person or to an inanimate object as
“obscene” and refer repeatedly to polygamy and man-object marriage
as forms of “parody marriage.” See, e.g., Dkt. Nos. 62 at 2, 24,
33, 35. Further, the Plaintiffs repeatedly ask the Court to enter
injunctions “enjoining the State from legally recognizing any form
of marriage other than man-woman marriage” and “enjoining the
Defendants

from

issuing

marriage

licenses

to

self-identified

homosexuals.” They also request declarations from this Court that
“Obergefell v. Hodges . . . is overturned” and that “man-woman
marriage is the only form of marriage, and thereby, the State can
legally recognize it.” See, e.g., Dkt. No. 62 at 34-35; see also
id. at 3 (stating that gay marriage “constitutes a non-secular
sham”), 5 (seeking to enjoin the state from recognizing “any form

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1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
of parody marriage - to include man-man and woman-woman marriage”),
21 (seeking to enjoin the Defendants from “legally respecting,
endorsing, and enforcing gay marriage policies”).
Thus, it is clear from the record in this case that the
Plaintiffs’

“alternative”

request

for

a

declaratory

judgment

“forc[ing] the government to legally recognize polygamy and manobject marriage” does not constitute a real request for relief.
Therefore, because the Plaintiffs present no real interest in
marrying an inanimate object or each other, their claim fails to
qualify as an actual case or controversy for purposes of Article
III.
IV. CONCLUSION
For the reasons discussed, the Court:
•

OVERRULES the plaintiffs’ objections (Dkt. Nos. 108, 109,
110, 111, 112);

•

ADOPTS

the

R&R

to

the

extent

consistent

with

this

Memorandum Opinion and Order (Dkt. No. 104);
•

GRANTS the defendants’ motion to dismiss the amended
complaint (Dkt. No. 69);

•

DENIES the plaintiffs’ motions for default judgment (Dkt.
Nos. 108, 109, 110, 111); and

16

PENKOSKI, ET AL V. JUSTICE, ET AL

1:18CV10

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 104] AND DISMISSING THE AMENDED COMPLAINT [DKT. NO. 62]
•

DISMISSES the amended complaint WITHOUT PREJUDICE for
lack of standing (Dkt. No. 62).

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to the pro se parties, certified mail, return receipt requested,
and to counsel of record. It further DIRECTS the Clerk to STRIKE
this case from the Court’s active docket.
Dated: November 9, 2018
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

17