MEMORANDUM OPINION AND ORDER
This is a civil action filed by the Plaintiff, 3D-LIQ, LLC, against Matthew Wade, in his official capacity as the Sheriff of Calhoun County, Alabama, and against Larry Amerson, individually. (Doc. 14).1 All counts of the Amended Complaint arise out of a raid of a bingo hall by the Calhoun County Sheriff's Office, and the seizureof the Plaintiff's property therein.
The Amended Complaint states that it "is brought pursuant to 42 U.S.C. § 1983," and "the Federal Declaratory Judgment Act." (Doc. 14 at 3). It sets out four counts. Count One is entitled "Injunctive Relief under 42 U.S.C. § 1983," although section 1983 is not mentioned in the body of the count. Count Two is entitled "Injunctive Relief," although the body of the count fails to state the basis for such relief. Count Three seeks a declaratory judgment, but, again, the body of the count does not state the legal basis for such relief. Count Four seeks "damages," presumably pursuant to section 1983, although the count does not say as much.
The case comes before the Court on the Defendant's "Motion [T]o Dismiss, or in the Alternative for Summary Judgment," filed on September 19, 2016. (Doc. 9). A hearing was held on the motion on November 17, 2016. For the reasons stated herein, the motion will be treated as a motion to dismiss, pursuant Rule 12(b)(6) of the Federal Rules of Civil Procedure, and will be GRANTED. However, the Plaintiff will be given an opportunity to amend its claims against Sheriff Wade, and then only in his official capacity.
Generally, the Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim showing that the pleader is entitledto relief." Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ("Twombly").
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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556) ("Iqbal"). That is, the complaint must include enough facts "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation and footnote omitted). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels or conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, "it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563 (citation omitted). Further, when ruling on a motion to dismiss, a court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff." Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
II. ALLEGATIONS IN THE AMENDED COMPLAINT The following factual allegations appear in the Amended Complaint:
8. Sable [Learning Center ("Sable")] is a qualified nonprofit organization and has run a center for children in Hobson City, a small town outside of Anniston, [Alabama] for over 30 years. The center provides underprivileged children with healthy meals and assists them with their schoolwork.
9. In order to generate much needed money to continue to run the center, Sable, in accordance with Alabama law, applied for a bingo permit in the early summer of 2016. Sable sought to run a paper bingo operation on property located at 448 White Oak Drive, Glencoe, Alabama—property located in Calhoun County, Alabama but within the police jurisdiction of [the City of] Southside[, Alabama].
* * *
Sable's Application and Permit
17. In early summer of 2016, Sable applied for a permit to operate a charitable bingo hall in Calhoun County.
18. On June 1, 2016, the [Calhoun County Bingo Regulatory Commission (the "Commission")] approved the issuance of a bingo permit to Sable, and the Commission issued a bingo permit to Sable that day.
19. Sable then obtained a permit from Southside on July 12, 2016.
Sable and 3D-LIQ's Relationship
20. After obtaining the necessary permits, Sable began preparing to open the bingo hall. To that end, Sable entered into three agreements with 3D-LIQ for 3D-LIQ to lease the premises located at 448 White Oak Drive, Glencoe, Alabama to Sable and to provide equipment and certain services necessary for the charitable bingo operation.
21. Sable and 3D-LIQ entered into a services agreement, under which 3D-LIQ agreed to provide all advertising, janitorial, and security services for Sable.
22. They also entered into an exclusive equipment lease and license agreement, under which 3D-LIQ agreed to provide all point-of-sale equipment, furniture, supplies, and other bingo-related equipment to Sable.
23. Finally, Sable and 3D-LIQ entered into a lease agreement, under which 3D-LIQ leased the premises and facility located at 448 White Oak Drive, Glencoe, Alabama to Sable.
24. In exchange for the services, equipment, and property, Sable agreed to pay 3D-LIQ.
The Opening of Big Hit Bingo Hall & the July 22 Raid
25. 3D-LIQ spent significant time and resources preparing the property for the planned bingo operation.
26. 3D-LIQ provided all of the equipment, supplies, and furniture to Sable and otherwise helped prepare the charitable bingo operation.
27. 3D-LIQ spent thousands of dollars purchasing technological equipment (including point-of-sale machines and a security system), televisions, and furniture for the bingo hall.
28. Sable planned to open the charitable bingo hall on July 22, 2016, and pursuant to its agreement with Sable, 3D-LIQ heavily advertised the July 22 opening.
29. [Defendant] Amerson informed various news organizations that Sable did not have a valid bingo permit.
30. Neither the Commission nor [the City of] Southside gave notice that the bingo permit had been declared invalid or had been revoked.
31. The district attorney of Calhoun County did not file an action with the Calhoun County Circuit Court seeking to revoke the permit.
32. No actions have been taken . . . to revoke Sable's bingo permit.
33. But, on opening night (Friday, July 22), Amerson, under the premise that Sable's bingo permit was invalid, raided the charitable bingo operation, shut it down, and escorted out all of the charitable-bingo players.2
34. In an operation that took Friday night and most of Saturday, Amerson and the Sheriff's Department seized money and other bingo-related equipment leased to Sable by 3D-LIQ.
35. []
36. Amerson has threatened to arrest individuals associated with 3D-LIQ for violating the Act.
37. Amerson's unlawful raid of the charitable bingo operation has caused significant damages to 3D-LIQ.
38. Amerson has unlawfully seized 3D-LIQ's property. Without the necessary equipment that was seized by Amerson, Sable has been unable to reopen the charitable bingo operation since the July 22 raid, and as a result, 3D-LIQ has lost, and continues to lose, revenue due to it under its agreements with Sable.
39. Amerson's unlawful raid caused significant damage to 3D-LIQ's property. During the raid, Amerson removed and damaged personal property and equipment that was not seized.
40. Amerson's unlawful seizure and raid has halted the generation ofrevenue entitled to 3D-LIQ under its agreements with Sable.
41. Amerson's unlawful interference with the charitable bingo operation has caused irreparable harm to 3D-LIQ. Without equipment, the charitable bingo operation cannot proceed, and 3D-LIQ continues to lose revenue.
42. Amerson has caused the charitable bingo operation to close, and Amerson continues to threaten another raid and seizure of equipment if the operation is reopened.
43. Amerson has resorted to in terrorem tactics to prevent 3D-LIQ from continuing to supply equipment, services, and the property to allow for the operation of a charitable bingo operation by threatening individuals associated with 3D-LIQ with criminal prosecution should the charitable bingo operation resume.
(Doc. 14 at 3-9).
A. Count One - 42 U.S.C. § 1983
Count One states that it is brought against "Amerson." However, as noted previously3, the reference to "Amerson," without more, can be construed to mean Wade, in his official capacity, and Amerson, in his individual capacity. The Court so construes this Count.
"To state a claim under § 1983, a plaintiff must allege the violation of a rightsecured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." W. v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (U.S. 1988) (citations omitted). Count One alleges that:
3D-LIQ has a property right to the bingo-related equipment and other property seized and a property interest in the revenue streams generated by Sable's operation of the bingo hall. . . . Amerson's interference with the operation of the charitable bingo operation, including the seizure of the bingo-related equipment, has deprived 3D-LIQ of its property rights and interests.
* * *
Amerson's threatened commencement of prosecution has deprived 3D-LIQ of its liberty rights.
* * *
Amerson's unlawful interference with the operation of a lawful charitable bingo operation has deprived 3D-LIQ of revenue due to itunder its agreements with Sable.
(...
