Curtis v. Nessel, Case No. 1:19-cv-00112

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtPHILLIP J. GREEN United States Magistrate Judge
PartiesMATTHEW CURTIS, Plaintiff, v. DANA NESSEL, Defendant.
Docket NumberCase No. 1:19-cv-00112
Decision Date07 August 2019

DANA NESSEL, Defendant.

Case No. 1:19-cv-00112


August 7, 2019

Hon. Paul L. Maloney


Plaintiff brought this action against the Michigan Attorney General, pursuant to 42 U.S.C. § 1983, claiming that Michigan's statutory prohibition on private gambling violates his rights under the First, Tenth and Fourteenth Amendments.1 He seeks declaratory judgment that the potential enforcement of those laws is unconstitutional. Plaintiff also seeks injunctive relief, as well as nominal damages.2

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This matter is before the Court on defendant's motion to dismiss. (ECF No. 14, 15). Plaintiff filed a response (ECF No. 17) and defendant replied (ECF No. 21).3 For the reasons stated herein, I recommend that the motion to dismiss be granted.


Plaintiff's complaint consists largely of bare legal conclusions. Nevertheless, the following allegations can be gleaned from it.

Plaintiff is a citizen of the state of Michigan who currently resides in South Bend, Indiana. He primarily challenges three of Michigan's statutory provisions. (See Compl. ¶¶ 44-46, ECF No. 1, PageID.7). The first prohibits private games of chance, making such conduct a misdemeanor punishable by up to one year incarceration and a maximum fine of $1,000. MICH. COMP. LAWS § 750.301. The second prohibits the advertisement and public dissemination of information relating to betting, also a misdemeanor punishable by up to one year incarceration and a maximum fine of $1,000. MICH. COMP. LAWS § 750.305. The third prohibits the promotion of a lottery and the dispossession of property by means of a lottery, making such conduct a two-year misdemeanor. MICH. COMP. LAWS § 750.372.

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Plaintiff claims an interest in developing and offering " 'equitable' games of chance," which would compete with Michigan's lottery. (Compl. ¶¶ 1, 22, ECF No. 1, PageID.1, 4). He defines equitable gambling as "risking money or other property for gain, contingent in whole or in part upon probabilities from which the operator derives no fees or income." (Id. at ¶ 24, PageID.4). Plaintiff contends that his gambling system would save Michigan resident's approximately two billion dollars annually as compared to Michigan's "loss-based" system, which directs a portion of funds collected to the game's operators. (Id. at ¶¶ 2, 5, PageID.1-2).

Plaintiff claims that Michigan's lottery scheme violates the state's sovereignty; that the state's prohibition on equitable games of chance violates his due process and equal protection rights; and that the state's gambling statutes violate his First Amendment rights to speech and association. Defendant moves to dismiss plaintiff's claims under Federal Rule of Civil Procedure 12(b)(1) on the grounds that plaintiff lacks standing due to his failure to allege an injury-in-fact. In the alternative, defendant seeks dismissal under Rule 12(b)(6) on the basis that plaintiff's allegations fail to state a claim on which relief can be granted.


Standing in its constitutional dimension is a threshold issue necessary to establish a case or controversy under Article III. Warth v. Seldin, 422 U.S. 490, 498 (1975). As the party invoking federal jurisdiction, plaintiff must demonstrate that he has standing to prosecute his claims. See, e.g., Loren v. Blue Cross & Blue Shield of Michigan, 505

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F.3d 598, 607 (6th Cir. 2007). To establish standing, plaintiff must demonstrate that he has suffered a concrete, particularized, and legally cognizable injury-in-fact. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint by evaluating the assertions therein in a light most favorable to plaintiff to determine whether the complaint states a valid claim for relief. See, e.g., In re NM Holdings Co., LLC, 622 F.3d 613, 618 (6th Cir. 2000). Pursuant to Rule 12(b)(6), a claim must be dismissed for failure to state a claim on which relief may be granted unless the "[f]actual allegations [are] enough to raise a right for relief above the speculative level on the assumption that all of the complaint's allegations are true." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court more recently held, to survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." If the complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.' " Id. As the Court further observed:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss . . . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief."

Id. at 678-79 (internal citations omitted).

When resolving a Rule 12(b)(6) motion to dismiss, the Court may consider the complaint and any exhibits attached thereto, public records, items appearing in the record of the case, and exhibits attached to the defendant's motion to dismiss provided such are referenced in the complaint and central to the claims therein. See Bassett v. National Collegiate Athletic Assoc., 528 F.3d 426, 430 (6th Cir. 2008); see_also Stringfield v. Graham, 212 F. App'x 530, 535 (6th Cir. 2007) (documents "attached to and cited by" the complaint is "considered parts thereof under Federal Rule of Civil Procedure 10(c)").

Pro se complaints are to be held to a less stringent standard than those drafted by attorneys. See, e.g., Bridge v. Ocwen Federal Bank, FSB, 681 F.3d 355, 358 (6th Cir. 2012) (citing Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011)). That does not abrogate, however, plaintiff's obligation to meet the minimum pleading standards. See Haines v. Kerner, 404 U.S. 519, 521 (1972). "[A] court cannot 'create a claim which [a plaintiff] has not spelled out in his pleading.' " Brown v. Matauszak, 415 F. App'x 608,

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613 (6th Cir. 2011) (quoting Clark v National Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975)).


Upon review of plaintiff's complaint, along with its attachments, I find that plaintiff has failed to establish standing to pursue his claims. In addition, I find that plaintiff's complaint fails to state a claim upon which relief may be granted. Accordingly, I recommend that the complaint be dismissed.

I. Plaintiff Has Failed to Establish Standing

Plaintiff's complaint includes three generalized claims of injury: (1) that he is living in a state that has abdicated its sovereignty and "destroyed the role of the ballot box as the sole and exclusive place of repealing undesirable legislation"; (2) that he has been "deprived of the right to pursue his chosen employment free of unreasonable government regulation"; and (3) that Michigan's criminal laws prohibit him not only from competing with the state's lottery, but also preparing to compete, depriving him of the "ability to hire employees, contract with firms, and communicate freely about his preparations." (Compl. ¶¶ 38-41, ECF No. 1, PageID.6-7). None of these alleged injuries are sufficient to establish standing.

Noticeably absent from plaintiff's claims is any assertion that he has suffered a concrete, particularized injury. Instead, he is seeking to vindicate generalized grievances that would apply equally to all Michigan residents. "The requirement that an injury be 'concrete and particularized' has two discrete parts: concreteness, which is

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the requirement that the injury be 'real,' and not 'abstract,' and particularization, which is the requirement that the plaintiff 'personally [have] suffered some actual or threatened injury' as opposed to bringing a generalized grievance." Crawford v. United States Department of Treasury, 868 F.3d 438, 453 (6th Cir. 2017) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 472 (1982)). Abstract concerns do not constitute concrete injuries. Crawford, 868 F.3d at 453. A plaintiff raising only general grievances about government, "claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large - does not state an Article III case or controversy." Lujan, 504 U.S. at 573-74.

Plaintiff's grievances regarding the state's alleged abdication of its sovereignty and the destruction of the ballot box apply equally to all Michigan residents. His alleged injuries are neither particularized to him nor are they concrete.

Plaintiff also lacks standing to bring a pre-enforcement challenge to Michigan's prohibition...

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