IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES N. STRAWSER, et al., )

)

Plaintiffs, )

)

vs. ) CIVIL ACTION NO. 14-0424-CG-C

)

LUTHER STRANGE, in his official 

capacity as Attorney General for 

the State of Alabama, et al.,

)

)

)

)

Defendants )

ORDER

This matter is before the court on the motions of Defendant Don Davis and 

Defendant Tim Russell to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) (Docs. 

103, 108), and Plaintiffs’ opposition (Docs. 106, 110). For the reasons explained 

below, the court finds that the motions to dismiss are due to be denied.

I. Dismissal Standard

The Defendants move for a dismissal of the Plaintiffs' claims pursuant to 

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. A motion to 

dismiss pursuant to Rule 12(b)(1) challenges subject-matter jurisdiction and should 

be granted “only if it appears certain that the plaintiff cannot prove any set of facts 

in support of his claim that would entitle plaintiff to relief.” Ramming v. United 

States, 281 F.3d 158, 161 (5th Cir. 2001). When the attack is a facial, as opposed to 

factual, challenge on the court's jurisdiction, the court treats the complaint's 

allegations as true, as it does under a 12(b)(6) motion. Carmichael v. Kellogg, Brown 

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& Root Svcs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). A “facial attack” 

“require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged 

a basis of subject matter jurisdiction, and the allegations in the complaint are taken 

as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 

(11th Cir. 1990) (citation omitted). “Factual attacks on the other hand, challenge 

the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and 

matters outside the pleadings, such as testimony and affidavits, are considered.” Id.

(citation and internal quotations omitted). With regard to any challenge as to 

Plaintiffs’ standing to request relief, standing is an Article III doctrine limiting the 

jurisdiction of the federal courts to actual “cases” and “controversies.” Socialist 

Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998). In order to establish 

standing, a plaintiff “must demonstrate injury in fact, causation, and 

redressability.” I.L. v. Alabama, 739 F.3d 1273, 1278 (11th Cir .2014). Because the 

burden of proof on a motion to dismiss for lack of subject-matter jurisdiction is on 

the party asserting jurisdiction, the plaintiff “constantly bears the burden of proof 

that jurisdiction does in fact exist.” Ramming, 281 F.3d at 161 (citing Menchaca v. 

Chrysler Credit Corp, 613 F.2d 507, 511 (5th Cir.1980)).

A motion to dismiss pursuant to Rule 12(b)(6) challenges the sufficiency of 

the claims set out in the plaintiff's pleadings. Harris v. Proctor & Gamble Cellulose 

Co., 73 F.3d 321, 324 (11th Cir. 1996). Thus, the “issue is not whether a plaintiff 

will ultimately prevail but whether the claimant is entitled to offer evidence to 

support the claims.” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir.1986) 

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(quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)). When ruling on a motion to 

dismiss, the court must accept the factual allegations in the complaint as true and 

construe them in the light most favorable to the plaintiff. Speaker v. U.S. Dep't of 

Health & Human Servs., 623 F.3d 1371, 1380 (11th Cir. 2010). To survive such a 

motion, the plaintiff must plead “only enough facts to state a claim to relief that is 

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A 

claim is facially plausible “when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the alleged 

misconduct.” Speaker, 623 F.3d at 1380 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 

677 (2009)).

II. Discussion

Defendant Judges Davis and Russell move to dismiss on several bases: (1) 

lack of subject matter jurisdiction, (2) lack of standing, (3) judicial immunity, (4) 

qualified immunity, (5) Eleventh Amendment immunity, (6) mootness, (7) the broad 

scope and lack of specificity in the relief sought and (8) the Alabama Supreme 

Court’s adjudication and the Anti-Injunction Act.

A. Subject Matter Jurisdiction

Defendant Judge Davis argues that there is no federal question presented 

because Plaintiffs’ claims are indistinguishable from those asserted in Baker v. 

Nelson, 409 U.S. 810 (1972). As Judge Davis is undoubtedly aware, this Court

discussed the application of Baker v. Nelson to such claims in Searcy v. Strange, 

2015 WL 328728, *2-3 (S.D. Ala. 2015). In that decision this Court concluded that 

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Baker does not preclude consideration of the constitutionality of a state's ban on 

same-sex marriage. Id. at *3. Defendant’s arguments do not persuade this court 

that the result here should be different.

B. Standing

Both Judge Davis and Judge Russell argue that the Plaintiffs lack standing 

because they cannot show an injury in fact caused by Defendant Judges Davis or 

Russell and that their alleged injuries are not redressable by Judge Davis or Judge 

Russell. However, Plaintiffs have clearly alleged that they have suffered a 

sufficient injury in fact. This Court previously found, with regard to their claims 

against Judge Davis, that Plaintiffs have suffered irreparable harm as a result of 

Alabama’s marriage laws prohibiting same-sex marriage and that the harm may be 

remedied by declaratory and injunctive relief. (Doc. 55). Judge Davis argues that he 

is not issuing marriage licenses to anyone now, same-sex or opposite-sex. However, 

Plaintiffs do not seek an order compelling Judge Davis to issue them marriage 

licenses. They seek an order preventing probate judges from denying them licenses 

on the basis that it is prohibited because they are a same-sex couple. As long as 

Judge Davis chooses not to issue any marriage licenses to anyone, he is not 

violating this court’s preliminary injunction entered against him. The fact that 

Davis has reportedly complied with the injunction order does not invalidate 

Plaintiffs’ claims. Plaintiffs have continued standing to ensure compliance with the 

injunction. See Salazar v. Buono, 559 U.S. 700 (2010).

Judge Russell asserts that it is questionable whether it is sufficient that the 

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named Plaintiffs were merely told over the telephone that he would not issue 

marriage licenses to them. However, the Court finds that this distinction does not 

result in a lack of standing. The named Plaintiffs and the putative class members 

cannot obtain a marriage license from Judge Russell’s office because they wish to 

marry a person of the same-sex. Whether they were informed of this fact over the 

phone or in person makes no difference. 

Defendants argue that they have no authority to order or enforce the 

recognition of marriages for all purposes under Alabama law nor to afford the 

plaintiffs the myriad benefits of marriage they seek. While it is true that Defendant 

Judges Davis and Russell cannot provide complete relief to the Plaintiffs, they can 

partially redress Plaintiffs’ injuries. Plaintiffs seek to both marry and have those 

marriages recognized. Obviously they cannot have their marriages recognized until 

they actually marry. Allowing Plaintiffs to obtain a marriage license redresses 

their injury in part, “and that is enough for standing purposes.” I.L. v. Alabama, 

739 F.3d 1273, 1282 (11th Cir. 2014) (citing Made in the USA Foundation v. United 

States, 242 F.3d 1300, 1310–11 (11th Cir. 2001)). 

C. Judicial Immunity

Defendants assert that they are entitled to judicial immunity under 42 U.S.C. 

§ 1983. Section 1983 provides the following:

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the United States or 

other person within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the Constitution and laws, 

shall be liable to the party injured in an action at law, suit in equity, or 

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other proper proceeding for redress, except that in any action brought 

against a judicial officer for an act or omission taken in such officer's 

judicial capacity, injunctive relief shall not be granted unless a 

declaratory decree was violated or declaratory relief was unavailable.

...

Section 1983 “contains a significant caveat—the ‘acts or omissions’ at issue must be 

ones taken in the ‘officer's judicial capacity.’ ” Marie v. Moser, 2014 WL 5598128, *8 

(D.Kan. Nov. 4, 2014) (citing Lundahl v. Zimmer, 296 F.3d 936, 939 (10th Cir. 

2002); Mireles v. Waco, 502 U.S. 9, 11 (1991); and 42 U.S.C. § 1983). Where the acts 

in question were ministerial, rather than judicial, there is no judicial immunity. 

See Id. The issuance of marriage licenses is a purely ministerial act. See Ex parte 

State ex rel. Alabama Policy Institute, 2015 WL 892752, * 4, 8 (Ala., March 3, 2015) 

(discussing and referring to the probate judges’ “ministerial act of licensing 

marriages”). Neither Davis nor Russell is charged with discretion or judgment in 

carrying out this ministerial duty. Accordingly, the court finds Defendants are not 

entitled to judicial immunity. 

D. Qualified Immunity

“Qualified immunity insulates government actors, in their individual 

capacities, from civil lawsuits as long as the challenged discretionary conduct does 

not violate clearly established federal statutory or constitutional rights.” Adams v. 

Poag, 61 F.3d 1537, 1542 (11th Cir. 1995). “[Q]ualified immunity is only a defense 

to personal liability for monetary awards.” Ratliff v. DeKalb County, 62 F.3d 338, 

340 n. 4 (11th Cir.1995) (citations omitted). It therefore “may not be effectively 

asserted as a defense to a claim for declaratory or injunctive relief,” D'Aguanno v. 

Gallagher, 50 F.3d 877, 879 (11th Cir. 1995), or in defense of an official-capacity 

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claim. Bruce v. Beary, 498 F.3d 1232, 1249 n. 33 (11th Cir. 2007). In the instant 

action, Defendant Judgess Davis and Russell are sued only in their official capacity 

and monetary damages are not sought. Thus, qualified immunity does not apply.

E. Eleventh Amendment immunity

Eleventh Amendment Immunity only protects state officers from monetary 

damages claimed against them and does not bar claims for “prospective injunctive 

relief in order to end a continuing violation of federal law.” Tindol v. Alabama Dept. 

of Revenue, 2015 WL 350623, *10 (M.D. Ala. Jan. 23, 2015) (quoting Seminole Tribe 

of Fla. v. Florida, 517 U.S. 44, 73 (1996)); see also Ex parte Young, 209 U.S. 123 

(1908) (holding that the Eleventh Amendment does not bar prospective injunctive 

relief against a state officer (as distinct from the State itself) on the theory that a 

state official engaged in unconstitutional actions is stripped of his official 

representative capacity.); Welch v. Estes, 2014 WL 7369424, *3 (N.D. Ala. Dec. 29, 

2014) (“Although Eleventh Amendment immunity protects state officials from suits 

for money damages, actions against a state official for prospective injunctive relief 

are outside the protection offered by the Eleventh Amendment.” (citations omitted)). 

Thus, even if probate judges are “state officials,” Eleventh Amendment immunity 

does not bar the relief sought here.

F. Mootness

Defendant Davis argues that this court has already declared that Alabama’s 

laws that prohibit same-sex marriage are unconstitutional. However, as stated 

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above, Plaintiffs have continued standing to ensure compliance with the injunction. 

See Salazar v. Buono, 559 U.S. 700 (2010). Moreover, there are now additional 

named Plaintiffs and class allegations seeking statewide relief against all probate 

judges. Plaintiffs’ claims are not moot.

G. Nature of Relief 

Judge Davis asserts that Plaintiffs seek an impermissibly vague and overly 

broad injunction. However, Judge Davis has already been enjoined and has 

apparently been able to comply with the injunction. Davis argues that he could be 

subject to sanctions for failing to stop something he is powerless to prevent. 

However, the claims against Judge Davis and the other probate judges are only 

asserted against them in their official capacity. As such, any injunction against 

Judge Davis would apply only to his conduct in carrying out the duties and 

responsibilities of his office. Judge Davis is not being asked to assert authority or 

control over anyone or anything that is beyond his authority or control. 

H. The Alabama Supreme Court’s Adjudication

Defendants contend that the Supreme Court of Alabama’s ruling in Ex parte 

State ex rel. Alabama Policy Institute, 2015 WL 892752 (Ala., March 3, 2015), is 

binding upon all state courts in Alabama and precludes this court from assuming 

jurisdiction over claims by plaintiffs who already are bound by the Alabama 

Supreme Court’s ruling. Plaintiffs were not party to the state-court mandamus 

proceeding. As such, Plaintiffs are not bound by the conclusions of the Alabama 

Supreme Court. A mandamus proceeding in a state court against state officials to 

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enforce a challenged statute does not bar injunctive relief in a United States 

District Court. Hale v. Bimco Trading, 306 U.S. 375, 377-378, 59 S.Ct. 526, 527 

(1939). Actions attacking the constitutionality of such statutes can be brought by 

parties who are strangers to the state court action. Id. The Hale Court held that 

strangers to a state court proceeding are not barred by the Anti-Injunction Statute, 

which was a precursor of the Anti-Injunction Act, from challenging the 

constitutionality of a statute in federal court when the statute is also under 

litigation in the state courts. Courts since then have agreed. See e.g. Chezem v. 

Beverly Enterprises-Texas, Inc., 66 F.3d 741, 742 (5th Cir. 1995) (“As the Supreme 

Court has taught, the Anti–Injunction Act has no application herein because 

Carriage House and its residents were neither parties nor privies of parties to the 

state court action.”); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1020 (7th

Cir. 1990) (“Only a party, or, what amounts to the same thing in contemplation of 

the law, one who is in privity with a party, is barred by the Anti–Injunction Act.” 

Citations omitted); Munoz v. Imperial County, 667 F.2d 811 (9th Cir. 1982) (holding 

that federal plaintiffs were strangers to state-court proceedings and affirming entry 

of injunction against county officials). Defendants have not shown that any 

abstention doctrine applies to this case. Moreover, this Court’s jurisdiction in this 

case and this Court’s finding that Alabama’s marriage sanctity laws are

unconstitutional predate the state court mandamus action.

III. Conclusion

For the reasons stated above, the motions of Defendant Judge Don Davis and 

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Defendant Judge Tim Russell to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) 

(Docs. 103, 108), are DENIED.

DONE and ORDERED this 23rd day of April, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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