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Emrit v. Dunlap

United States District Court, D. Maine

March 14, 2018



          John H. Rich III United States Magistrate Judge.

         The plaintiff has filed suit alleging that Maine Secretary of State Matthew Dunlap, in his capacity as Secretary of State, [2] and the Maine Democratic Party violated various constitutional and statutory rights by refusing to place him on the primary and general election ballots for the 2016 presidential election. He seeks damages for the alleged violations in 2016 and injunctive relief in the form of a mandate that he be placed on Maine's primary and general election ballots in the 2020 presidential election. He requests permission to proceed without paying fees or costs associated with this lawsuit. I grant the plaintiff's request for leave to proceed in forma pauperis but recommend that the court dismiss this action pursuant to 28 U.S.C. § 1915(e)(2)(B).

         I. Application To Proceed in Forma Pauperis

         In forma pauperis status is available under 28 U.S.C. § 1915(a)(1). In his motion to proceed in forma pauperis, the plaintiff declares under penalty of perjury that he is unemployed and that his only monthly income is $789 in disability payments. See Application to Proceed in District Court Without Prepaying Fees or Costs (“Application”) (ECF No. 3) ¶¶ 1-2. The plaintiff states that he has $683 in a Chase Bank checking account but is overdrawn by a total of $1, 500 in two checking accounts held at other banks. See Id. ¶ 4. He lists no real or tangible assets but indicates that he is owed a total of $2, 200 by three individuals. See Id. ¶¶ 5-6. Finally, the plaintiff claims to have monthly expenses totaling $1, 230.[3] See Id. ¶ 8. These financial circumstances entitle him to proceed in forma pauperis.

         II. Section 1915(e)(2)(B) Review

         A. Applicable Legal Standard

         The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to the federal courts for those persons unable to pay the costs of bringing an action. When a party is proceeding in forma pauperis, however, “the court shall dismiss the case at any time if the court determines[, ]” inter alia, that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         “Dismissals [under § 1915] are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also Mallard v. U.S. Dist. Court S.D. Iowa, 490 U.S. 296, 307-08 (1989) (“Section 1915(d), for example, authorizes courts to dismiss a ‘frivolous or malicious' action, but there is little doubt they would have power to do so even in the absence of this statutory provision.”).[4]

         When considering whether a complaint states a claim for which relief may be granted, a court must assume the truth of all well-plead facts and give the plaintiff the benefit of all reasonable inferences therefrom. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be granted if it does not plead “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).

         Although a pro se plaintiff's complaint is subject to “less stringent standards than formal pleadings drafted by lawyers, ” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is “not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a claim[, ]” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in federal court, it is not enough for a plaintiff merely to allege that a defendant acted unlawfully; a plaintiff must affirmatively allege facts that identify the manner in which the defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As noted, the statute that provides for waiver of the filing fee also requires the court to determine whether the plaintiff's case may proceed. In other words, the plaintiff's complaint must be dismissed if the court finds it to be frivolous or malicious, seeks monetary relief from a defendant who is immune from such relief, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B). In this regard, a pro se plaintiffs complaint must be read liberally. Donovan v. Maine, 276 F.3d 87, 94 (1st Cir. 2002).

         B. Factual Background

         The operative complaint in this action, the plaintiffs Second Amended Complaint (“Complaint”) (ECF No. 7), begins with 38 paragraphs of content under the caption “Nature of the Case.” See Complaint ¶¶ 1-38. I cannot discern any relationship between the first 34 paragraphs, which describe, inter alia, FISA warrants and the plaintiff s travel to Cuba, and the causes of action that the plaintiff later alleges in his complaint. See Id. ¶¶ 1-34. However, paragraphs 35 to 38 state as follows:

35.) [T]he plaintiff alleges that the two defendants . . . have violated his [e]qual protection [r]ights inherent from the Fifth and Fourteenth Amendments to the United States Constitution.
36.) The plaintiff alleges that the two defendants have violated his substantive and procedural due process rights also inherent from the Fifth and Fourteenth Amendments to the U.S. Constitution.
37.) As a third count, the plaintiff alleges that both of the defendants have violated Title VII of the Civil Rights Act of 1964 which would allegedly protect the plaintiffs implied fundamental right to run for president of the United States as an American citizen under the principles of both jus soli (citizen by birth on soil) and jus sanguinis (and citizen by blood).
38.) Moreover, the plaintiff alleges that neither of the two defendants should be protected by the Eleventh Amendment doctrine of sovereign immunity and that it is unconstitutional to require that the two defendants waive their sovereign immunity as it is reasonable to assert that no governmental defendant would ever waive its right to sovereign immunity because no governmental agency (on the federal, state, or local level) would ever agree to be sued in its own jurisdiction.

Id. ¶¶ 35-38.

         The Complaint also includes a section titled “Statement of Facts, ” spanning 26 paragraphs. See Id. ¶¶ 49-75. Again, paragraphs 49 to 68 have no apparent bearing on the case, discussing, inter alia, the plaintiff's law school curriculum, international travel, and psychic abilities. See id. However, paragraphs 69 to 75 state as follows:

69.) . . . [T]he plaintiff was a Democratic candidate for president of the United States in the 2016 general election. As such, he ran alongside Bernie Sanders, Hillary Clinton, and President [T]rump.
70.) The plaintiff was only placed on an official ballot in Palm Beach County, FL whereas he was not placed on a ballot in any other jurisdiction in the country.
71.) The plaintiff was told by several secretaries of state that in order to get placed on the ballot in the primary or general election, he would have had to get a minimum number of petitions signed from the constituents of each jurisdiction in which he wanted to run for president in the general election (as an independent candidate).
72.) In the 2016 presidential election, the plaintiff's candidate ID number was P60005535 (registered with FEC Form 2 with the Federal Elections Committee (FEC) at 999 E ...

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