Emrit v. Denney

          INITIAL REVIEW ORDER

          B. Lynn Winmill Chief U.S. District Court Judge

         INTRODUCTION

         The Court has before it Plaintiff's application to proceed without payment of fees (Dkt. 1) and Plaintiff's Complaint (Dkt. 2). For the reasons explained below, the Court will dismiss the Complaint with prejudice, and deny the application as moot.

         BACKGROUND

         Plaintiff alleges that he is an indigent, disabled, African American resident of Nevada. Compl. ¶ 6, 23, Dkt. 2. He alleges that he ran as a Democratic candidate for President of the United States in the 2016 election, and that he was placed on the official ballot in one jurisdiction, Palm Beach County, Florida. Id. ¶ 16-17. Plaintiff states that he plans to run for president again in 2020. Id. ¶ 27. Plaintiff alleges he contacted several secretaries of state and was told that in order to get placed on the ballot in a primary or general election “he would have to get a minimum number of petitions signed by constituents of each jurisdiction in which he wanted to run for president in the general election.” Id. ¶ 18. Plaintiff's alleges that such signature requirements as unconstitutional, and in violation of various federal statutes.

         Plaintiff filed a Complaint in this Court on October 10, 2017 against the Secretary of State of Idaho, and the Democratic Party of Idaho. Id. ¶ 7-8. He alleges that the Defendants refused to place him on the ballot for the primary and presidential elections in 2016. Id. ¶ 17. Plaintiff has filed similar actions against numerous other states, several of which have been summarily dismissed pursuant to the district courts' Section 1915 screening process. See Emrit v. Secretary of Hawaii, No. 17-00504-DKW-RLP, 2018 WL 264851 at *2 n.3 (D. Hawai'i Jan. 2, 2018) (collecting cases).^[1]

         Plaintiff alleges violations of his equal protection rights, substantive due process rights, and procedural due process rights under the Fifth and Fourteenth Amendments, as well as violations of the Privileges and Immunities Clause. Plaintiff further alleges violations under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Americans with Disabilities Act (“ADA”). Plaintiff also alleges state law claims of negligence and breach of contract. Plaintiff seeks monetary relief for 45 million dollars and injunctive relief in the form of ordering Defendants to place him on the ballot for the primary and general election in Idaho in 2020.

         STANDARD OF LAW

         “[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, . . . without prepayment of fees or security therefor.” 28 U.S.C. 1915(a)(1). In order to qualify for in forma pauperis status, Plaintiff must submit an affidavit that includes a statement of all assets he possesses and that he is unable to pay the fee required. The affidavit is sufficient if it states that the plaintiff, because of his poverty, cannot “pay or give security for the costs” and still be able to provide for himself and dependents “with necessities of life.” Adkins v. E.I. DuPont de Numours & Co., 335 U.S. 331, 339 (1948). The affidavit must “state the facts as to affiant's poverty with some particularity, definiteness and certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (internal quotation omitted).

         The Court is required to screen complaints brought by litigants who seek in forma pauperis status. See 28 U.S.C. § 1915(e)(2). Plaintiff's Complaint, or a portion thereof, will be dismissed if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i-iii). To state a claim upon which relief can be granted, plaintiff's Complaint must include facts sufficient to show a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009).

         During this initial review, courts generally construe pro se pleadings liberally, giving pro se plaintiffs the benefit of any doubt. See Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Even so, plaintiffs - whether represented or not - have the burden of articulating their claims clearly and alleging facts sufficient to support review of each claim. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). Additionally, if amending the complaint would remedy the deficiencies, plaintiffs should be notified and provided an opportunity to amend. See Jackson v. Carey, 353 F.3d 750, 758 (9th Cir. 2003).

         The Supreme Court identified two “working principles” that underlie Twombly in Ashcraft v. Iqbal, 556 U.S. 662, 678 (2009). First, the court need not accept as true, legal conclusions that are couched as factual allegations. Id. Rule 8 does not “unlock the doors of discovery for a plaintiff armed with nothing more than conclusion.” Id. at 678-79. “Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         A dismissal without leave to amend is improper unless it is beyond doubt that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) (issued 2 months after Iqbal). The Ninth Circuit has held that “in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The issue is not whether plaintiff will prevail but whether ...