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Emrit v. Oliver

United States District Court, D. New Mexico

January 30, 2018

RONALD SATISH EMRIT, Plaintiff,
v.
MAGGIE TOULOUSE OLIVER, Secretary of State of New Mexico, and DEMOCRATIC PARTY OF NEW MEXICO, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING CASE WITHOUT PREJUDICE

         THIS MATTER comes before the Court on Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed October 10, 2017 (“Application”), and on Plaintiff's Second Amended Complaint, Doc. 6, filed December 12, 2017. For the reasons set forth below, the Court will GRANT Plaintiff's Application and will DISMISS this case without prejudice.

         Application to Proceed in forma pauperis

         The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court may authorize the commencement of any suit without prepayment of fees by a person who submits an affidavit that includes a statement of all assets the person possesses and that the person is unable to pay such fees.

When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962). “[A]n application to proceed in forma pauperis should be evaluated in light of the applicant's present financial status.” Scherer v. Kansas, 263 Fed.Appx. 667, 669 (10th Cir. 2008) (citing Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.1988)). “The statute [allowing a litigant to proceed in forma pauperis ] was intended for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute, ” “an affidavit is sufficient which states that one cannot because of his poverty pay or give security for the costs and still be able to provide himself and dependents with the necessities of life.” Id. at 339.

         The Court will grant Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs. Plaintiff signed an affidavit declaring that he is unable to pay the costs of these proceedings and provided the following information: (i) his average monthly income during the past 12 months was $789.00; (ii) his monthly expenses total $1, 230.00; (iii) he is unemployed; and (iv) he owns no assets. The Court finds that Plaintiff is unable to pay the filing fee because he is unemployed and his monthly expenses exceed his monthly income.

         Dismissal of Proceedings In Forma Pauperis

         The statute governing proceedings in forma pauperis requires federal courts to dismiss an in forma pauperis proceeding that “fails to state a claim on which relief may be granted; ... or seeks monetary relief against a defendant who is immune from such relief.” See 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “In determining whether a dismissal is proper, we must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Kay v. Bemis, 500 F.3d at 1217. The Court looks to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief, i.e. the factual allegations must be enough to raise a right to relief above the speculative level. See Id. at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). Dismissal of an in forma pauperis complaint as frivolous is not an abuse of discretion based on a determination that the pro se litigant did not state a viable legal claim and that the complaint consisted of little more than unintelligible ramblings. Triplett v. Triplett, 166 Fed.Appx. 338, 339-340 (10th Cir. 2006). However, “pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

         Plaintiff asserts that Defendants “have violated the plaintiff's constitutional rights by refusing to place him on the ballot for the primary and general presidential election in 2016.” Second Amended Complaint at 1. 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).” Second Amended Complaint ¶ 71 at 18. Plaintiff asserts “there is no compelling government objective in requiring him to obtain a minimum number of petitions/signatures such that he can be placed on the ballot in this state for the primary and general elections.” Second Amended Complaint ¶ 79 at 20. Plaintiff seeks damages in the amount of $250, 000.00 for violations of his constitutional rights and Title VII of the Civil Rights Act of 1964, and an injunction “mandating that the plaintiff Ronald Emrit be allowed to be placed on the ballot for the primary and general presidential election in this state in the year 2020.” Second Amended Complaint at 23-24.

         The Court will dismiss the claim that Defendants violated the Equal Protection Clause of the Constitution “by excluding him from the primary and general election ballots in 2016 (e.g. the statute of limitations has not yet passed) and also in the future in 2020 (when the plaintiff plans to run again for president of the United States).” Second Amended Complaint at 19-20.

Different types of equal protection claims call for different forms of review. A claim that a state actor discriminated on the basis of a suspect (e.g., race), quasi-suspect (e.g., gender), or a non-suspect classification calls for strict, intermediate, or rational basis scrutiny, respectively. But in each instance, “to assert a viable equal protection claim, plaintiffs must first make a threshold showing that they were treated differently from others who were similarly situated to them.

Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th Cir. 2011) (citations omitted). Plaintiff's Second Amended Complaint fails to state an equal protection claim because it does not allege that Plaintiff was treated differently from others who were similarly situated to Plaintiff. Furthermore, Defendant Maggie Toulouse Oliver, as Secretary of State for the State of New Mexico, is immune from claims for damages. See Hull v. State of New Mexico Taxation and Revenue Department's Motor Vehicle Division, 179 Fed.Appx. 445, 446 (10th Cir. 2006) (“It is well established that arms of the state, or state officials acting in their official capacities, are not ‘persons' within the meaning of § 1983 and therefore are immune from § 1983 damages suits”). The Equal Protection claim also fails to state a claim against the other Defendant because there are no allegations that the Democratic Party of New Mexico is a state actor. See McCarty v.Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) (“Section 1983 provides a federal civil remedy for the deprivation of any rights, privileges, or immunities secured by the Constitution by any person acting under color of state law”).

         In his second claim Plaintiff alleges that Defendants violated the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. See Second Amended Complaint at 20-21. “The Fifth Amendment prohibits the federal government from depriving a person of “life, liberty, or property, without due process of law, ” and the Fourteenth Amendment extends this prohibition to the states.” Shimomura v. Carlson, 811 F.3d 349, 361 (10th Cir. 2015). The Court will dismiss Plaintiff's Fifth Amendment claim because there are no allegations that the federal government deprived Plaintiff of any property interest.

The Fourteenth Amendment proscribes a state from, among other things, depriving a party of “property without due process of law.” U.S. Const. amend. XIV, § 1. Procedural due process ensures the state will not deprive a party of property without engaging fair procedures to reach a decision, while substantive due process ensures the state will not deprive a party of property for an arbitrary reason regardless of the procedures used to reach that decision. . . . to prevail on either a procedural or substantive due ...

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