Emrit v. Denney et al

Filing 11

INITIAL REVIEW ORDER - NOW THEREFORE IT IS HEREBY ORDERED, that Plaintiffs Complaint (Dkt. 2 ) be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. IT IS FURTHER ORDERED, that Plaintiffs In Forma P auperis Application (Dkt. 1 ) is FOUND MOOT. IT IS FURTHER ORDERED, that Plaintiffs Amended Complaint (Dkt. 5 ) and Plaintiffs Second Amended Complaint (Dkt. 7 ) be DISMISSED with prejudice as untimely and futile. IT IS FUTHER ORDERED, that the Clerk close this case. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RONALD SATISH EMRIT,
Case No. 1:17-cv-00411-BLW

Plaintiff,
v.

INITIAL REVIEW ORDER

LAWRENCE DENNEY, Secretary of State of
Idaho, and THE DEMOCRATIC PARTY OF
IDAHO.
Defendants.
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

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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”),

1

The District of Hawaii compiled the following list: Emrit v. Simon, 17-cv-04605 SRN-SER (D.
Minn. Dec. 8, 2017), Dkt. Nos. 4 and 9 (dismissing with prejudice Emrit's identical claims against
Minnesota Secretary of State, ordering that Emrit be restricted from filing new cases in the district unless
represented by licensed counsel, or with prior written authorization from a judicial officer, while noting
that Emrit has initiated approximately 150 federal lawsuits since 2013); Emrit v. Wyoming Sec. of State,
2:17-cv-00174-SWS (D. Wyo. Oct. 31, 2017), Dkt. No. 3 (dismissing case, noting “that Wyoming does
not hold a Presidential primary election [, no] candidates were placed on the ballot for the Presidential
primary in 2016, because there was no Presidential primary election in Wyoming”); Emrit v. Johnson,
2:17-cv-13337 GCS-RSW (E.D. Mich. Oct. 19, 2017), Dkt. No. 4 (dismissing with prejudice identical
claims against Michigan Secretary of State as frivolous); see also, e.g., Emrit v. Hammond, 3:17-CV2736-JFA (D.S.C. filed Oct. 10, 2017); Emrit v. Oliver, 1:17-CV-1024 JCH-GBW (D.N.M. filed October
10, 2017); Emrit v. Silrum, 1:17-CV-0212-CSM (D.N.D. filed Oct. 10, 2017); Emrit v. Stapleton, 1:17CV-0136 (D. Mont. filed Oct. 10, 2017); Emrit v. Kansas Sec. of State, 2:17-CV-2593-CM-GLR (D. Kan.
filed Oct. 10, 2017); Emrit v. Dunlap, 1:17-CV-0402-CZS (D. Maine filed Oct. 11, 2017); Emrit v. Sec.
of State of Alaska, 5:17-CV-6-SLG (D. Alaska filed Oct. 11, 2017); Emrit v. Krebs, 1:17-CV-1027-CBK
(D.S.D. filed Oct. 12, 2017); Emrit v. NH Sec. of State, 1:17-CV-0489-PB (D.N.H. filed Oct. 13,
2017); Emrit v. Condos, 5:17-CV-0204-GWE (D. Ver. filed Oct. 11, 2017).

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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

INITIAL REVIEW ORDER- 3

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 contextspecific 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.
INITIAL REVIEW ORDER- 4

Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990). The
issue is not whether plaintiff will prevail but whether he “is entitled to offer evidence to
support the claims.” Diaz v. Int'l Longshore and Warehouse Union, Local 13, 474 F.3d
1202, 1205 (9th Cir. 2007) (citations omitted).
ANALYSIS
The basis of Plaintiff’s claims is that Defendants refused to place him on the ballot
in 2016, and that he anticipates they will similarly refuse to place him on the ballot in
2020. Plaintiff has alleged no facts in support of this claim. He states only that he spoke
with several secretaries of state and was informed that he would need to collect a
minimum number of signatures before being placed on the ballot as a candidate for
president in 2016. He does not identify the specific law that he is challenging. He does
not allege that he spoke with the Defendant Secretary of State or any representative of the
Democratic Party of Idaho. Although Plaintiff alleges that he filed as a candidate with the
FEC, he does not allege any facts as to other steps he took, if any, to qualify as either a
democratic or independent candidate for president in Idaho during 2016.
Idaho Code § 34-708A requires a person to collect 1,000 signatures from qualified
electors in order to qualify as an independent candidate for president in Idaho, but it does
not impose any requirements on party candidates. Plaintiff has not identified any federal,
state, or local law or regulation requiring a candidate to submit a certain number of
signatures to be placed on the general election ballot as the Democratic candidate. The
Democratic nominee for a presidential general election is chosen by delegates from the
various state parties at a national nominating convention, and the nominee who emerges
INITIAL REVIEW ORDER- 5

from that process is named as the Democratic candidate on the ballot for the general
election in every state. Plaintiff was not the Democratic nominee for president in 2016,
and if he runs in 2020, there is no evidence suggesting that he would need to collect
signatures under any federal, state, or local law or regulation to become the Democratic
nominee and be so listed on the ballot in Idaho.
Further, the Democratic Party of Idaho does not currently hold a presidential
primary, but instead holds caucuses across the state. Plaintiff has identified no federal,
state, or local law or regulation requiring a candidate to collect a certain number of
signatures in order to participate as a candidate in the Democratic Party of Idaho’s
Presidential Caucuses. Thus, Plaintiff’s claims against the Democratic Party of Idaho are
patently frivolous and will be dismissed without leave to amend.
Having disposed of Plaintiff’s claims against the Democratic Party of Idaho, the
Court will now turn to his claims against Secretary Denney, starting with his
constitutional claims. Plaintiff has alleged that any requirement that he obtain a certain
number of signatures to qualify as an independent candidate for president, such as that
codified in Idaho Code § 34-708A, is a violation of his constitutional rights under the
Privileges and Immunities Clause, and the Fifth and Fourteenth Amendments to the
Constitution.
The Court finds that Plaintiff has failed to state a claim under the Privileges and
Immunities Clause. A challenge under the Privileges and Immunities Clause requires a
two-step inquiry. Marilley v. Bonham, 844 F.3d 841, 846 (9th Cir. 2016) (internal
citations omitted). “At step one, the plaintiff bears the burden of showing that the
INITIAL REVIEW ORDER- 6

challenged law falls within the purview of the Privileges and Immunities Clause.” Id. If
the plaintiff satisfies step one, “at step two the burden shifts to the state to show that the
challenged law is “closely related to the advancement of a substantial state interest.” Id.
To satisfy the first step, the plaintiff must show that the challenged law treats
nonresidents differently from residents. Id. Plaintiff has alleged no facts suggesting that,
as a nonresident, he was treated differently than residents of Idaho. Nor has Plaintiff
shown that Idaho Code § 34-708A treats nonresidents differently than residents of Idaho.
In fact, the signature requirement for an independent candidate is the same regardless of
the candidate’s state citizenship. Plaintiff’s claim therefore fails as a matter of law and
cannot be saved by amendment. As such, Plaintiff’s claim under the Privileges and
Immunities clause will be dismissed without leave to amend.
Plaintiff also claims that the signature requirement is a violation of his equal
protection and substantive due process rights under the Fourteenth and Fifth
Amendments. There is no fundamental right to candidacy, and “the existence of barriers
to a candidate’s access to the ballot does not of itself compel close scrutiny.” Clements v.
Fashing, 457 U.S. 957, 963 (1982) (internal citations omitted). Rather, “the rigorousness
of our inquiry into the propriety of a state election law depends upon the extent to which
a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick v.
Takushi, 504 U.S. 428, 434 (1992). When state election laws subject First Amendment
rights to “severe restrictions, the regulation must be narrowly drawn to advance a state
interest of compelling importance.’” Id. “But when a state election law provision imposes
only ‘reasonable, nondiscriminatory restrictions' upon the First and Fourteenth
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Amendment rights of voters, ‘the State's important regulatory interests are generally
sufficient to justify’ the restrictions.” Id. (citing Anderson v. Celebrezze, 460 U.S. 780,
787 (1983)). For ballot access restrictions, “[t]he inquiry is whether the challenged
restriction unfairly or unnecessarily burdens the availability of political opportunity.”
Clements, 457 U.S. at 964.
Signature requirements have generally been upheld as a reasonable means of
achieving states’ “important interests in protecting the integrity of their political
processes from frivolous or fraudulent candidacies, in ensuring that their election
processes are efficient, in avoiding voter confusion caused by an overcrowded ballot, and
in avoiding the expense and burden of run-off elections.” Id. at 965 (collecting cases).
Thus, to the extent Plaintiff is challenging Idaho’s signature requirements as
unconstitutional on their face, the claim fails and cannot be cured through amendment.
Plaintiff alleges that the signature requirements are unlawful as applied to him,
because they unconstitutionally discriminate against him on the basis of race and violate
his rights under the ADA. Plaintiff has alleged no facts to support either of these claims,
other than that he is a member of the relevant protected classes. Because Plaintiff has
failed to allege any facts demonstrating that the signature requirement was imposed due
with racial animus, or that the effect of the requirement is to discriminate against African
Americans or people with disabilities, his claims fail, and will be dismissed.
The Court declines to find there are no circumstances in which the plaintiff could
show that signature requirements have a discriminatory effect on certain classes of
candidates. It finds, however, that allowing Plaintiff to cure his complaint through
INITIAL REVIEW ORDER- 8

amendment would be futile in this particular case. As noted by the court in Emrit v.
Hawaii, despite the fact that plaintiff is proceeding pro se, he “is more than familiar with
his federal court filing and pleading responsibilities, given his numerous prior actions.”
Emrit v. Secretary of Hawaii, No. 17-00504-DKW-RLP, 2018 WL 264851 at *2. 2 In the
Hawaii case, Plaintiff raised nearly identical claims as in the instant action. Id. at *1. In
dismissing Plaintiff’s Third Amended Complaint with prejudice, the court found that
amendment would be futile where Plaintiff had failed, on his fourth try, to correct the
deficiencies found by the court in his previous complaints. Id. at 2. (citing Gardner v.
Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding that leave to amend may be denied
“where amendment would be futile.”).
Plaintiff also filed two separate amended Complaints in this action. See First Am.
Compl., Dkt 5; Second Am. Compl. Dkt 7. Although they were out of time, the Court
reviewed both amended pleadings to determine whether justice would be served by
granting leave to amend. 3 Both pleadings were filed after district courts in Michigan,
Minnesota, and Wyoming had dismissed similar actions for frivolousness and failure to

2

Indeed, a court in Minnesota found that Plaintiff had filed approximately 150 federal lawsuits
since 2013. See id. at *2 n.3.
3
Plaintiff filed the instant action on October 10, 2017. He filed a First Amended Complaint on
November 12, 2017, and a Second Amended Complaint on December 11, 2017. Both the First and
Second Amended Complaints were filed outside the 21-day period where a party may amend its pleading
as a matter of right. See Fed. R. Civ. P. 15(a)(1)(A). As such, Plaintiff was required to seek leave from the
Court prior to filing an amended pleading. Id. at 15(a)(2). He did not do so. Although the Court will
construe Plaintiff’s filing of the First and Second Amended Complaints as Motions for Leave to Amend,
it will deny both motions. Rule 15(a)(2) directs courts to freely give leave to amend when justice requires.
After review of the amended pleadings, however, the Court finds that neither pleading remedies the
deficiencies in Plaintiff’s original Complaint. As both Amended Complaints would be dismissed on the
same grounds as the original Complaint addressed herein, the Court finds that justice does not require that
Plaintiff be granted leave to amend his Complaint out of time.

INITIAL REVIEW ORDER- 9

state a claim. See Emrit v. Secretary of Hawaii, No. 17-00504-DKW-RLP, 2018 WL
264851 at *2 n.3 (citing Emrit v. Simon, 17-cv-04605 SRN-SER (D. Minn. Dec. 8, 2017),
Dkt. Nos. 4 and 9 (dismissing with prejudice claims against Minnesota Secretary of
State); Emrit v. Wyoming Sec. of State, 2:17-cv-00174-SWS (D. Wyo. Oct. 31, 2017),
Dkt. No. 3 (dismissing case, noting “that Wyoming does not hold a Presidential primary
election”); Emrit v. Johnson, 2:17-cv-13337 GCS-RSW (E.D. Mich. Oct. 19, 2017), Dkt.
No. 4 (dismissing with prejudice claims against Michigan Secretary of State as
frivolous)). Despite being on notice of the apparent deficits of his claims, Plaintiff failed
to remedy them in his amended pleadings here. As such, the Court concurs with the
finding of its sister court that granting leave to amend would be futile, and shall dismiss
Plaintiff’s constitutional claims with prejudice.
Plaintiff’s remaining claims also fail. In order to state a claim under 42 U.S.C. §
1983 a plaintiff must show that there was a violation or deprivation of a right secured by
the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). In
order to state a claim for a violation of procedural due process under the Fifth
Amendment, a plaintiff must similarly show that he was deprived of a liberty interest.
Finally, in order to state a claim for negligence, Plaintiff must show that Defendant
Denney breached some duty to him. As discussed above, Plaintiff failed to allege
sufficient facts to support a claim that he has a constitutional right or interest in
unrestricted access to the ballot. Nor did Plaintiff allege sufficient facts to show that
Secretary Denney has any duty to grant him access to the ballot, absent having collected
the requisite number of signatures. Thus, these claims fail, and are due to be dismissed.
INITIAL REVIEW ORDER- 10

For the same reasons outlined above, the Court finds that allowing amendment would be
futile in this case, and thus will deny Plaintiff leave to amend.
Finally, Plaintiff’s Title VII claim and his claim for breach of contract are patently
frivolous. Title VII prohibits discrimination in the employment context, and Plaintiff has
alleged no facts indicating that he was employed or denied employment by Secretary
Denney or the State of Idaho at any time. Nor does Plaintiff’s primary complaint – that he
was denied access to the ballot in a presidential election – have anything to do with
discrimination in the employment context. As such, Plaintiff’s claim under Title VII is
patently frivolous and will be dismissed without leave to amend. Further, Plaintiff has
alleged no facts suggesting that a contract exists or existed between himself and Secretary
Denney related to placing Plaintiff on the ballot as an independent presidential candidate.
As such, Plaintiff’s contract claim is patently frivolous and will be dismissed without
leave to amend.
CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint fails to state a plausible claim for
relief and is therefore subject to summary dismissal under 28 U.S.C. § 1915(e)(2). As
discussed above, it does not appear that Plaintiff would be able to cure the deficiencies if
given leave to amend. Thus, Plaintiff’s claims will be dismissed with prejudice. 4 As such,

4

The Court notes that the Plaintiff has filed a notice of interlocutory appeal in this case. See Notice, Dkt. 9.
Typically, “[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the
court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Discount co., 459 U.S. 56, 58 (1982). However, district courts do retain “some
jurisdiction after a notice of appeal has been filed.” United States v. Garner, 663 F.2d 834, 837 (9th Cir. 1981).
“Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a
non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with
the case, knowing that it has not been deprived of jurisdiction.” Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 389

INITIAL REVIEW ORDER- 11

Plaintiff’s application to proceed in forma pauperis is deemed moot. Accordingly,
ORDER
NOW THEREFORE IT IS HEREBY ORDERED, that Plaintiff’s Complaint (Dkt.
2) be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.
IT IS FURTHER ORDERED, that Plaintiff’s In Forma Pauperis Application (Dkt.
1) is FOUND MOOT.
IT IS FURTHER ORDERED, that Plaintiff’s Amended Complaint (Dkt. 5) and
Plaintiff’s Second Amended Complaint (Dkt. 7) be DISMISSED with prejudice as
untimely and futile.
IT IS FUTHER ORDERED, that the Clerk close this case.

DATED: April 18, 2018

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

(9th Cir. 1966). Here, there has been no order as yet entered in this case that could serve as the basis of Plaintiff’s
appeal. Indeed, the Notice may have been filed in error, as it refers to the case being remanded to the District Court
for the District of Wyoming, where Plaintiff had a similar case dismissed last fall. See Notice ¶ 7, Dkt. 9. As such,
the Court has determined that its jurisdiction has not been ousted, because Plaintiff’s purported notice of appeal was
not taken from any appealable order. Ruby, 365 F.2d at 389.

INITIAL REVIEW ORDER- 12