Garrison v. Cuddyer et al

Filing 17

Judge Rya W. Zobel: Memorandum of Decision entered granting 12 Motion to Dismiss for Failure to State a Claim; granting 13 Motion to Dismiss for Failure to State a Claim. Judgment may be entered dismissing the complaint. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 13-12855-RWZ

ALTHEA GARRISON
v.
GERALDINE CUDDYER, et al.

MEMORANDUM OF DECISION
October 7, 2014

ZOBEL, D.J.
Plaintiff Althea Garrison sued defendants, seven employees of the Boston
Election Department, in their individual and official capacities for damages under 42
U.S.C. § 1983, alleging violations of her rights under the Fifth and Fourteenth
Amendments of the United States Constitution. Defendants have moved to dismiss the
complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6).
I. Facts
According to the complaint, the Boston Election Department ceased sending its
annual census form to plaintiff after 2008 because of plaintiff’s political aspirations.
Plaintiff went to the Election Department to obtain a form in 2011 and subsequent
years.
On February 15, 2011, plaintiff was a candidate for City Councilor for District 7 in
the special preliminary election for that post, but lost because the Election Department

did not count many of the votes of those who voted for her and rigged the electronic
voting machines to produce the Election Department’s desired results. Plaintiff was a
write-in candidate for the final election held on March 15, 2011, but again lost because
of vote manipulation by the Election Department, leading to her official vote count of
only forty-six votes.
On September 27, 2011, plaintiff was a candidate in the preliminary election for
City Councilor for District 7. She again lost due to Election Department vote-rigging,
and plaintiff filed a recount petition on October 3, 2011. The recount occurred four
days later, on October 7, but plaintiff was not notified and as a result was not present at
the recount. She was a write-in candidate for the final election on November 8, 2011,
and officially received 47 votes, again because the Election Department did not credit
some votes for plaintiff.
On September 6, 2012, plaintiff was a write-in candidate in the Democratic state
primary election for State Representative for the Fifth Suffolk District. She received
only 63 write-in votes, again as a product of Election Department manipulation. She
ran in the main election on November 6, 2012, but lost, having received only 2,554
votes to the winner’s 9,110, again due to Election Department manipulation of vote
counts.
In March 2013 plaintiff requested from the Election Department a map of the
post-redistricting city counsel district map, but the Department deliberately gave her a
copy of the old map. Plaintiff ran and appeared on the ballot for the September 24,
2013, preliminary election for at-large City Councilor seats, but was not one of the eight
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elected. This loss was again due to Election Department manipulation of the vote,
under the direction of the Mayor of Boston.
II. Standard of Review
A complaint should be dismissed when its allegations, taken in the light most
favorable to the claimant, fail to state a claim. Fed. R. Civ. P. 12(b)(6); Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). A complaint generally need only have “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). That said, the complaint must “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 570). “Accordingly, a
complaint must include more than a rote recital of the elements of a cause of action; it
must include factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Artuso v. Vertex Pharm., Inc., 637
F.3d 1, 5 (1st Cir. 2011). A pro se plaintiff's pleadings are held to “less stringent
standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519,
520 (1972), but a court will not invent unpled allegations to salvage an actionable
claim. See McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979).
Ordinarily, the plaintiff’s factual allegations are assumed to be true for purposes
of a motion to dismiss. See Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 595 (1st
Cir. 2011). But where allegations, though “not stating ultimate legal conclusions, are
nevertheless so threadbare or speculative that they fail to cross the line between the
conclusory and the factual,” they need not be credited. Id. (citing Twombly, 550 U.S. at
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557). “Mere possibility is not enough to state a claim.” id. at 596.
III. Fifth Amendment Claims
The protections of the Fifth Amendment apply to federal, not state, actors.
Martinez-Rivera v. Sánchez Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007). Plaintiff does not
allege that any of the defendants are federal officials. Accordingly, plaintiff’s Fifth
Amendment claims are dismissed.
IV. Fourteenth Amendment Claims
“[I]n considering motions to dismiss courts should . . . eschew any reliance on
bald assertions, unsupportable conclusions, and opprobrious epithets.” Educadores
Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 68 (1st Cir. 2004). Despite
claims that the defendants discriminated against her based on race, sex, and other
grounds and manipulated election results on numerous occasions, the complaint gives
no inkling of how those conclusions are meant to be reached from the surrounding
facts. If plaintiff “had any basis beyond speculation for charging any one of the named
defendants with knowing participation in the wrong, it seems almost certain that this
would have been mentioned—if not in the complaint then at least in the opposition to
the motion to dismiss.” Penalbert-Rosa, 631 F.3d at 596. Plaintiff, however, has
provided no such basis. The motion to dismiss is therefore allowed, as the complaint
fails to state a claim upon which relief could be granted.
V. Conclusion
Defendants’ motion to dismiss is ALLOWED.
Judgment may be entered dismissing the complaint.

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October 7, 2014
DATE

/s/Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

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