Emrit v. Gale et al

Filing 15

MEMORANDUM AND ORDER - Plaintiff's Amended Complaint (Filing No. 12 ) and Second Amended Complaint (Filing No. 13 ) shall be stricken from the court file as unauthorized pleadings. Plaintiff shall have 30 days in which to file an amended compl aint that states a claim on which relief may be granted against Defendants. Failure to file an amended complaint within 30 days will result in the court dismissing this case without further notice to Plaintiff. Plaintiff's Motion for Preliminary Injunction (Filing No. 7 ), Motion to Request a Rule 16 Hearing (Filing No. 8 ), Motion for Summary Judgment (Filing No. 9 ), Motion to Compel Discovery (Filing No. 10 ), and Motion to Subpoena Witnesses (Filing No. 11 ) are denied without prej udice to reassertion in the event Plaintiff files an amended complaint that states a claim upon which relief can be granted. The clerk of the court is directed to set the following pro se case management deadline in this matter with the following text: February 28, 2018: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD SATISH EMRIT,
Plaintiff,

4:17CV3133

vs.
JOHN A. GALE, Secretary of State of
Nebraska; and DEMOCRATIC PARTY
OF THE STATE OF NEBRASKA,

MEMORANDUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on October 10, 2017. (Filing No. 1.) He has
been given leave to proceed in forma pauperis. (Filing No. 5.) The court now
conducts an initial review of Plaintiff’s Complaint to determine whether summary
dismissal is appropriate under 28 U.S.C. § 1915(e)(2). As part of its initial review,
the court will not consider Plaintiff’s Amended Complaint (Filing No. 12) and
Second Amended Complaint (Filing No. 13) which were filed without the court’s
permission on November 13, 2017, and December 11, 2017, respectively, but
instead will order the pleadings stricken.1 See Fed. R. Civ. P. 15(a); NECivR.
15.1.
I. SUMMARY OF COMPLAINT
Plaintiff brings this action against John A. Gale, the Secretary of State of
Nebraska, and the Democratic Party of the State of Nebraska. Plaintiff alleges he
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A cursory review of both the Amended Complaint and Second Amended Complaint
shows that the majority of their content consists of Plaintiff’s musings and commentary about
recent current events as well as happenings from Plaintiff’s own life that have no bearing on the
legal claims Plaintiff raises in his Complaint. (See Filing No. 12 at CM/ECF pp.4–12; Filing No.
13 at CM/ECF pp.1–17.) As the legal claims raised in the Amended Complaint and Second
Amended Complaint are mere restatements of claims in the original Complaint, the court will not
consider the purported amended pleadings in conducting this initial review.

was denied his constitutional rights when Defendants refused to place him on the
ballot for the primary and general presidential election in 2016. He alleges this
claim is not moot because he has decided to run for President of the United States
in 2020 as a Democratic candidate.
Plaintiff alleges he is an indigent, disabled, and unemployed resident of the
state of Nevada, though his current mailing address on file with the court is in
Texas. Plaintiff states that he was a Democratic candidate for President of the
United States in the 2016 general election, but he was only placed on an official
ballot in Palm Beach County, Florida. He alleges that he “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).” (Filing No. 1 at CM/ECF p.4,
¶18.) Plaintiff allegedly obtained a candidate ID number and registered with the
Federal Election Commission. He was represented by a Political Action Committee
but not by any “Super PAC,” and he received no donations from any person or
entity. (Id., ¶¶20–21.)
Plaintiff brings this action under 42 U.S.C. § 1983, Title VII of the Civil
Rights Act of 1964 (“Title VII”), and the Americans with Disabilities Act
(“ADA”). He alleges Defendants violated his equal protection and substantive and
procedural due process rights under the Fifth and Fourteenth Amendments, as well
as the Privileges and Immunities Clause in Article IV, Section 2, Clause I, of the
United States Constitution (Comity Clause). Plaintiff also alleges state law claims
of negligence and breach of contract. For relief, he seeks 45 million dollars in
compensatory and punitive damages and injunctive relief in the form of ordering
Defendants to place him on the ballot for the primary and general election in
Nebraska in 2020.

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II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court
must dismiss a complaint or any portion of it that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569–70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”).
“The essential function of a complaint under the Federal Rules of Civil
Procedure is to give the opposing party ‘fair notice of the nature and basis or
grounds for a claim, and a general indication of the type of litigation involved.’”
Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014)
(quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a]
pro se complaint must be liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal
quotation marks and citations omitted).
Liberally construed, Plaintiff here alleges federal constitutional claims. To
state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the United States Constitution or created by federal statute and also
must show that the alleged deprivation was caused by conduct of a person acting
under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993).

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III. DISCUSSION OF CLAIMS
A. Sovereign Immunity
Plaintiff did not specify the capacity in which Secretary of State Gale is
sued. Where a plaintiff fails to “expressly and unambiguously” state that a public
official is sued in his individual capacity, the court “assume[s] that the defendant is
sued only in his or her official capacity.” Johnson v. Outboard Marine Corp., 172
F.3d 531, 535 (8th Cir. 1999). The Eleventh Amendment bars claims for damages
by private parties against a state, state instrumentalities, and an employee of a state
sued in the employee’s official capacity. See, e.g., Egerdahl v. Hibbing Cmty.
Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State
Univ., 64 F.3d 442, 446–47 (8th Cir. 1995). Any award of retroactive monetary
relief payable by the state, including for back pay or damages, is proscribed by the
Eleventh Amendment absent a waiver of immunity by the state or an override of
immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377–78 (8th
Cir. 1981). Thus, the Eleventh Amendment bars Plaintiff’s claim for damages
against Gale in his official capacity.
Sovereign immunity does not bar damages claims against state officials
acting in their personal capacities, nor does it bar claims brought pursuant to 42
U.S.C. §1983 that seek equitable relief from state employee defendants acting in
their official capacity. Plaintiff seeks equitable relief in the present case in the form
of an injunction requiring Defendants to place him on the 2020 primary and
general election ballots, in addition to damages from the Nebraska Democratic
Party. The court will therefore review the Complaint to determine if Plaintiff has
set forth sufficient allegations to proceed on any of his claims.

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B. Standing
Plaintiff has failed to allege sufficient facts to demonstrate that he has
standing to pursue his claims for equitable relief. Standing to seek injunctive relief
requires that
“a plaintiff must show that he is under threat of suffering ‘injury in
fact’ that is concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly traceable
to the challenged action of the defendant; and it must be likely that a
favorable judicial decision will prevent or redress the injury.”
Bernbeck v. Gale, 829 F.3d 643, 646 (8th Cir. 2016) (quoting Summers v. Earth
Island Inst., 555 U.S. 488, 493 (2009)). Also, if a plaintiff fails to make any
attempt to satisfy a precondition or follow a certain procedure to engage in an
activity or enjoy a benefit, that plaintiff lacks standing to sue. Id. at 648 (citing
Pucket v. Hot Springs Sch. Dist. No. 23–2, 526 F.3d 1151, 1161 (8th Cir. 2008));
see also Constitution Party of S.D. v. Nelson, 730 F.Supp.2d 992, 998–99 (D.S.D.
2010) (finding plaintiff who did not “even attempt to comply with” challenged
signature threshold lacked standing), vacated in part on other grounds, 639 F.3d
417 (8th Cir. 2011).
In the present case, Plaintiff merely states he was told by several secretaries
of state that he would need to obtain a minimum number of signed petitions from
the constituents of each jurisdiction in which he wanted to run for president in the
general election. Plaintiff does not allege that Secretary of State Gale was one of
those secretaries of state, nor does Plaintiff allege that he attempted to comply with
any requirement imposed by the State of Nebraska on potential candidates for the
office of President of the United States. Even if Plaintiff had sufficiently alleged
that he attempted to follow any ballot access procedure imposed by the State of
Nebraska, the allegations of Plaintiff’s Complaint fail to state any plausible claim
for relief as set forth in detail below.

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C. Constitutional Claims
1. State Actor
Under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States and must show that the
deprivation of that right was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). Here, Plaintiff asserts that Defendants have
violated his constitutional rights, but the Complaint lacks any indication that the
Nebraska Democratic Party is a state actor or is a willful participant in joint
activity with the State to deny constitutional rights. See Magee v. Tr. of Hamline
Univ, Minn., 747 F.3d 532, 536 (8th Cir. 2014). Indeed, as explained below, the
Complaint fails to sufficiently allege any constitutional violation whatsoever.
2. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that no
state shall “deny to any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. The clause essentially directs “that all persons
similarly situated should be treated alike.” City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439 (1985). To state an equal protection claim, a plaintiff
must establish that he was treated differently from others similarly situated to him.
Johnson v. City of Minneapolis, 152 F.3d 859, 862 (8th Cir. 1998).
Plaintiff alleges that because he is African-American, any federal, state, or
local laws/regulations restricting him from being on the ballot must pass a strict
scrutiny test. (Filing No. 1 at CM/ECF p.5, ¶¶23–24.) Plaintiff “argues in ‘good
faith’ that there is no compelling government objective in requiring him to obtain a
minimum number of petitions/signatures” in order to be placed on the ballot. (Id. at
p.6, ¶26.) However, Plaintiff does not allege any facts that show he was, or would
be, treated differently from those who are not African-American by being required
to provide a number of petition signatures to be placed on an election ballot.
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Plaintiff also does not allege what specific Nebraska laws or regulations restrict
him from being placed on the primary and general election ballots nor how these
laws violate his constitutional rights.
Every state has some type of ballot access law, including Nebraska. See, e.g.
Neb. Rev. Stat. § 32-620 (describing requirements for partisan and nonpartisan
candidates for office of President to be placed on general election ballot); Neb.
Rev. Stat. § 32-633 (requirements for write-in campaign for President). “[A]s a
practical matter, there must be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). Accordingly,
“[t]he Elections Clause gives States authority ‘to enact the numerous requirements
as to procedure and safeguards which experience shows are necessary in order to
enforce the fundamental right involved.’” U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 834 (1995) (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). States
are thus entitled to adopt “generally applicable and evenhanded restrictions that
protect the integrity and reliability of the electoral process itself.” Anderson v.
Celebrezze, 460 U.S. 780, 788 n. 9 (1983).
“For a ballot access restriction to be found unconstitutional, a challenger
first must establish that the law imposes a substantial burden.” Libertarian Party of
N. Dakota v. Jaeger, 659 F.3d 687, 694 (8th Cir. 2011). Here, Plaintiff does not
challenge the specific number of petitions or signatures required, but rather
disagrees with having to submit any petitions because he feels there is no
compelling government justification for it. Plaintiff’s claim lacks merit. Not only
does the Constitution permit it, but “[c]ommon sense . . . compels the conclusion
that government must play an active role in structuring elections.” Burdick v.
Takushi, 504 U.S. 428, 433 (1992). The Supreme Court has upheld challenges to
signature requirements, even those equaling 5% of the eligible voting base. See
Am. Party of Tex. v. White, 415 U.S. 767, 789 (1974) (“Demanding signatures
equal in number of 3% or 5% of the vote in the last election is not invalid on its
face . . . .”); Jennness v. Fortson, 403 U.S. 431, 438 (1971) (“[W]e cannot say that
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Georgia’s 5% petition requirement violates the Constitution.”). The court,
therefore, will dismiss Plaintiff’s equal protection claims for failure to state a claim
upon which relief can be granted.
3. Due Process
Plaintiff restates the allegations from his equal protection claim in support of
his due process claim, adding only that, “[a]t the very least, the plaintiff should
have been given notice and a hearing with regards to his not being placed on the
2016 ballots . . . and he should be given a notice and a hearing in the future if he
will be excluded from the ballots in 2020.” (Filing No. 1 at CM/ECF p.7, ¶33.)
The Due Process Clause provides that “no State shall . . . deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,
§ 1. “‘Parties whose rights are to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified.’” Lind v. Midland
Funding, L.L.C., 688 F.3d 402, 405–06 (8th Cir. 2012) (quoting Fuentes v. Shevin,
407 U.S. 67, 80 (1972)). To prevail on a due process claim, Plaintiff must
demonstrate that he was deprived of a protected liberty interest. See Persechini v.
Callaway, 651 F.3d 802, 806 (8th Cir. 2011) (citing Sandin v. Conner, 515 U.S.
472 (1995)).
For the reasons already discussed, Plaintiff has failed to allege a plausible
due process claim. Plaintiff does not have a protected liberty interest in having
unrestricted access to the primary and general election ballots in the state of
Nebraska. Moreover, Plaintiff has not alleged any facts to show Defendants acted
in such a way as to deprive Plaintiff of that purported liberty interest without due
process. Plaintiff, therefore, fails to state a procedural due process claim. Also, to
the extent Plaintiff seeks to assert a substantive due process claim, that claim also
fails as there are no allegations of any conduct by Defendants that would shock the
conscience. See Folkerts v. City of Waverly, Iowa, 707 F.3d 975, 980 (8th Cir.
2013) (“To establish a substantive due process violation, [a plaintiff] must
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demonstrate that a fundamental right was violated and that [the government
official’s] conduct shocks the conscience.”).
4. Privileges and Immunities Clause
The Privileges and Immunities Clause of the Constitution of the United
States provides: “The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.” U.S. Const. art. IV, § 2, cl. 1.
“Whether differential treatment of out-of-state residents violates this Clause
involves a two-part inquiry: (1) whether the state’s law discriminates against outof-state residents with regard to a privilege or immunity protected by the Clause,
and (2) if so, whether sufficient justification exists for the discrimination.”
Minnesota ex rel. Hatch v. Hoeven, 456 F.3d 826, 834 (8th Cir. 2006).
As previously stated, Plaintiff does not allege any facts that show he was, or
would be, treated differently from residents of Nebraska by being required to
provide a minimum number of petition signatures to be placed on an election
ballot. Plaintiff has not stated a plausible claim for relief under the Privileges and
Immunities Clause.
5. Title VII
Plaintiff alleges Defendants violated Title VII of the Civil Rights Act of
1964 by failing to place him on the 2016 ballot and will violate Title VII if they
continue to exclude him from future ballots. (Filing No. 1 at CM/ECF p.11, ¶¶44–
45.) Title VII contains anti-discrimination provisions based on employment. See 42
U.S.C. § 2000e-2(a)(1); Schwieger v. Farm Bureau Ins. Co. of NE, 207 F.3d 480,
483 (8th Cir. 2000) (“Title VII . . . protects only employees.”). Plaintiff is
unemployed and is clearly not employed by either the State of Nebraska or the
Nebraska Democratic Party. Plaintiff’s Title VII claim is frivolous and will be
dismissed.

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6. ADA
Plaintiff asserts that Defendants have violated the ADA by excluding him
from the ballots in Nebraska in the 2016 and 2020 primary and general presidential
elections. (Filing No. 1 at CM/ECF pp.12–13, ¶50.) The ADA provides:
[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
42 U.S.C.A. § 12132.
While Plaintiff alleges he is disabled within the meaning of the ADA, the
court cannot reasonably infer from the allegations in the Complaint that he was
discriminated against in any way by Defendants because of a disability. Plaintiff
fails to state a plausible claim for relief under the ADA, and such claim will be
dismissed.
D. State Law Claims
Plaintiff asserts negligence and contract claims against Defendants. Plaintiff
has not alleged any facts to show Defendants owed him any duty, let alone that
they breached any duty to him. See Stahlecker v. Ford Motor Co., 667 N.W.2d
244, 252–53 (Neb. 2003) (“In order to prevail in a negligence action, a plaintiff
must establish the defendant’s duty to protect the plaintiff from injury, a failure to
discharge that duty, and damages proximately caused by the failure to discharge
that duty.”). Similarly, the Complaint contains no allegations to support an
inference that a contract existed between the parties. Accordingly, Plaintiff’s state
law claims will be dismissed for failure to state a claim upon which relief can be
granted.

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IV. 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). However, out of an abundance of caution, Plaintiff will be given 30
days in which to amend the Complaint to correct the deficiencies described herein.
V. PENDING MOTIONS
Plaintiff has filed the following motions: Motion for Preliminary Injunction
(Filing No. 7), Motion to Request a Rule 16 Hearing (Filing No. 8), Motion for
Summary Judgment (Filing No. 9), Motion to Compel Discovery (Filing No. 10),
and Motion to Subpoena Witnesses (Filing No. 11). The court will deny all of
these motions without prejudice to reassertion should Plaintiff file an amended
complaint that states a plausible claim for relief.
IT IS THEREFORE ORDERED that:
1.
Plaintiff’s Amended Complaint (Filing No. 12) and Second Amended
Complaint (Filing No. 13) shall be stricken from the court file as unauthorized
pleadings.
2.
Plaintiff shall have 30 days in which to file an amended complaint that
states a claim on which relief may be granted against Defendants. Failure to file an
amended complaint within 30 days will result in the court dismissing this case
without further notice to Plaintiff.
3.
Plaintiff’s Motion for Preliminary Injunction (Filing No. 7), Motion
to Request a Rule 16 Hearing (Filing No. 8), Motion for Summary Judgment
(Filing No. 9), Motion to Compel Discovery (Filing No. 10), and Motion to
Subpoena Witnesses (Filing No. 11) are denied without prejudice to reassertion in

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the event Plaintiff files an amended complaint that states a claim upon which relief
can be granted.
4.
The clerk of the court is directed to set the following pro se case
management deadline in this matter with the following text: February 28, 2018:
check for amended complaint.
Dated this 29th day of January, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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