Emrit v. Toulouse Oliver et al

Filing 8

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera granting 2 Plaintiff's Application to Proceed in District Court Without Prepaying Fees or Costs and dismissing this case without prejudice. (baw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONALD SATISH EMRIT,
Plaintiff,
v.

No. 17cv1024 JCH/GBW

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

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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

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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), quasisuspect (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”).

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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 process claim, a plaintiff must
first establish that a defendant's actions deprived plaintiff of a protectible property
interest.
Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). The Court will
dismiss Plaintiff’s Fourteenth Amendment claim because there are no allegations that
Defendants’ actions deprived Plaintiff of a protectible property interest. In addition, as with the
Equal Protection claim, Defendant Toulouse Oliver is immune from claims for damages and
there are no allegations that Defendant Democratic Party of New Mexico was acting under color
of state law.
The Court will dismiss Plaintiff’s third and final claim for failure to state a claim.
Plaintiff asserts that “defendants have violated Title VII of the Civil Rights Act of 1964 by
failing to place him on the 2016 ballot for the primary and general presidential election.” Second
Amended Complaint at 22. Under Title VII it is unlawful “to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms,

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conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e–2(a)(1). “To set forth a prima facie case of discrimination
[under Title VII], a plaintiff must establish that (1) she is a member of a protected class, (2) she
suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she
was treated less favorably than others not in the protected class.” Khalik v. United Air Lines, 671
F.3d 1188, 1192 (10th Cir. 2012). Plaintiff has not alleged that he was employed by Defendants
or suffered an adverse employment action.
Having dismissed all of Plaintiff’s claims for failure to state a claim or because they seek
monetary relief against a defendant who is immune from such relief, and because Plaintiff is
proceeding in forma pauperis pursuant to 28 U.S.C. § 1915, the Court will dismiss this action.
See 28 U.S.C. § 1915(e)(2) (“the court shall dismiss the case at any time if the court determines
that . . . the action . . . fails to state a claim on which relief may be granted; or . . .seeks monetary
relief against a defendant who is immune from such relief”).
Service on Defendants
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides
that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants because it is
dismissing this case.

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IT IS ORDERED that Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed October 10, 2017, is GRANTED.
IT IS ALSO ORDERED that this case is DISMISSED without prejudice.

__________________________________
UNITED STATES DISTRICT JUDGE

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