Opinion
07 Civ. 7622 (SAS).
August 31, 2007
Plaintiff (Pro se): George L. Espada, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
This matter comes before the Court by Order to Show Cause why a preliminary injunction should not be entered against defendants. Plaintiff, appearing pro se, seeks to be a candidate in the September 18, 2007 Democratic primary election for the position of "District Leader in Part A of the 68th Assembly District." Plaintiff argues that because the New York City Board of Elections ("BOE") wrongly determined that he "is still a Republican and not a duly qualified Democrat," his designating petition to participate in the primary election was rejected. Plaintiff asserts violations of New York State Election Law § 5-400, the Voting Rights Act, the Help America Vote Act of 2002, and the National Voter Registration Act of 1993, and seeks a court order validating his designating petition and placing him on the election ballot. Plaintiff's request to proceed in forma pauperis is granted. However, for the following reasons, plaintiff's request for injunctive relief is denied and the Complaint is dismissed without prejudice.
Complaint Compeling [sic] Validation of Petitioner's Designating Petition ("Compl.") at 3.
Id. ¶ 3.
Id. at 3.
II. BACKGROUND
III. LEGAL STANDARD
Id. ¶ 4.
See id. ¶ 6; 12/26/06 BOE Voter Registration Form for George L. Espada and 5/1/07 BOE Voter Registration Form for George L. Espada ("BOE Voter Forms"), Exs. C and I to Compl.
See BOE Voter Forms.
Compl. ¶ 8.
See id. ¶ 9.
See id. ¶ 10.
Id. ¶ 5.
Id. ¶ 7.
Id. at 3.
See Lusk v. Village of Cold Spring, 475 F.3d 480, 485 (2d Cir. 2007). See also Finch v. New York State Office of Children Family Servs., No. 04 Civ. 1668, 2007 WL 1982752 (S.D.N.Y. July 3, 2007).
A. Motion to Dismiss — Rule 12(b)(1)
Rule 12(b)(1) provides for the dismissal of a claim when the federal court "lack[s] . . . jurisdiction over the subject matter." Plaintiff bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.
See Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). See also Goonewardena v. New York, No. 05 Civ. 8554, 2007 WL 510097, at *6 (S.D.N.Y. Feb. 14, 2007) ("[T]he burden of demonstrating that the court has subject matter jurisdiction over the case falls on the plaintiff as it is the plaintiff who seeks to invoke the court's jurisdiction.").
In considering a motion to dismiss for lack of subject matter jurisdiction, the court must assume the truth of the material factual allegations contained in a complaint. However, "jurisdiction must be shown affirmatively and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." In fact, "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits."
See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citing J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004)).
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Norton v. Larney, 266 U.S. 511, 515 (1925)).
LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999).
The subject matter jurisdiction of the federal district courts is limited and is generally set forth in 28 U.S.C. §§ 1331 and 1332. Under these statutes, federal subject matter jurisdiction is available only when a federal question is presented or when plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds the sum or value of $75,000. A party seeking relief in the district court must at least plead facts which bring the suit within the court's subject matter jurisdiction. Failure to plead such facts warrants dismissal of the action.
See 28 U.S.C. §§ 1331, 1332.
See Fed.R.Civ.P. 8(a)(1).
See Fed.R.Civ.P. 12(h)(3). See also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) ("[S]ubject-matter delineations must be policed by the courts on their own initiative"); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (courts have an independent obligation to examine the basis of their jurisdiction).
B. Motion to Dismiss — Rule 12(b)(6)
"Federal Rule of Civil Procedure 8(a)(2) requires . . . 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" When deciding a motion to dismiss under Rule 12(b)(6), the court must "accept as true all of the factual allegations contained in the complaint" and "draw all reasonable inferences in plaintiff's favor." Nevertheless, to survive a 12(b)(6) motion to dismiss, the allegations in the complaint must meet the standard of "plausibility." Although the complaint need not provide "detailed factual allegations," it must "amplify a claim with some factual allegations . . . to render the claim plausible." The test is no longer whether there is "'no set of facts'" that plaintiff could prove "'which would entitle him to relief.'" Rather, the complaint must provide "the grounds upon which [the plaintiff's] claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'"
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (quoting Fed.R.Civ.P. 8(a)(2)).
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
Ofori-Tenkorang v. American Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006).
See Bell Atlantic, 127 S. Ct. at 1970.
Id. at 1964. Accord ATSI Commc'ns v. Shaar Fund, Ltd., 493 F.3d 87, 98 n. 2 (2d Cir. 2007) (applying the standard of plausibility outside Twombly's anti-trust context).
Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis in original) (holding that the plaintiff's complaint adequately alleged the personal involvement of the Attorney General because it was plausible that officials of the Department of Justice would be aware of policies concerning individuals arrested after 9/11).
Bell Atlantic, 127 S. Ct. at 1969 (quoting Conley v. Gibson, 355 U.S. 45-46 (1957)) ("[t]he phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard").
ATSI Commc'ns, 493 F.3d at 98 (quoting Bell Atlantic, 127 S. Ct. at 1965).
Although the court must take the plaintiff's allegations as true, "the claim may still fail as a matter of law . . . if the claim is not legally feasible." In addition, "bald assertions and conclusions of law will not suffice." However, a pro se plaintiff is entitled to have his pleadings held to "less stringent standards than formal pleadings drafted by lawyers." Accordingly, a pro se plaintiff's papers should be interpreted "'to raise the strongest arguments that they suggest.'"
In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 457 F. Supp. 2d 455, 459 (S.D.N.Y. 2006) (citing Allaire Corp. v. Okumus, 433 F.3d 248, 250 (2d Cir. 2006)).
Law Offices of Curtis V. Trinko, L.L.P. v. Bell Atlantic Corp., 309 F.3d 71, 74 (2d Cir. 2002) (quotation omitted).
Haines v. Kerner, 404 U.S. 519, 520 (1972).
McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
IV. DISCUSSION
A. Federal Subject Matter Jurisdiction
In order to invoke federal question subject matter jurisdiction, plaintiff's claims must arise "under the Constitution, laws, or treaties of the United States." The Court liberally construes plaintiff's pro se complaint to assert constitutional claims pursuant to 42 U.S.C. § 1983. However, such liberal construction does not benefit plaintiff here because the gravamen of his Complaint involves the application of a state law — New York Election Law § 5-400 — and does not present a federal question. That New York statute provides that a voter's registration shall be cancelled if he has "[m]oved his residence outside the city or county in which he is registered." The BOE determined that plaintiff's original voter registration was never cancelled because plaintiff failed to inform it of his move to Florida, a factual finding that plaintiff disputes. Plaintiff contends that the BOE, as his former employer, knew of his relocation to another state, and was further informed of that fact when he re-registered in New York and indicated on his registration forms that he had last voted in Florida. This dispute falls squarely within the parameters of state law. That the BOE's decision resulted in the rejection of his designating petition to participate in an election does not create a federal question.
28 U.S.C. § 1331. See State of New York v. White, 528 F.2d 336, 338 (2d Cir. 1975) ("Federal question jurisdiction may be properly invoked only if the plaintiff's complaint necessarily draws into question the interpretation or application of federal law").
See Haines, 404 U.S. at 520-21; Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (pro se complaints "must be read liberally and should be interpreted 'to raise the strongest arguments that they suggest'") (citation omitted).
N.Y. Election Law § 5-400 (2007). See also Thompson v. Karben, 295 A.D.2d 438, 439 (2d Dep't 2002).
See Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 469 (2d Cir. 2006) (not every "mundane election dispute" gives rise to federal court review merely by framing the issue in constitutional terms); Shannon v. Jacobowitz, 394 F.3d 90, 96 (2d Cir. 2005) (federal court intervention in "garden variety" election disputes is inappropriate) (citation omitted).
Moreover, none of the federal statutes plaintiff invokes apply to the controversy at issue in his Complaint. The Voting Rights Act protects individuals whose right to vote or participate in the electoral process has been infringed on account of the voter's race or color. Nowhere does plaintiff assert that the BOE's decision regarding his voter registration was motivated by a discriminatory animus. While he notes that "1400 Black and Hispanic" individuals signed his designating position, that fact alone, absent any allegations relating to infringement of voting rights based on race or color, fails to implicate the Voting Rights Act.
See 42 U.S.C. §§ 1971, 1973, 1974.
Moreover, plaintiff does not have standing to bring these claims on behalf of persons who are not parties to this litigation, and he fails to plead any allegations in support of any third-party or associational standing. See Transport Workers Union of America v. New York City Transit Auth., 342 F. Supp. 2d 160, 167 n. 41 (S.D.N.Y. 2004) ("[A] plaintiff must meet three requirements in order to establish such third-party standing . . . an injury in fact . . . a close relationship with the third party . . . [and] some hindrance to the third parties' ability to protect their own interests") (citing Powers v. Ohio, 499 U.S. 400 410 (1991)). The burden of establishing standing rests with the party invoking federal jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) ("To qualify as a party with standing to litigate . . . an interest shared generally with the public will not do.").
Plaintiff fares no better under the Help America Vote Act of 2002 ("HAVA") or the National Voter Registration Act ("NVRA"), both of which he references in his Complaint. HAVA was enacted in response to problems identified during the 2000 presidential election, and requires, inter alia, that states create and maintain a computerized statewide voter registration list and create a provisional ballot system for people whose names do not appear on a particular polling station list. At least one court has found that the HAVA "creates in voters in federal elections" a private right of action to "cast a provisional ballot for federal offices" when the voter's name does not appear on the voter registration list at her polling site, or when her qualifications are challenged. That right also extends to having the votes for federal office on that provisional ballot tabulated if it is later determined that she is qualified to vote in the jurisdiction where the ballot was cast.
See Women Voters of Albuquerque/Bernalillo Co., Inc. v. Santillanes, No. 05 Civ. 1136, 2007 WL 782167, at *4 (D.N.M. Feb. 12, 2007); League of Women Voters of Ohio v. Blackwell, 432 F. Supp. 2d 723, 731 (N.D. Ohio 2005).
Bay County Democratic Party v. Land, et al., 347 F. Supp. 2d 404, 424-27, 438 (E.D. Mich. 2004) ("[O]ther sections of HAVA, perhaps a majority of them, primarily regulate the conduct of officials involved in the voting process. There can be little question, however, that the language [regarding the casting of provisional ballots] was intended to benefit voters who are turned away from the polls.").
The NVRA, recognizing that "discriminatory and unfair registration laws and procedures" may deter voter participation, particularly in minority communities, establishes procedures designed to encourage voter participation, such as offering voter registration services at public locations. One of the central purposes of the NVRA is to "increase voter participation in federal elections by eliminating barriers to voting," and to strike a balance between facilitating registration and preventing fraudulent voting. It also seeks to ensure that once registered, voters cannot be removed from registration rolls by a failure to vote or a change of address within the jurisdiction. Although the NVRA expressly creates a private right of action, one court, on first impression, found that this right does not apply to alleged violations predicated on state ballot questions, but only for violations "in the context of elections for federal offices."
42 U.S.C. § 1973gg. See also ACORN v. Miller, 912 F. Supp. 976, 979 (W.D. Mich. 1995), aff'd., 129 F.3d 833 (6th Cir. 1997); United States v. State of Missouri, No. 05 Civ. 4391, 2006 WL 1446356, at *1 (W.D. Mo. May 23, 2006).
Dobrovolny v. Nebraska, 100 F. Supp. 2d 1012, 1030 (D. Neb. 2000).
See Welker v. Clarke, 239 F.3d 596, 598-99 (3d Cir. 2001); Ortiz v. City of Phila. Office of City Comm'rs Voter Registration Div., 28 F.3d 306, 318-19 (3d Cir. 1994).
See 42 U.S.C. § 1793gg-9(b).
Dobrovolny, 100 F. Supp. 2d at 1027-30 ("I find that the word and structure of the NVRA indicate that a private right of action to enforce the voter registration list maintenance provisions of the NVRA is limited to challenges by voters harmed by violations of the NVRA in the context of elections for federal offices.").
Plaintiff does not allege that he is being prevented from registering to vote or from casting a provisional ballot, nor does he allege that he has been subjected to discriminatory or otherwise unfair registration laws or procedures in the context of any federal election. Nowhere does he allege that New York State Election Law § 5-400 is somehow contrary to either the HAVA or the NVRA. While the scope of protections afforded to voters by federal statutes is significant, none are implicated by plaintiff's narrow allegation that because BOE incorrectly determined that his party enrollment from an earlier registration remained active, he is now unable to run as a candidate in a party primary for a non-federal office. Therefore, plaintiff does not raise a federal question for the Court to consider.
B. Due Process
Plaintiff's Complaint also fails to raise a cognizable federal due process claim. The Due Process Clause of the Fourteenth Amendment prohibits states (and municipalities) from "depriving any person of life, liberty, or property without due process of law," and entitles individuals to notice and an "opportunity to present their objections." To the extent that plaintiff availed himself of administrative review procedures, it appears that he received the process he was due. Plaintiff was given the opportunity to be heard at a hearing conducted on August 2, 2007, pursuant to which the BOE rendered its decision. Indeed, plaintiff even acknowledges that he had representation at that hearing. Despite plaintiff's apparent disagreement with the BOE's determination, it does not appear that he sought state court review of the decision, a remedy that is available to him. While plaintiff "need not exhaust remedies before bringing a [section] 1983 action claiming a violation of due process, one must nevertheless show that the state procedural remedies are inadequate." Here, plaintiff makes no allegation that the BOE hearing (or any of the available state procedural remedies, including the state court) was inadequate or otherwise defective. Thus, where plaintiff was provided with an opportunity to be heard, and where a possible remedy through the state court is available, his federal due process claims under section 1983 are dismissed for failure to state a claim on which relief may be granted.
See Graham, 89 F.3d at 79.
U.S. Const. amend. XIV, § 1.
Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950). Accord Hudson v. Palmer, 468 U.S. 517, 533 (1984) (Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, only against deprivations without due process of law); Parratt v. Taylor, 451 U.S. 527, 543-44 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Powell v. Power, 436 F.2d 84, 88 (2d Cir. 1970) (finding no due process violation where New York State law provides an adequate remedy for correcting errors in the administration of an election); Denis v. New York City Bd. of Elections, No. 94 Civ. 7077, 1994 WL 613330, at *3 (S.D.N.Y. Nov. 7, 1994) (same).
See Compl. at 3.
See, e.g., Thompson, 295 A.D.2d at 439 (state court holding that evidence was insufficient to warrant cancellation of a county legislator's voter registration and party enrollment); Gorycki v. Greenberg, 122 A.D.2d 913, 914 (2d Dep't 1986) (state court holding that candidate who had registered in another state was not a registered voter and thus not eligible to appear on the ballot).
Vialez v. New York City Hous. Auth., 783 F. Supp 109, 113-14 (S.D.N.Y. 1991) (citations omitted).
Because the instant claims must be dismissed, plaintiff is not entitled to injunctive relief. Accordingly, plaintiff's request for an Order to Show Cause is hereby denied.
V. CONCLUSION
Despite affording this pro se complaint the close and sympathetic reading to which it is entitled, the Court finds no basis for the exercise of subject matter jurisdiction over plaintiff's suit. Therefore, the Complaint, filed in forma pauperis under 28 U.S.C. § 1915(a)(1), is dismissed sua sponte because it fails to allege any facts establishing subject matter jurisdiction and therefore "lacks an arguable basis either in law or in fact." Plaintiff's Order to Show Cause is denied for the reasons stated herein.
See Haines, 404 U.S. at 520-21.
See Fed.R.Civ.P. 12(b)(1), 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(ii). See also Hassan v. U.S. Dep't of Veteran's Affairs, 137 Fed. Appx. 418, 419-20 (2d Cir. 2005) (summary order); Manway Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983) (citing Fed.R.Civ.P. 12(h) when stating that courts may dismiss cases sua sponte for lack of subject matter jurisdiction).
Neitzke v. Williams, 490 U.S. 319, 325 (1989). See also 28 U.S.C. § 1915(e)(2)(B)(ii).
When a complaint is dismissed because of pleading deficiencies, the usual remedy is to permit a plaintiff to amend his complaint. Leave to amend is especially appropriate here given plaintiff's pro se status. Accordingly, plaintiff is hereby granted leave to amend his Complaint in a manner consistent with this order.
See Fed.R.Civ.P. 15(a) ("[L]eave [to amend] shall be freely given when justice so requires"). See also Foman v. Davis, 371 U.S. 178, 183 (1962) (stating that refusal to grant leave to amend without reason is an abuse of discretion and inconsistent with the spirit of the Federal Rules).
See Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (a litigant who is proceeding pro se should be afforded every reasonable opportunity to demonstrate that he has a valid claim") (citation and internal quotation marks omitted); Cohen v. Federal Exp. Corp., No. 06 Civ. 482, 2007 WL 1284894, at *1 (S.D.N.Y. Apr. 30, 2007); LaSala v. Needham Co., Inc., 399 F. Supp. 2d 466, 476 (S.D.N.Y. 2005).
SO ORDERED: