Opinion
CA 00-0328-CB-C.
October 24, 2000.
REPORT AND RECOMMENDATION
This cause is before the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(d). Plaintiff, Keith Russell Judd, a convicted felon presently serving time at FCI Big Spring in Big Spring, Texas, filed this action in this Court on March 10, 2000, alleging as his sole basis for jurisdiction 28 U.S.C. § 1251. (Docs. 1-2) Following a complete and thorough review of the complaint, the undersigned recommends that the complaint be dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
"A full-time magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a district judge a report containing proposed findings of fact and recommendations for the disposition of complaints filed by prisoners challenging the conditions of their confinement." SD ALA LR 72.1(d).
The undersigned construes this action as a pro se prisoner complaint pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Nacotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), founded on the jurisdictional basis of 28 U.S.C. § 1251. (See id.)
FINDINGS OF FACT
1. Plaintiff's complaint, deemed filed pursuant to 42 U.S.C. § 1983 and Bivens, supra, with the stated jurisdictional basis being 28 U.S.C. § 1251, seeks an emergency writ of mandamus ordering the State of Alabama to place his name "on the Ballot for the 11-7-2000 General Election For President of the United States." (Docs. 1-2)
2. The sole facts plaintiff cites to in support of his claim are the following: "Petitioner registered with the State and the Federal Election Commission in 1995, 1996, 1997, 1998, 1999, 2000 but was denied a place on Ballot." (Id.)
CONCLUSIONS OF LAW
1. The federal in forma pauperis statute provides in relevant part that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that — (A) the allegation of poverty is untrue; or (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915 (e)(2). The statute mandates dismissal of frivolous complaints or complaints which fail to state a claim upon which relief may be granted brought by litigants proceeding in forma pauperis. See, e.g., Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999).2. A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-1832, 104 L.Ed.2d 338 (1989); see also Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999) ("A district court may dismiss as frivolous the complaint of a prisoner proceeding in forma pauperis if it lacks an arguable basis in law or fact."). "A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist. A complaint lacks an arguable basis in fact if, after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (internal quotation marks and citations omitted); see also Neitzke, supra, 490 U.S. at 325, 109 S.Ct. at 1832 ("`[F]rivolous,' when applied to a complaint, embraces not only the inarguable legal conclusions, but also the fanciful factual allegations."). The frivolousness determination is a discretionary one which is "entrusted to the discretion of the [district] court entertaining the in forma pauperis petition." Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). In this case, there are several reasons the instant case need be dismissed as frivolous.
3. Plaintiff cites to 28 U.S.C. § 1251 as the specific jurisdictional vehicle for bringing this action in this Court. (Docs. 1 2) Section 1251 reads in its entirety as follows:
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens.Id.
4. This Court clearly does not have jurisdiction over this case pursuant to 28 U.S.C. § 1251 because it is obviously not the Supreme Court nor does this action fall within one of the three categories set out in subsection (b). Because this is the sole jurisdictional vehicle upon which the plaintiff relies, the complaint is legally frivolous.
5. "A successful section 1983 action requires a showing that the conduct complained of (1) was committed by a person acting under color of state law and (2) deprived the complainant of rights, privileges, or immunities secured by the Constitution or laws of the United States." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) (citation omitted); see also Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1513 (11th Cir.) ("A successful section 1983 action requires that the plaintiff show she was deprived of a federal right by a person acting under color of state."), cert. denied, 522 U.S. 966, 118 S.Ct. 411, 139 L.Ed.2d 314 (1997). Moreover, "`[t]he effect of Bivens was, in essence, to create a remedy against federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials.'" Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995), quoting Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980), cert. denied sub nom. Dean v. County of Brazoria, Texas, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981).
6. Plaintiff's complaint is factually and legally frivolous because it fails to identify any person who acted under color of state or federal law, Judd identifying no state or federal official in the style of the complaint. Rather, plaintiff identifies as the sole defendants in this case the United States and Alabama (and perhaps another state) and therefore, his complaint is frivolous. Even if this Court was to construe plaintiff's bare factual allegations that he "registered with the State and the Federal Election Commission in 1995, 1996, 1997, 1998, 1999, 2000 but was denied a place on the Ballot[,]" as identifying persons acting under color of state or federal law, namely Alabama's Election Commission and the Federal Election Commission, plaintiff has failed to show how those individuals deprived him of any rights, privileges, or immunities secured by the Constitution or laws of the United States. First, plaintiff has not and clearly cannot satisfy this requirement, cf. Judd v. United States District Court for the Western District of Texas, 528 U.S. 5, 120 S.Ct. 1, 145 L.Ed.2d 7 (1999) ("Pro se petitioner [Keith Russell] Judd seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny this request as frivolous pursuant to Rule 39.8. Judd is allowed until November 2, 1999, within which to pay the docketing fees required by Rule 38 and to submit his petition in compliance with the Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for extraordinary writs from Judd in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1. Judd has abused this Court's certiorari and extraordinary writ processes. . . . The instant petition for certiorari. . . brings Judd's total number of frivolous filings to 12."), because he has not alleged that he has complied with Alabama's statutory requirements for having his name placed on the ballot for the general election to be held on November 7, 2000. Ala. Code § 17-7-1(a) ("The following persons shall be entitled to have their names printed on the appropriate ballot for the general election, provided they are otherwise qualified for the office they seek: (1) All candidates who have been put in nomination by primary election and certified in writing by the chair and secretary of the canvassing board of the party holding the primary and filed with the probate judge of the county, in the case of a candidate for county office, and the Secretary of State in all other cases, on the day next following the last day for contesting the primary election for that office if no contest is filed. If a contest is filed, then the certificate for the contested office must be filed on the day next following the date of settlement or decision of the contest. (2) All candidates who have been put in nomination by any caucus, convention, mass meeting, or other assembly of any political party or faction and certified in writing by the chair and secretary of the nominating caucus, convention, mass meeting, or assembly and filed with the probate judge, in the case of a candidate for county office, and the Secretary of State in all other cases, on or before 5:00 P.M. six days after the second primary election. (3) Each candidate who has been requested to be an independent candidate for a specified office by written petition signed by electors qualified to vote in the election to fill the office when the petition has been filed with the probate judge, in the case of a county office and with the Secretary of State in all other case, on or before 5:00 P.M. six days after the second primary election. The number of qualified electors signing the petition shall equal or exceed three percent of the qualified electors who cast ballots for the office of Governor in the last general election for the state, county, city, district, or other political subdivision in which the candidate seeks to qualify."); see Ala. Code § 17-8-2 ("The ballots printed in accordance with the provisions of this chapter shall contain the names of all candidates nominated by caucus, convention, mass meeting, primary election or other assembly of any political party or faction, or by petition of electors and certified as provided in Section 17-7-1, but the name of no person shall be printed upon the ballots who; not less than 20 days before the election, notifies the judge of probate in writing, acknowledged before an officer authorized by law to take acknowledgments, that he will not accept the nomination specified in the certificate of nomination or petition of electors. The name of each candidate shall appear but one time on said ballot and under only one emblem."); Ala. Code § 17-8-3 ("There shall be provided at each polling place at each election at which public officers are voted for, but one form of ballot for all the candidates for public office, and every ballot shall contain the names of all candidates whose nominations for any office specified on the ballot have been duly made and not withdrawn, as provided in this chapter, together with the title of the office, arranged in tickets under the titles of the respective political parties or independent bodies as certified in the certificates of nomination. When electors for the President and Vice-President of the United States are to be elected, the names of the candidates for President and Vice-President shall be listed on the ballot, but not the names of the electors."); Ala. Code § 17-19-2 ("(a) When presidential electors are to be chosen, the Secretary of State of Alabama shall certify to the judges of probate of the several counties the names of all candidates for President and Vice-President who are nominated by any national convention or other like assembly of any political party or by written petition signed by at least 5,000 qualified voters of this state. (b) The certificate of nomination by a political party convention must be signed by the presiding officer and secretary of the convention and by the chairman of the state executive or central committee of the political party making the nomination. Any nominating petition, to be valid, must contain the signatures as well as the addresses of the petitioners. Such certificates and petitions must be filed in the office of the Secretary of State no later than the last day of August next preceding the day fixed for the election. (c) Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen. Each person so listed shall execute the following statement which shall be attached to the certificate or petition when the same is filed with the Secretary of State: `I do hereby consent and do hereby agree to serve as elector for President and Vice-President of the United States, if elected to that position, and do hereby agree that, if so elected, I shall cast my ballot as such elector for . . . . . . . . . . . . . for President . . . . . . . . . . . . . . and for Vice-President of the United States' (inserting in said blank spaces the respective names of the persons named as nominees for said respective offices in the certificate to which this statement is attached)."). Moreover, plaintiff cannot satisfy this requirement due to his inability to show, given his status as a convicted federal felon presently serving a term of imprisonment in the Federal Correctional Institute in Big Spring, Texas, that his civil rights have been restored thereby allowing him to run for public office. See McGrath v. United States, 60 F.3d 1005, 1007 (2nd Cir. 1995) ("[T]he pertinent civil rights in question are those which most states extend by virtue of citizenship within their borders: (i) the right to vote; (ii) the right to hold elective office; and (iii) the right to sit on a jury."), cert. denied, 516 U.S. 1121, 116 S.Ct. 929, 133 L.Ed.2d 857 (1996); United States v. Cassidy, 899 F.2d 543, 549 (6th Cir. 1990) ("[A] `convicted felon' has his civil rights restored by operation of state law, with or without a certificate or order documenting the event, . . . [when he is again] entitled to vote, hold public office and serve on a jury. . . ."); cf. United States v. Geyler, 932 F.2d 1330, 1334 (9th Cir. 1991) ("`It is the state, not the federal government, that defines and restores a person's civil rights, even in relationship to the federal government.'"); Texas Supporters or Workers World Party Presidential Candidates v. Strake, 511 F. Supp. 149, 153 (S.D.Tex. 1981) ("If felons who have completed their sentences and paroles may constitutionally remain disenfranchised, it would seem axiomatic that convicted incarcerated felons may also constitutionally be deprived of their right to vote or run for elective office."); Hendrix v. Hunt, 607 So.2d 1254, 1256 (Ala. 1992) ("In Burr we held that an individual who has been convicted of a felony is not prohibited by Ala. Code 1975, § 36-2-1(a)(3), from holding public office, if he receives a pardon expressly restoring all civil and political rights."). Because any "state may impose reasonable requirements for access to a presidential . . . ballot[,]" Duke v. Smith, 13 F.3d 388, 394 (11th Cir. 1994), and plaintiff has not and cannot satisfy Alabama's requirements for access to its November 7, 2000 general election ballot, his complaint is factually and legally frivolous.
CONCLUSION
Based upon the foregoing reasons, it is recommended that the Court dismiss plaintiff's complaint against the defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.
MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND FINDINGS CONCERNING NEED FOR TRANSCRIPT
1. Objection . Any party who objects to this recommendation or anything in it must, within ten days of the date of service of this document, file specific written objections with the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of anything in the recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The procedure for challenging the findings and recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:
A party may object to a recommendation entered by a magistrate judge in a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636 (b)(1)(A), by filing a `Statement of Objection to Magistrate Judge's Recommendation' within ten days after being served with a copy of the recommendation, unless a different time is established by order. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis for the objection. The objecting party shall submit to the district judge, at the time of filing the objection, a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. It is insufficient to submit only a copy of the original brief submitted to the magistrate judge, although a copy of the original brief may be submitted or referred to and incorporated into the brief in support of the objection. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection.
A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district judge's order or judgment can be appealed.
2. Transcript (applicable Where Proceedings Tape Recorded) . Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee for a transcript, is advised that a judicial determination that transcription is necessary is required before the United States will pay the cost of the transcript.