Opinion
CV-23-00077-PHX-MTM
03-13-2023
Jean-Pierre Ronet, Plaintiff, v. Steven Richer, et al., Defendants.
ORDER
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE STEPHEN M. McNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
This Report and Recommendation is filed under General Order 21-25. Plaintiff commenced this civil action with a pro se Complaint for violation of civil rights and an Application to Proceed in District Court without paying fees or costs. Docs. 1, 2. The Court will grant the Application to Proceed. Doc. 2. The Court will recommend the Complaint be dismissed with leave to amend.
General Order 21-25 states in relevant part:
When a United States Magistrate Judge to whom a civil action has been assigned pursuant to Local Rule 3.7(a)(1) considers dismissal to be appropriate but lacks the jurisdiction to do so under 28 U.S.C. § 636(c)(1) due to incomplete status of election by the parties to consent or not consent to the full authority of the Magistrate Judge,
IT IS ORDERED that the Magistrate Judge will prepare a Report and Recommendation for the Chief United States District Judge or designee.
IT IS FURTHER ORDERED designating the following District Court Judges to review and, if deemed suitable, to sign the order of dismissal on my behalf:
Phoenix/Prescott: Senior United States District Judge Stephen M. McNamee. . . .
I. Application to Proceed Without Paying Fees or Costs
The Court will grant Plaintiff's Application to Proceed in District Court without paying fees or costs. 28 U.S.C. § 1915(a). Plaintiff may proceed without payment of the filing fee.
II. Statutory Screening of In Forma Pauperis Complaints
Under 28 U.S.C. § 1915(e)(2)(B), the Court is required to review complaints brought by all plaintiffs who are proceeding in forma pauperis and must dismiss a complaint, or portion of it, if the plaintiff has raised claims that are legally frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief.
A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A “complaint [filed by a pro se litigant] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.'” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc).
III. Complaint
Plaintiff alleges violations of his rights under the First, Fifth, and Fourteenth Amendments. Doc. 1 at 2. Plaintiff names as Defendants Maricopa County Recorder Steven Richer, Chair of Maricopa Board of Supervisors Bill Gates, Director of Election Services Rex Valenzuela, and Director of Election Day and Emergency Voting Scott Jarett. Doc. 1 at 2. All Defendants are named in their individual and official capacities. Doc. 1 at 2.
Plaintiff alleges his First, Fifth, and Fourteenth Amendment rights were violated when Defendant Richer failed to register him to vote. Doc. 1 and 2. According to Plaintiff, on September 29, 2022, he sent via certified mail an Arizona Voter Registration Form to Defendant Richer and that Defendant Richer received the Form on October 3, 2022. Doc. 1 at 1. Plaintiff alleges that he has been refused the right to vote in violation of the First, Fifth, and Fourteenth Amendments. He further alleges that Defendants' actions caused him to suffer “physical and mental pain and anguish.” Doc. 1 at 2.
Plaintiff also directs the Court's attention to a prior lawsuit filed in this Court by Plaintiff against Defendant Richer for failing to register Plaintiff to vote. See 2:21-cv-1677. In that case, Plaintiff alleged Defendant Richer and the Maricopa County Recorder's Office violated his equal protection rights and First Amendment right to vote in the November 2020 presidential election when they failed to send him anything after he submitted voter registration forms in 2019. 2:21-cv-1677, Doc. 12 at 4. The Court found Plaintiff, who had informed the Court that he was registered at the Maricopa County Sheriff's Office as a convicted sex offender, failed to state a claim because he did not allege that his right to vote had been restored or that A.R.S. § 16-101 was unconstitutional. 21-cv-1677, Doc. 12 at 8. Accordingly, after Plaintiff repeatedly failed to cure the deficiencies in his Complaint, the Court dismissed Plaintiff's Complaint without leave to amend. Doc. 12 at 9.
A.R.S. § 16-101 provides: “[e]very resident of the state is qualified to register to vote if he . . . [h]as not been convicted of treason or a felony, unless restored to civil rights.”
Here, Plaintiff alleges his First, Fifth, and Fourteenth Amendment rights were violated when Defendant Richer failed to register him to vote. Doc. 1 and 2. Generally, “[t]o state a claim . . . for a violation of the Equal Protection Clause . . . [,] a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Hydrick v. Hunter, 466 F.3d 676, 700 (9th Cir. 2006) (convicted sex offenders do not constitute a suspect class). The United States Supreme Court has also recognized “successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that [he] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002).
Plaintiff has not alleged he is a member of a protected class, Barren, 152 F.3d at 1194, or that he was treated differently from similarly situated individuals without a rational basis, Village of Willowbrook, 528 U.S. at 564. Indeed, it appears that Plaintiff was treated the same as all Arizona residents who had been convicted of a felony and had not had their civil rights restored. See A.R.S. § 16-101 (“Every resident of the state is qualified to register to vote if he . . . Has not been convicted of treason or a felony, unless restored to civil rights.”). Plaintiff does not allege that his right to vote had been restored or that A.R.S. § 16-101 is unconstitutional. As a result, Plaintiff has failed to state an equal protection claim.
Such a claim is likely barred by Richardson v. Ramirez, 418 U.S. 24 (1974), wherein the Supreme Court held that section 2 of the Fourteenth Amendment constitutes affirmative authorization for the disenfranchisement of felons. Id. at 54; see Miller v. Newsom, No. 20-08021 BLF (PR), 2021 WL 1087462 at *1-2 (N.D. Cal. March 19, 2021) (dismissing prisoner's allegation that defendant violated his rights by disenfranchising him because he is a convicted felon); Lawrie v. Harris, No. CIV S-11-0698 EFB P, 2011 WL 3501000 at *3 (E.D. Cal. Aug. 9, 2011) (stating the “First Amendment does not guarantee felons the right to vote.”); Oluwa v. Secretary of State, No. CIV S-05-1596 GEB DAD P, 2006 WL 3147682 at *3 (E.D. Cal. Nov. 1, 2006) (dismissing prisoner's allegation the secretary of state violated his Fourteenth Amendment rights by denying him the right to vote because he was felon in prison).
IT IS ORDERED Plaintiffs Application to Proceed in District Court without paying fees or costs (doc. 2) is GRANTED.
IT IS RECOMMENDED Plaintiffs Complaint (doc. 1) be DISMISSED WITHOUT PREJUDICE
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.