United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT
GRANT PLAINTIFF'S APPLICATION TO PROCEED WITHOUT
PREPAYING FEES AND DISMISS THE COMPLAINT WITH LEAVE TO
RICHARD L. PUGLISI, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Ronald Satish Emrit's Application
to Proceed in District Court Without Prepaying Fees or Costs,
filed on October 10, 2017 ("Application"). ECF No.
2. After careful consideration, the Court FINDS AND
RECOMMENDS that the district court GRANT Plaintiff's
Application and DISMISS the Complaint with leave to amend.
Complaint, Plaintiff states that he was a Democratic
candidate for president of the United States in the 2016
general election and has decided to run again in 2020. ECF
No. 1 ¶¶ 16, 26. Plaintiff alleges that he was not
placed on the ballot in any jurisdiction except Palm Beach
County, Florida. Id. ¶ 17. Plaintiff alleges
that he was "told by several secretaries of state"
that he would have to get a minimum number of petitions
signed in order to be placed on the ballot. Id.
¶ 18. Plaintiff alleges that he is African-American and
disabled. Id. ¶¶ 6, 23. Plaintiff asserts
claims for violations of the Equal Protection Clause, the Due
Process Clause, the Privileges and Immunities Clause, 42
U.S.C. § 1983, Title VII of the Civil Rights Act of
1964, and the Americans with Disabilities Act, and state law
claims for negligence and breach of contract. Id.
¶¶ 23-55. Plaintiff requests $45, 000, 000 in
damages, injunctive relief, and liquidated damages.
Id. at 15-17.
Application states that he is not employed, receives $789 a
month from Social Security, and has $1, 230 in monthly
expenses. ECF No. 2 at 1-5.
The Court RECOMMENDS that the District Court GRANT
may authorize the commencement of any suit without prepayment
of fees by a person who submits an affidavit that the person
is unable to pay such fees. 28 U.S.C. § 1915(a)(1). For
purposes of determining whether to grant an application to
proceed without prepayment of fees, "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." Adkins v. E.I. Du Pont De Nemours & Co.,
Inc., 335 U.S. 331, 339 (1948) (internal quotations
Plaintiff's Application states that he receives $789 a
month from Social Security and has $1, 230 in monthly
expenses. ECF No. 2 at 1-5. Based on the information provided
in Plaintiff's Application, the Court finds that
Plaintiff has demonstrated that he is unable to pay court
fees at this time and RECOMMENDS that the district court
GRANT his Application. See 28 U.S.C. § 1915.
The Court RECOMMENDS that the District Court DISMISS
Plaintiff's Complaint With Leave to Amend.
Court must subject each civil action commenced pursuant to
Section 1915(a) to mandatory screening and order the
dismissal of any claim that it finds "frivolous,
malicious, failing to state a claim upon which relief may be
granted, or seeking monetary relief from a defendant immune
from such relief." 28 U.S.C. § 1915(e)(2)(B);
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(stating that 28 U.S.C. § 1915(e) "not only permits
but requires" the court to dismiss a § 1915(a)
complaint that fails to state a claim); Calhoun v.
Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (holding that
the provisions of 28 U.S.C. § 1915(e)(2)(B) are not
limited to prisoners). Because Plaintiff is appearing pro se,
the Court liberally construes his Complaint. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007).
the Court may dismiss a complaint pursuant to Federal Rule of
Civil Procedure 12(b) (6) for "failure to state a claim
upon which relief can be granted[.]" A Rule 12(b)(6)
dismissal is proper when there is either a "'lack of
a cognizable legal theory or the absence of sufficient facts
alleged.'" UMG Recordings, Inc. v. Shelter
Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A
plaintiff must allege "sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber
v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065
(9th Cir. 2008). "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." Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). Factual
allegations that only permit the Court to infer "the
mere possibility of misconduct" do not show that the
pleader is entitled to relief as required by Federal Rule of
Civil Procedure 8. Id. at 679; Fed.R.Civ.P. 8(a)
(requiring that the complaint contain a short and plain
statement showing that the plaintiff is entitled to relief).
Court FINDS that the Complaint fails to state a claim. As an
initial matter, the Court lacks jurisdiction over all of
Plaintiff's claims for money damages against the
Secretary of State of Hawaii. See Young v. Hawaii,
911 F.Supp.2d 972, 983 (D. Haw. 2012). Regarding
Plaintiff's constitutional claims, although ballot
qualification provisions may implicate certain constitutional
rights, see Bullock v. Carter, 405 U.S. 134, 141
(1972), Plaintiff's allegations do not state how
Defendants have violated his constitutional rights.
Plaintiff's Complaint does not allege any facts regarding
the actions of Defendants. Rather, the Complaint merely
states that Plaintiff was told that some states require
signed petitions for ballot access. See ECF No. 1
¶ 18. This single allegation is insufficient to state a
claim. Regarding Plaintiff's claim for a violation of
Title VII of the Civil Rights Act of 1964, which prohibits
employers from discriminating against employees, there are no
allegations in the Complaint that Plaintiff was employed by
Defendants or sought employment from Defendants. See
Nowick v. Gammell, 351 F.Supp.2d 1025, 1038 (D. Haw.
2004) (holding that the existence of an employment
relationship with defendant is necessary to establish a Title
VII violation). Regarding Plaintiff's claim for a
violation of the Americans with Disabilities Act, Plaintiff
does not include any factual allegations regarding how he was
discriminated against based on a disability. Although
Plaintiff alleges that he is disabled, he does not include
any facts regarding how he was discriminated against by
Defendants based on his disability. Regarding Plaintiff's
state law claim, "the Eleventh Amendment completely
immunizes states, state agencies, and state officials sued in
their official capacities from state-law claims brought in
federal court." McNally v. Univ. of Haw., 780
F.Supp.2d 1037, 1059 (D. Haw. 2011). Even putting aside the
issue of immunity, Plaintiff's state law claim for
negligence must fail because he does not allege a duty of
care recognized by the law. See White v. Sabatino,
415 F.Supp.2d 1163, 1173 (D. Haw. 2006) (stating the required
elements for negligence). Plaintiff's state law claim for
breach of contract must also fail because he does not allege
the existence of a contract between Plaintiff and Defendants.
See Wyndham Vacation Resorts, Inc. v. Architects Haw.
Ltd., Grp. Pac. (Hawaii), Inc., 703 F.Supp.2d 1051, 1062
(D. Haw. 2010) ("To prevail on this breach of contract
claim, [plaintiff] must establish that a contract exists, and
that [defendant] failed to perform as required by the
the Complaint is deficient, the Court recognizes that
"[u]nless it is absolutely clear that no amendment can
cure the defect . . ., a pro se litigant is entitled to
notice of the complaint's deficiencies and an opportunity
to amend." Lucas v. Dep't of Corr., 66 F.3d
245, 248 (9th Cir. 1995); see also Lopez v. Smith,
203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). Accordingly,
the Court RECOMMENDS that Plaintiff's Complaint be
dismissed with leave to file an amended complaint to address
the deficiencies identified above, no later than thirty days
from the district court's adoption of this Findings and
Recommendation. If Plaintiff chooses to file an amended
complaint, the document must be ...