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Emrit v. Secretary of State of Hawaii

United States District Court, D. Hawaii

January 2, 2018

RONALD SATISH EMRIT, Plaintiff,
v.
SECRETARY OF STATE OF HAWAII, et al., Defendants.

          ORDER DISMISSING CASE

          DERRICK K. WATSON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         On December 11, 2017, Ronald Satish Emrit, proceeding pro se, filed a Third Amended Complaint (Dkt. No. 30) that again attempts to assert federal civil rights claims against the Secretary of State of Hawaii and the Democratic Party of Hawaii, alleging that he was unlawfully denied placement on the ballot for the presidential election in 2016. This action is one of numerous, identical lawsuits Emrit filed in October 2017 in federal courts across the United States. The Third Amended Complaint suffers from the same deficiencies as its predecessors, previously identified in the Court's October 17, 2017 and November 20, 2017 Orders dismissing with leave to amend both his initial Complaint and First Amended Complaint. See Dkt. Nos. 4 (10/17/17 F&R), 6 (11/6/17 Order Adopting F&R), and 23 (11/20/17 Order).[1] Because Emrit once more fails to state a claim for relief, and because the Court determines that further leave to amend would be futile, the Third Amended Complaint is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e).

         DISCUSSION

         I. Standard of Review

         The Court subjects each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and can order the dismissal of any claims 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).

         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). This tenet-that the court must accept as true all of the allegations contained in the complaint-“is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”). “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 Rule 8. Id. at 679.

         Because Emrit is appearing pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). 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 prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

         A court may, however, deny leave to amend where further amendment would be futile. See, e.g., Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (Leave to amend may be denied “where the amendment would be futile.”). As noted in this Court's prior Order, although he is proceeding pro se, Emrit is more than familiar with his federal court filing and pleading responsibilities, given his numerous prior actions.[2]

         II. The TAC Is Dismissed For Failure To State A Claim

         Upon review of the Third Amended Complaint (“TAC”), the Court finds that Emrit again fails to state a claim upon which relief may be granted. He once more alleges violations of his equal protection and due process rights under the Fourteenth Amendment and a violation of Title VII, yet fails to cure the very same deficiencies noted in the Court's 11/20/17 Order dismissing his First Amended Complaint with limited leave to amend. In that Order, the Court took notice of the identical actions filed by Emrit against numerous other states this year, which have been summarily dismissed pursuant to the district courts' Section 1915 screening. See 11/20/17 Order at 5-6.[3] For example, the District Court for the Southern District of Indiana dismissed his claims against the Secretary of State of Indiana and the Democratic Party of Indiana, finding that Emrit's allegation that “his constitutional rights were violated when the defendants refused to place him on the ballot for the primary and general presidential election in 2016, ” failed to state a claim for violation of his equal protection and due process rights, under Title VII or the ADA, and for breach of contract or negligence. Emrit v. Lawson, 2017 WL 4699279, at *1 (S.D. Ind. Oct. 19, 2017). Likewise here, Emrit's re-asserted constitutional cause of action-following initial dismissal-that “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 in 2016 (already passed) and again in 2020 (in the future of course), ” TAC ¶¶ 79, 84, again fails to state a claim and “is frivolous.” Lawson, 2017 WL 4699279, at *2. Emrit asserts in the TAC that-

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