United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN, UNITED STATES DISTRICT JUDGE
filed a pro se lawsuit in this Court on October 12,
2017, pursuant to 42 U.S.C, § 1983 alleging that his
constitutional rights were violated when defendants refused
to place him on the ballot for the primary and general
presidential election in 2016. Plaintiff filed an amended
complaint on November 15, 2017, and a second amended
complaint on December 11, 2017, alleging equal protection and
substantive due process claims under the Fifth and Fourteenth
Amendments, as well as Title VII of the Civil Rights Act of
1964. Plaintiff argues, specifically, that because he is a
disabled, African-American man, it is a violation of his
constitutional rights to exclude him from placement on an
election ballot for failure to obtain the No. of petitions
(containing the required No. of signatures) under South
Dakota law. Plaintiff claims that he should have been given
notice and a hearing regarding his failure to be placed on
the primary and general presidential election ballots. He
seeks $250, 000 in damages and an injunction requiring
defendants to place him on these ballots. He alleges that his
claim is not moot as he intends to run for president in 2020,
Plaintiff filed an immediate appeal of his case to the United
States Court of Appeals for the Eighth Circuit following
filing of his second amended complaint. I granted plaintiffs
request to proceed without the prepayment of the filing fee
and declined to certify plaintiffs appeal in separate orders
on March 27, 2018. In my decision declining to certify
plaintiffs appeal, I noted that no appealable order had yet
been entered in this matter. The Eighth Circuit dismissed
plaintiffs appeal for failure to prosecute on June 4, 2018.
order granting plaintiff s request to proceed without the
prepayment of the filing fee, this Court, lacking
jurisdiction as a result of plaintiff s appeal, declined to
conduct the preservice review required by 28 U.S.C. §
1915. At this juncture, this Court should dismiss plaintiffs
complaint in accordance with the screening procedures set
forth in 28 U.S.C. § 1915(e)(2).
Standard of Review
brought in forma pauperis are subject to a two-step screening
process, which first requires the plaintiff to demonstrate
financial eligibility to proceed without prepayment of fees.
Martin-Trigona v. Stewart, 691 F.2d 856, 857 (8th
Cir. 1982); see e.g., Lundahl v. JP Morgan Chase
Bank, 2018 WL 3682503, *1 (D.S.D. 2018). This Court has
already granted plaintiffs motion to proceed in forma
second step of the in forma pauperis screening process
requires a district court to determine whether a pro se civil
action should be dismissed as "frivolous, malicious, or
fail[ing] to state a claim upon which relief may be
granted" or for "seek[ing] monetary relief from a
defendant who is immune from such relief." 28 U.S.C.
§ 1915(e)(2); Martin-Trigona, 691 F.2d at 857; see also
Lundahl, at *1. Pro se complaints must be liberally
construed. Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also Native Am. Council of Tribes v.
Solem, 691 F.2d 382 (8th Cir. 1982). Notwithstanding its
liberal construction, a pro se complaint may be dismissed as
frivolous "where it lacks an arguable basis either m law
or in fact;" that is, where the-claim, is "based on
an indisputably meritless legal theory" or where, having
"pierce[d] the veil of the complaint's factual
allegations," the court determines those facts are
"fantastic or delusional." Neitzke v.
Williams, 490 U.S. 319, 325, 327-28 (1989) (internal
citations omitted); see also Denton v. Hernandez,
504 U.S. 25, 33 (1992).
Plaintiff's Constitutional Claims Should be Dismissed
filed virtually identical claims in multiple jurisdictions in
the United States, all of which were dismissed pursuant to
the screening process required by 28 U.S.C. §
1915(e)(2). See, e.g., Emrit v. Penney, 2018 WL
1865159 (D. Idaho 2018); Emrit v. Dunlap, 2018 WL
1321567 (D. Me. 2018); Emrit v. Sec, of Hawaii, 2018
WL 264851 (D. Hawai'i 2018); Emrit v. Simon,
17-cv-04605 SRN-SER (D. Minn. 2017); Emrit v. Wyoming
Sec, of State, 2:17-cv-00174-SWS (D. Wyo. 2017);
Emrit v. Johnson, 2:17-cv-13337 GCS-RSW (E.D. Mich.
2017); and Emrit v. Lawson, 2017 WL 4699279 (S.D.
Ind. 2017). This Court should similarly dismisses plaintiffs
claims as patently frivolous.
Title VII claim, as alleged on page 22 of his complaint,
should be dismissed: plaintiff has not alleged discrimination
by an employer such as to satisfy the prima facie
requirements of such a claim. Title VII states that
"[i]t shall be an unlawful employment practice for an
employer.... to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
of employment, because of such individual's race, color,
'religion, sex, or national origin." 42 U.S.C.
§ 2OOOe-2(a)(1). Plaintiff does not even allege that he
is employed, let alone that he is employed by any entity in
claim for damages against the Secretary of State in his
official capacity should also be dismissed. Where a complaint
"does not specifically name the defendant in his
individual capacity, it is presumed he is sued only in his
official capacity." Baker v. Chisom, 501 F.3d
920, 923 (8th Cir. 2007). A claim brought against a state
official in his or her official capacity is treated as a suit
against the state or political subdivision it self
Kentucky v. Graham, 473 U.S. 159, 165 (1985). State
officials may only be sued in their official capacity for
injunctive relief, not for damages. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 69 n.24
(1997); and Will v. Michigan Dept. of State Police,
491-U.S. 58, 71 n.10 (1989). Damages against the South Dakota
Secretary of State are therefore unavailable pursuant to the
claims brought by plaintiff.
Dakota requires any candidate for nonjudicial public office
who is not nominated by a primary election to file a
certificate of nomination with the Secretary of State signed
by "not... less than one percent of the total combined
vote cast for Governor . . . ." SDCL 12-7-7. "Every
state has these types of ballot access laws." Emrit
v. Lawson, 2017 WL 4699279, *2 (S.D. Ind. 2017). Rather
than challenging the No. of signatures required for placement
on the primary or general presidential election ballots or
any other specific requirement, plaintiff appears to
challenge the requirement of having to submit any signatures
at all with his certificate of nomination. The Eighth Circuit
has specifically upheld South Dakota's signature
requirement against challenges based on equal protection
grounds. Walker v. Gant, 505 Fed.Appx. 856, 856 (8th
Cir. 2015). Indeed, states possess a broad regulatory
authority to prescribe the conduct of elections. Green
Party of Arkansas v. Martin, 649 F, 3d 675, 680 (8th
Cir. 2011). This includes the right to require candidates to
make a preliminary showing of substantial support in order to
be placed on a ballot. Anderson v, Celebrezze, 103 S.Ct.
1564, . 1569-70 (1983). A state is, moreover, not
"guilty of invidious discrimination" in providing
"different routes to the printed ballot" for
political parties with "historically established broad
support" in contrast to newcomers. Jenness v.
Fortson, 91 S.Ct. 1970, 1976 (1971).
due process claims similarly fail. Analysis of a claim for
either substantive or procedural due process "must begin
with an examination of the interest allegedly violated."
Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.
1999) (internal citations omitted). The possession "of a
protected life, liberty, or property interest" is a
"condition precedent" to any due process claim.
Id, (internal citations omitted). Where "no
such interest exists, there can be no due process
violation." Id, Plaintiff has alleged no
protected interest here. There is no fundamental right to
candidacy. Emrit v. Penney, 2018 WL 1865159, *4 (D.
Idaho 2018). Rather, "the existence of barriers to a
candidate's access to the ballot does not of itself
compel close scrutiny." Clements v. Fashing,
102 S.Ct. 2836, 2843 (1982).
plaintiff also fails to state a claim against the South
Dakota Democratic Party as he alleges no facts from which one
could reasonably conclude that the South Dakota Democratic
Party acted under color of state law. As noted by the
District of Maine in its decision adjudicating an analogous
suit by plaintiff filed there, "[p]olitical parties are
private parties, and "[p]rivate parties are largely
unrestrained by the constitution." Emrit v.
Dunlap, 2018 WL 1321567, *6 (D. Me. 2018) (internal
citations omitted). A private party may be held liable as a
state actor; however, such liability "require[s] joint
action or conspiracy with state authorities."
Carlson v. Roetzel & Andress,552 F.3d 648, 651
(8th Cir. 2008). Plaintiff has pled no facts to suggest that
the South Dakota Democratic Party engaged in any conduct as
it pertains to plaintiff, or that it ...