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Emrit v. Gale

United States District Court, D. Nebraska

January 29, 2018

JOHN A. GALE, Secretary of State of Nebraska; and DEMOCRATIC PARTY OF THE STATE OF NEBRASKA, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed his Complaint on October 10, 2017. (Filing No. 1.) He has been given leave to proceed in forma pauperis. (Filing No. 5.) The court now conducts an initial review of Plaintiff's Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2). As part of its initial review, the court will not consider Plaintiff's Amended Complaint (Filing No. 12) and Second Amended Complaint (Filing No. 13) which were filed without the court's permission on November 13, 2017, and December 11, 2017, respectively, but instead will order the pleadings stricken.[1] See Fed.R.Civ.P. 15(a); NECivR. 15.1.


         Plaintiff brings this action against John A. Gale, the Secretary of State of Nebraska, and the Democratic Party of the State of Nebraska. Plaintiff alleges he was denied his constitutional rights when Defendants refused to place him on the ballot for the primary and general presidential election in 2016. He alleges this claim is not moot because he has decided to run for President of the United States in 2020 as a Democratic candidate.

         Plaintiff alleges he is an indigent, disabled, and unemployed resident of the state of Nevada, though his current mailing address on file with the court is in Texas. Plaintiff states that he was a Democratic candidate for President of the United States in the 2016 general election, but he was only placed on an official ballot in Palm Beach County, Florida. He alleges that he “was told by several secretaries of state that in order to get placed on the ballot in the primary or general election, he would have had to get a minimum number of petitions signed from the constituents of each jurisdiction in which he wanted to run for president in the general election (as an independent candidate).” (Filing No. 1 at CM/ECF p.4, ¶18.) Plaintiff allegedly obtained a candidate ID number and registered with the Federal Election Commission. He was represented by a Political Action Committee but not by any “Super PAC, ” and he received no donations from any person or entity. (Id., ¶¶20-21.)

         Plaintiff brings this action under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Americans with Disabilities Act (“ADA”). He alleges Defendants violated his equal protection and substantive and procedural due process rights under the Fifth and Fourteenth Amendments, as well as the Privileges and Immunities Clause in Article IV, Section 2, Clause I, of the United States Constitution (Comity Clause). Plaintiff also alleges state law claims of negligence and breach of contract. For relief, he seeks 45 million dollars in compensatory and punitive damages and injunctive relief in the form of ordering Defendants to place him on the ballot for the primary and general election in Nebraska in 2020.


         The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e). The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         Pro se plaintiffs must set forth enough factual allegations to “nudge[] their claims across the line from conceivable to plausible, ” or “their complaint must be dismissed.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“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.”).

         “The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party ‘fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, “[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties.” Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

         Liberally construed, Plaintiff here alleges federal constitutional claims. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights protected by the United States Constitution or created by federal statute and also must show that the alleged deprivation was caused by conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).


         A. Sovereign Immunity

         Plaintiff did not specify the capacity in which Secretary of State Gale is sued. Where a plaintiff fails to “expressly and unambiguously” state that a public official is sued in his individual capacity, the court “assume[s] that the defendant is sued only in his or her official capacity.” Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). The Eleventh Amendment bars claims for damages by private parties against a state, state instrumentalities, and an employee of a state sued in the employee's official capacity. See, e.g., Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 619 (8th Cir. 1995); Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir. 1995). Any award of retroactive monetary relief payable by the state, including for back pay or damages, is proscribed by the Eleventh Amendment absent a waiver of immunity by the state or an override of immunity by Congress. See, e.g., id.; Nevels v. Hanlon, 656 F.2d 372, 377-78 (8th Cir. 1981). Thus, the Eleventh Amendment bars Plaintiff's claim for damages against Gale in his official capacity.

         Sovereign immunity does not bar damages claims against state officials acting in their personal capacities, nor does it bar claims brought pursuant to 42 U.S.C. §1983 that seek equitable relief from state employee defendants acting in their official capacity. Plaintiff seeks equitable relief in the present case in the form of an injunction requiring Defendants to place him on the 2020 primary and general election ballots, in addition to damages from the Nebraska Democratic Party. The court will therefore review the Complaint to determine if Plaintiff has set forth sufficient allegations to proceed on any of his claims.

         B. ...

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