MEMORANDUM AND ORDER
On Mаy 8, 2012, plaintiff Joseph E. Tiraco (“Plaintiff’), proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief against the New York State Board of Elections (the “State Board”) for alleged violations of his constitutional rights under the United States Constitution. (See ECF No. 1, Complaint dated 5/8/12.) On June 20, 2012, Plaintiff filed an Amended Complaint, adding the Board of Elections in the City of New York (the “City Board”) as a defendant and alleging a new claim for punitive damages against the State Board and the City Board (collectively, the “Boards”). (ECF No. 9, First Amended Complaint dated 6/20/12.) On August 28, 2012, after retaining counsel, Plaintiff filed a Second Amended Complaint, adding Frank MacKay (“MacKay”) as a defendant, omitting his claim for punitive damages, and including additional factual allegations in support of his § 1983 claims. (See generally ECF No. 23, Second Amended Complaint dated 8/28/12 (“SAC”).)
Presently before the court are the Stаte Board’s motions to dismiss Plaintiffs Second Amended Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”) and for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) and the City Board’s motion to dismiss pursuant to Rule 12(b)(6). (ECF No. 36, State Board’s Rule 12(b)(1) and 12(b)(6) Motions to Dismiss (“State Mot.”); ECF No. 37, State Board’s Memorandum of Law in Support (“State Mem.”); ECF No. 38; State Board’s Reply (“State Reply”); ECF No. 39, City Board’s Rule 12(b)(6) Motion to Dismiss (“City Mot.”); ECF No. 40, City Board’s Memorandum of Law in Support (“City Mem.”); ECF No. 41, City Board’s Reply (“City Reply”); ECF No. 33, Plaintiffs Opposition to Motions to Dismiss (“PI. Opp.”).) The State and City Boards’ motions to dismiss are granted as set forth below, and Plaintiffs claims against the Boards are therefore dismissed with prejudice.
BACKGROUND
I. New York Election Law
Subject to limited exceptions not applicable here, an individual seeking to run in a primary election must bе designated as a candidate for party nomination “by designating petition.” N.Y. Elec. Law § 6-118. A designating petition must contain a certain number of signatures from enrolled party members. See N.Y. Elec. Law § 6-136. The number of required signatures varies depending on the public office to be filled. See id. As is relevant in this case, designating petitions for potential party candidates for the United States House of Representatives must be signed by the
On February 9, 2012, Chief Judge Gary L. Sharpe of the Northern District of New York reduced the number of statutorily required signatures for designating petitions for the 2012 federal primary election and also adopted an election schedule setting forth dates for the signature-gathering period for designating petitions. See Memorandum and Order at 6, United States v. New York, No. 10-CV-1214 (N.D.N.Y. Feb. 9, 2012), ECF No. 64 (adopting New York State Board of Elections’ Proposed Calendar at 10-16, United States v. New York, No. 10-CV-1214 (N.D.N.Y. Feb. 1, 2012), ECF No. 61). Specifically, Chief Judge Sharpe reduced the number of required signatures from 5% to 3.75% of the enrolled voters of the political party residing in the congressional district. Id. Chief Judge Sharpe further ordered that the signature-gathering period for designating petitions would begin on March 20, 2012 and end on April 16, 2012. Id. On March 19, 2012, on the eve of the commencеment of the signature-gathering period, a three-judge panel of the Eastern District of New York issued an order demarcating the revised congressional district lines within New York and appended to that order maps reflecting the revised congressional district lines. Favors v. Cuomo, No. 11-CV-5632,
II. Plaintiff’s Attempt to Secure Ballot Access in March 2012
During the signature-gathering period for the 2012 federal primary election, Plaintiff, a registered and longstanding member of the Independence Party of the State of New York (the “Independence Party”), attempted to secure ballot access to run for congressional office as the Independence Party candidate for the 6th Congressional District in Queens, New York. (See SAC ¶¶ 10-11, 40, 44.) In or around March 2012, Plaintiff circulated petitions to obtain signatures of enrolled Independеnce Party members, as required by New York Election Law. (See id. ¶ 40.) To facilitate his signature-gathering efforts, Plaintiff requested the Boards to provide him with: (a) a map of the 6th Congressional District setting forth the Election Districts and Assembly Districts; (b) the Independence Party enrollment book for the 6th Congressional District; (c) the number of enrolled Independence Party voters in the Congressional District; and (d) the number of signatures needed to qualify for ballot access as a candidate for Congress. (See id. ¶¶ 44-45.)
The Boards did not provide Plaintiff with the requested items and instead advised Plaintiff that the requested items “were not expected before Mid-May.” (Id. ¶ 45(d).) The Boards also informed
By the end of the signature-gathering period, Plaintiff obtained 532 signatures, even without the items requested from the Boards. (See id. ¶ 55.) Nevertheless, the City Board removed Plaintiff from the federal primary ballot after a hearing because it determined that only 277 of the collected signatures were valid, falling short of the 314-signature requirement. (See ECF No. 33, Exh. A, Transcript of Special Proceeding in Tiraco v. Wang, No. 12-CV-8953 (N.Y.Sup.Ct. May 7, 2012) (“State Court Tr.”), at 34, 38-39)
On May 7, 2012, after his removal from the federal primary ballot, Plaintiff commenced a special expedited proceeding in New York Supreme Court pursuant to N.Y. Elec. Law § 16-102 in an effort to validate his designating petition and to reinstate his name on the ballot. (See generally State Court Tr.) During that special proceeding, Plaintiff argued that the City Board failed to provide the minimum number of required signatures to obtain ballot access, failed to distribute electoral district maps, and failed to maintain personal voter registration records. (State Court Tr. 2-5.) The state court, however, declined to consider these arguments because Plaintiff did not properly raise such arguments in his pleadings and failed to name the State of New York as a party in the state court proceeding thus depriving the court of jurisdiction over Plaintiff’s constitutional claims. (See id. at 7, 34, 37-38.) Accordingly, the state court dismissed Plaintiff’s petition to validate and denied his request for reinstatement to the primary ballot in light of his failure
III. Plaintiffs Claims
Based on the foregoing factual allegations, Plaintiff asserts that the Boards discriminatorily administered New York State Election Law and thereby violated his constitutional rights under the First and Fourteenth Amendments. (Id. ¶¶ 1, 59-64.) Specifically, Plaintiff maintains that the Boards “intentionally withheld, failed to disclose and/or negligently withheld relevant and material information necessary for Plaintiff ... to achieve ballot access.” (SAC ¶ 48.) Plaintiff further asserts that the Boards burdened his associational rights by discriminatorily providing the requested information to candidates favored by the Boards and Independence Party leaders. (Id. ¶¶ 50-51, 55-56.) Moreover, Plaintiff alleges that the Boards provided him with out-of-date and inaccurate information regarding the addresses of enrolled Independence Party voters. (See id. ¶ 55.)
Plaintiff thereforе requests the court “[t]o enter judgment declaring and determining that actions of [the Boards] violate[] the First and Fourteenth Amendments as applied to Plaintiff.” (SAC, Prayer for Relief ¶ 1.) Additionally, Plaintiff requests “equitable relief, including an injunction restoring Plaintiff, Tiraco to the congressional ballot.”
DISCUSSION
I. Standard of Review
A. Rule 12(b)(1)
“ A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.’ ” Roman v. C.I.A., No. 11-CV-5944,
B. Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, “ ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Absolute Activist Value Master Fund Ltd. v. Ficeto,
II. Sovereign Immunity
As a threshold matter, the State Board argues that Plaintiffs claims against the State Board are barred by the Eleventh Amendment.
The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Supreme Court has long held that the Eleventh Amendment bars suits against a state by one of its own citizens. See Hans v. Louisiana,
There are three limited exceptions to state sovereign immunity. First, a
None of these exceptions apply in the instant case. New York has not expressly waived its sovereign immunity with respect to the claims asserted in Plaintiffs Second Amended Complaint. See Edelman v. Jordan,
Nor has Congress abrogated New York’s sovereign immunity from suit by acting pursuant to a grant of constitutional authority. Indeed, none of the federal statutes invoked by Plaintiff — namely, 42 U.S.C. § 1983, 28 U.S.C. § 1343, and 28 U.S.C. § 1331 — override New Yоrk’s sovereign immunity. Sierotowicz v. N.Y. Div. of Hous. & Cmty. Renewal, No. 04-CV-3886,
Finally, the Ex parte Young doctrine does not salvage Plaintiffs claims for injunctive and declaratory relief against the State Board, notwithstanding Plaintiffs misguided assertions to the contrary. Although Plaintiff purports to seek prospective injunctive and declaratory relief, (Pl. Opp. at 9-11), he “does not follow the requirement, established in Ex Parte Young, that a plaintiff seeking prospective relief from the state must name as defen
Because none of the exceptions to the State Board’s sovereign immunity apply, Plaintiffs claims against the State Board are barred by the Eleventh Amendment and must be dismissed.
III. Failure To State a Claim
Pursuant to Rule 12(b)(6), the City Board moves to dismiss Plaintiffs § 1983 claims for failure to state a claim upon which relief can be granted. (City Mot.; City Mem. at 8-11.) Although Plaintiffs Second Amended Complaint formally alleges only an associational rights claim under the First Amendment against the City Board, (see SAC ¶¶ 59-64), Plaintiffs allegations can alternatively be construed to raise either a due process claim or an
A. Fourteenth Amendment Due Process Claim
First, Plaintiffs Second Amended Complaint fails to state a Fourteenth Amendment due process claim. The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV. “[T]he threshold question in adjudicating [a] due process claim is whether [Plaintiff] possessed a liberty or property interest.” Leroy v. N.Y. City Bd. of Elections,
But, even assuming arguendo that Plaintiff was deprived of some constitutionally protected property or liberty interest, the City Board’s alleged actions here did not violate fundamental due process principles because Plaintiff was provided adequate process. “The Due Process Clause does not protect against all deprivations of constitutionally protected interests in life, liberty, or property, ‘only against deprivations without due process of law.’ ” Rivera-Powell v. N.Y. City Bd. of Elections,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and' finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge,
Notably, in Rivera-Powell, the Second Circuit applied the Mathews three-part balancing test and held that the procedures established by New York Election Law afford potential political candidates adequate due process. See
In rejecting the plaintiffs Fourteenth Amendment due process claims, the Second Circuit reasoned that “the process provided to [the plaintiff] was adequate” because the City Board held a hearing prior to removing the plaintiff from the ballot and because the plaintiff “had the opportunity to obtain full judicial review by way of a special proceeding under New York Election Law section 16-102.” Id. at 466-67. According to the Second Circuit, “[t]he combination of these two procedures satisfie[d] due process,” id. at 467, by providing the plaintiff with “a pre-deprivation hearing and an adequate judicial procedure by which to challenge any alleged illegalities in the Board’s action,” id. at 464.
Guided by the principles set forth in Rivera-Powell, the court finds that Plaintiff was afforded sufficient process through which to challenge his removal from the congressional ballot by the City Board. Like the plaintiff in Rivera-Powell, Plaintiff here received a pre-deprivation hearing before the City Board on May 1, 2012, (see State Court Tr. at 34),
That the New York Supreme Court ultimately refused to consider Plaintiffs allegations regarding the City Board’s alleged misconduct does not alter the fact that Plaintiff received adequate process. Indeed, the state court declined to consider Plaintiffs claims against the City Board because he failed to properly include such claims in his petition to validate as required by New York law. (State Court Tr. at 37-38.) Like in Rivera-Powell, where the plaintiffs § 16-102 proceeding was dismissed due to her failure to comply with statutory pleading requirements,
Notably, even if the New York Supreme Court had considered Plaintiffs claims against the City Board, that court would likely have rejected Plaintiffs claims on the merits. Indeed, as the City Board accurately notes, and as Plaintiff does not dispute in his Opposition, the City Board had no obligation under New York law to provide Plaintiff with the requested congressional district map or voter registration records. (See City Mem. at 9 n. 5.; PI. Opp.) First, with respect to the 6th Congressional District map, New York Election Law does not require the City Board to publish maps of congressional districts or to provide such maps to potential candidates, and Plaintiff cites no statutory prоvision to the contrary in his Opposition. Cf. N.Y. Elec. Law § 4-102(1) (“The state board of elections, at the expense of the state, shall publish maps showing the county or counties contained in each of the congressional districts, senatorial districts and assembly districts of the state.” (emphasis added)). In any event, even if New York Election Law imposed such a requirement on the City Board, the map for the 6th Congressional District was appended to the Eastern District of New York’s March 19, 2012 order and was therefore readily available to Plaintiff via PACER before the signature-gathering period began on March 20, 2012. Favors,
As to the Independent Party enrollment information requested by Plaintiff,
As such, far from violating Plaintiffs constitutional due process rights, the City Board fulfilled its obligations under New York Election Law and afforded Plaintiff adequate due process before removing him from the federal primary ballot. Plaintiffs Second Amended Complaint therefore fails to state a plausible claim for relief under the Due Process Clause.
B. First Amendment Associational Rights Claim
Plaintiff also fails to adequately plead a violation of his First Amendment associational rights. It is well settled that the First Amendment protects “the rights of candidates and their supporters ‘to organize, access the ballot, and vote for the candidate of their choice.’ ” McMillan,
[w]hen, as here, a plaintiff challenges a Board of Election decision not as stemming from a constitutionally or statutorily invalid law or regulation, but rather as contravening a law or regulation whose validity the plaintiff does not contest, there is no independent burden on First Amendment rights when the state provides adequate procedures by which to remedy the alleged illegality.
In the instant case, Plaintiff does not dispute the facial validity of any state law or regulation but rather “challenges the manner in which the ... City Board ... administer^] the New York State Election law to favor incumbent candidates supported by the leadership of the Independence, Democratic and Republican Parties.” (SAC ¶ 1; see also SAC, Prayer for Relief ¶ 1.) Specifically, Plaintiff argues that the City Board’s failure to provide him with the 6th Congressional District map and Independence Party voter information and the City Board’s subsequent removal of his name from the federal primary ballot violated his associational rights. (SAC ¶¶ 59-64.) Like the plaintiff in Rivera-Powell, Plaintiff “alleges no additional deprivation of [his] First Amendment interests independent from the [alleged] deprivation that forms the basis of [his] due process claim.”
Furthermore, even assuming that Plaintiffs due process and associational rights claims were not “inextricably intertwined” and that Rivera-Powell were therefore not fatal to Plaintiffs First Amendment claim, Plaintiff’s associational rights claim fails for other reasons. At its core, Plaintiff’s First Amendment claim is premised on the misguided and unsubstantiated notion that he did not receive a fair opportunity to run in the federal primary election as the Independence Party candidate because of the City Board’s alleged misconduct. But the Supreme Court has plainly held the First Amendment does not enshrine “a ‘fair shot’ at winning the party’s nomination.” N.Y. State Bd. of Elec. v. Lopez Torres,
C. Fourteenth Amendment Equal Protection Claim
Finally, Plaintiffs conclusory allegations likewise fail to state a viable Fourteenth Amendment equal protection claim. The Equal Protection Clause prohibits the government from denying “ ‘any person within its jurisdiction the equal protection of the laws/ which is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Ctr.,
In his Second Amended Complaint, Plaintiff alleges that the City Board discriminatorily administered the New York Elеction Law “to favor incumbent candidates supported by the leadership of the Independence, Democratic and Republican Parties,” (SAC ¶ 1; see also id. ¶¶ 55-56), and that the City Board “singled out Plaintiff ... and other insurgent candidates for special treatment by denying Plaintiff ... access to information and documents that were provided to candidates favored by party leaders,” (id,. ¶ 63; see also id. ¶ 51). Plaintiffs allegations, however, amount to nothing more than conclusory assertions devoid of adequate factual enhancement that would render plausible his equal protection claim. Rather than setting forth “allegations of particularized incidents” of discrimination, Plaintiffs Second Amended Complaint instead proffers only vague and conclusory references to unidentified “candidates favored by party leaders,” who, on unspecified dates, received the map аnd voter information that Plaintiff requested, but allegedly did not
Although not raised by the parties, the court finds that Plaintiff also fails to state an equal protection claim under a “class of one” theory. The Second Circuit has recognized that, “[w]hile [the Equal Protection Clause] ‘is most commonly used to bring claims alleging discrimination based on membership in a protected class,’ it may also be used to bring a ‘class of one’ equal protection claim.” Prestopnik v. Whelan,
Having alleged only naked assertions devoid of further factual enhancement, Iqbal,
Because Plaintiffs § 1983 claim fails as a due process claim, an associational rights claim, and an equal protection claim, the City Board’s Rule 12(b)(6) motion is granted, and Plaintiffs claims against the City Board are dismissed in their entirety.
IV. Leave to Replead
Pursuant to Federal Rule of Civil Procedure 15(a)(2), “the court should freely give leave [to amend a pleading] when justice so requires.” In re Advanced Battery Techs., Inc. Sec. Litig., No. 11-CV-2279,
In this case, the court finds that Plaintiff has repeatedly failed to cure the deficiencies in his complaint and that further amendment would be futile. After amending his complaint twice, Plaintiff, now represented by counsel, has yet again crafted a deficient pleading, replete with conclusory allegations and meritless claims, some of which are barred by sovereign immunity. Moreover, to the extent that Plaintiff could have named appropriate State officials as defendants to invoke the Ex parte Young doctrine or could have alleged facts sufficient to surmount a motion to dismiss, he could have and should have done so in his Second Amended Complaint with the aid of counsel. Having failed to do so, Plaintiff does not deserve, nor does he request, a fourth opportunity to assert his baseless claims against the Boards, and leave to replead is therefore denied.
CONCLUSION
For the reasons set forth above, the State Board’s motion to dismiss on sovereign immunity grounds and the City Board’s motion to dismiss for failure to stаte a claim are granted, and Plaintiffs claims against the Boards are dismissed with prejudice. Plaintiff and remaining defendant Frank MacKay shall file a joint status letter via ECF on or before August 14, 2013, informing the court as to how the parties wish to proceed with respect to the remaining claims in the Second Amended Complaint.
SO ORDERED.
Notes
. The following facts are drawn from Plaintiff’s Second Amended Complaint, the allegations of which are assumed to be true for purposes of the motions to dismiss, and from documents within the purview of judicial notice. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir.2010); Buch v. Farmingdale State Coll., No. 12-CV-1762,
. As set forth herein, however, the number of required signatures was reduced in February 2012.
. Plaintiff acknowledges that the City Board ultimately disclosed the requested information but asserts that the City Board did so only after Plaintiff had already filed his designating petition. (See SAC ¶¶ 46, 58.)
. In his Opposition to the Boards’ motions to dismiss, Plaintiff annexes the transcript of his May 2012 state court proceeding. In ruling on the Boards' motions to dismiss, this court may properly consider the transcript of Plaintiff's state court proceeding. It is well-settled that a "court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Global Network Comm’cns, Inc. v. City of New York,
. Despite the time-sensitive nature of his request for injunctive relief, Plaintiff did not proceed by Order to Show Cause or request expedited consideration of his action, even after retaining counsel.
. The State Board raises its sovereign immunity defense in a motion to dismiss under Rule 12(b)(1), rather than Rule 12(b)(6). (State Mem. at 3; State Reply at 1-2.) Notably, there remains some uncertainty in the Second Circuit regarding the appropriate vehicle for a sovereign immunity defense. See, e.g., Iwachiw v. N.Y. City Bd. of Elections, No. 12-CV-3520,
. It is undisputed that the State Board, a New York state executive agency, is an "arm of the state” entitled to sovereign immunity. E.g., McMillan,
. Furthermore, as explained in further detail below, Plaintiff fails to adequately plead any violation of federal law, much less an ongoing violation of federal law as required by the Ex parte Young doctrine. See Green v. Mansour,
. Having dismissed Plaintiff’s claims against the State Board as barred by the Eleventh Amendment, the court need not reach the State Board’s alternative argument that Plaintiff’s § 1983 claims fail on their merits. In any event, the court's reasons for dismissing Plaintiff's § 1983 claims against the City Board for failure to state a claim apply with equal force to Plaintiff's claims against the State Board. Moreover, Plaintiff’s § 1983 claims against the State Board also fail on the merits because state agencies are not "persons” subject to suit under § 1983. E.g., Will v. Michigan Dep’t of State Police,
. Significantly, at least one district court in this Circuit has held that even if the City Board did not hold a hearing before removing a candidate from the ballot, the availability of a special proceeding under N.Y. Elec. Law § 16-102 satisfies due process. Murawski v. Pataki,
. Plaintiff specifically requested (1) the Independence Party enrollment book, (2) the number of enrolled Independence Party voters in the 6th Congressional District, and (3) the number of signatures needed to qualify for ballot access. (SAC ¶¶ 44-45.) As the City Board notes, these three sets of items are arguably "redundant” because the number of enrolled Independence Party voters can be determined by reviewing the enrollment book and the number of required signatures for ballot access is 3.75% of the total number of enrolled Independence Party voters. (See City Reply at 2.)
. In any event, as discussed above, the map and information requested by Plaintiff were available to him, and to all potential congressional candidates, before the end of the signature-gathering period.