United States District Court, S.D. New York
September 7, 2005.
LENORA B. FULANI, et al., Plaintiffs,
TERRY MaAULIFFE, DEMOCRATIC NATIONAL COMMITTEE, JOHN F. KERRY, JOHN EDWARDS, et al., Defendants.
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
OPINION AND ORDER
This is yet another in a long line of cases in which Plaintiff
Lenora Fulani has misused the courts in an attempt to pursue a
political agenda which she is not able to accomplish at the
ballot box. For the reasons set out below, this misguided effort
Plaintiffs Lenora Fulani, Cathy Stewart, Nancy Ross, David
Cherry, Jason Olson, Evelyn Dougherty, Jennifer Bullock, Linda Curtis, Mary Ann Bock, Murray Dabby and the Committee for a
Unified Independent Party (collectively, "Plaintiffs") allege
that Defendants Terry McAuliffe, the Democratic National
Committee ("DNC"), John F. Kerry, John Edwards, Michael Madigan,
Michael Clifford, Toby Moffet, Jeff Merrick, David Jones, and
Darrell McGraw, (collectively, "Defendants") in connection with
any number of unnamed parties, conspired to keep Ralph Nader
("Nader") and Peter Camejo ("Camejo") off of the ballot in states
across the country as independent candidates for the offices of
President and Vice President of the United States. Defendants
McAuliffe, DNC, Kerry, Edwards, Madigan, Clifford, Moffet,
Merrick and McGraw have all filed motions to dismiss. Because
Plaintiffs' Complaint fails to establish any deprivation of a
federal right, plead any conspiracy, or satisfy the specific
requirements of 42 U.S.C. §§ 1983 or 1985, Defendants' motions
The individual plaintiffs in this action are registered voters
in the states of New York, Illinois, California, Massachusetts,
Pennsylvania, Texas and Georgia. The Committee for a Unified
Independent Party ("CUIP") is a national not-for-profit
organization dedicated to the expansion of political
participation and the development of a third political party.
Plaintiffs all supported the candidacy of Nader and Camejo for President and Vice President of the United States, respectively,
("Nader-Camejo") in 2004.
Defendant DNC functions as the leadership and administrative
body of the Democratic Party. Defendant McAuliffe was the
Chairman of the DNC during the 2004 Presidential election.
Defendants Kerry and Edwards were the Democratic candidates for
the offices of President and Vice President of the United States,
respectively. Defendant Madigan is the Speaker of the Illinois
House of Representatives and the Chairperson of the Illinois
Democratic Party. Defendant Clifford is the Kanawha County
Prosecutor in the State of West Virginia, and Defendant McGraw is
the Attorney General of the State of West Virginia. Defendant
Moffet is a former Congressman from the State of Connecticut.
Defendant Merrick is the Chair of the Multnomah County Democratic
Party organization in Portland, Oregon. Defendant Jones is the
president of a website with the web address of
According to Plaintiffs, in early 2004, once Nader declared his
intention to run for President, Defendants began a concerted,
organized conspiracy to "prevent Nader from obtaining a line on
the ballot in as many states as possible, and, thereby, impede
the development" of a third national political party.*fn2
(Compl., ¶ 27.) Plaintiffs allege that: (1) Defendant McAuliffe issued
public statements "about the importance of eliminating Nader as a
factor" in the election; (2) Defendant Jones "orchestrated a paid
media and propaganda campaign" to combat Nader-Camejo's efforts
at ballot access; (3) Defendant Moffet coordinated a national
plan to "drain [Nader's] resources" and trained lawyers to help
in that effort; (4) Defendant Clifford announced that he was
commencing a criminal investigation of persons collecting
Nader-Camejo petition signatures in West Virginia; (5) Defendant
McGraw announced that he would file a lawsuit challenging the
Nader-Camejo petition in West Virginia; (6) Defendant Merrick caused the
Nader-Camejo nominating caucus in Portland to be crowded with
Democratic activists, thus preventing Nader-Camejo from reaching
the required 1000 supporter threshold; (7) Defendant Madigan
directed government workers to challenge the Nader-Camejo
petition in Illinois; (8) various defendants persuaded the
Michigan Secretary of State not to recognize Nader-Camejo as the
2004 Reform Party candidates; (9) various defendants caused an
organization called Citizens for Ethics and Responsibility in
Washington to file complaints with the Federal Election
Commission ("FEC") against Nader-Camejo; and (10) Democratic
Party lawyers and operatives generally reviewed Nader-Camejo
nominating petitions "with a fine tooth comb" and instituted
challenges against the petitions in Arizona, Colorado, Illinois,
Iowa, Maine, Michigan, Missouri, Nevada, New Jersey, New Mexico,
Oregon, Pennsylvania and Wisconsin. (Compl., ¶ 29.)
Based on these allegations, Plaintiffs claim that: (1) pursuant
to 42 U.S.C. § 1983, Defendants have engaged in a conspiracy to
deny Plaintiffs' right to vote and participate as independents in
the presidential election, thwarting Plaintiffs' constitutionally
protected goal of developing a third national political party;
and (2) pursuant to 42 U.S.C. § 1985, Defendants have engaged in
a conspiracy to deny Plaintiffs' right to vote and right to equal
protection under the laws. Collectively, Defendants' motions to dismiss argue that
Plaintiffs' Complaint is deficient in four ways: (1) it fails to
allege any actionable deprivation of a federal right; (2) it
fails to allege any underlying conspiracy; (3) it fails to
satisfy the state action requirement of § 1983; and (4) it fails
to satisfy the race- or class-based discrimination requirement of
§ 1985.*fn3 Because Defendants' arguments are, in fact,
correct on each of these grounds, their motions to dismiss are
II. Standard for a Motion to Dismiss
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
I must view the complaint in the light most favorable to the
plaintiff. Yoder v. Orthomolecular Nutrition Inst., Inc.,
751 F.2d 555, 562 (2d Cir. 1985) (citing Conley v. Gibson,
355 U.S. 41, 47-48 (1957)). I must accept as true the factual allegations
stated in the complaint, Zinermon v. Burch, 494 U.S. 113, 118
(1990), and draw all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hertz
Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir. 1993). A motion
to dismiss can be granted only if it appears beyond doubt that
the plaintiff can prove no set of facts in support of its claim which would entitle plaintiff to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
A. Failure to Establish Any Constitutional Violations
Sections 1983 and 1985 do not in themselves create any
substantive right but merely provide remedies for deprivations of
rights established elsewhere. See Albright v. Oliver,
510 U.S. 266, 271 (1994); United Bhd. of Carpenters and Joiners,
Local 610 v. Scott, 463 U.S. 825, 833 (1983). Both sections,
therefore, require a plaintiff to establish with specificity the
rights of which he has been deprived. See Albright,
510 U.S. at 271; Scott, 463 U.S. 833.
Plaintiffs maintain that they have been deprived of their
"right to vote and participate as independents in the election"
and "equal protection of the laws." (Compl., ¶¶ 36, 39.) However,
the facts as alleged do not constitute any such deprivations.
Initially, it is not an unconstitutional deprivation of the right
to vote for states to regulate their own elections by passing and
enforcing laws regarding ballot access. Further, the speech which
Plaintiffs complain of Defendants' public statements against
the Nader-Camejo campaign has been afforded the highest First
The rights of voters are among the most fundamental in our
constitutional structure. See Burdick v. Takushi,
504 U.S. 428, 433 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
However, candidacy is not a fundamental right in our political
system, Clements v. Fashing, 457 U.S. 957, 963 (1982), and "not
all restrictions imposed by the States on candidates' eligibility
for the ballot impose constitutionally suspect burdens on voters'
rights to associate or to choose among candidates." Id. "As a
practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes." Storer v. Brown, 415 U.S. 724, 730 (1974).
Plaintiffs do not label any particular eligibility requirement
unconstitutional but rather offer a general criticism of
eligibility requirements for candidates. (Compl., ¶¶ 29-40.)
However, "the State has the undoubted right to require candidates
to make a preliminary showing of substantial support in order to
qualify for a place on the ballot, because it is both wasteful
and confusing to encumber the ballot with the names of frivolous
candidates." See Anderson, 460 U.S. at 788; American Party
of Texas v. White, 415 U.S. 767 (1974); Jenness v. Fortson,
403 U.S. 431 (1971). Accordingly, "the mere fact that a State's
system creates barriers tending to limit the field of candidates
from which voters might choose does not of itself compel close
scrutiny." Burdick, 504 U.S. at 433; Bullock v. Carter,
405 U.S. 134.
Where a state election law provision imposes only reasonable, non-discriminatory restrictions upon the rights of
voters, the State's important regulatory interests are generally
sufficient to justify the restrictions. Burdick,
504 U.S. at 434 (internal quotations omitted). Here, Plaintiffs fail even to
identify any particular State regulation, much less detail how a
specific regulation curtails voters' rights to the point that a
court should override the enacting State's interest in regulating
elections and declare the regulation unconstitutional.
Consequently, to the extent that Plaintiffs accuse Defendants of
using State election law to impede the Nader/Camejo candidacy and
violate Plaintiffs' equal protection rights or right to vote
(Compl., ¶¶ 29-30), that claim fails as a matter of law.*fn4
Plaintiffs also allege that certain statements by Defendants,
specifically Defendant McAuliffe's public statements about the "importance of eliminating Nader as a factor in the
race" (Compl., ¶ 29a.), also violated Plaintiffs' voting and
equal protection rights. However, political speech is "at the
core of our electoral process and of the First Amendment
freedoms." Williams v. Rhodes, 393 U.S. 23, 32 (1968). "Debate
on the qualifications of candidates [is] integral to the
operation of the system of government established by our
Constitution." Buckley v. Valeo, 424 U.S. 1, 14 (1976). "[T]he
First Amendment `has its fullest and most urgent application' to
speech uttered during a campaign for political office." Eu v.
San Francisco County Democratic Central Committee, 489 U.S. 214,
223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265,
272 (1971)). A limit on speech of this nature could only survive
constitutional scrutiny if it served a compelling state interest.
Id. at 283. Plaintiffs have offered no coherent argument in
this regard, and, therefore, even accepting the allegations of
the Complaint as true, Defendants' public political statements
are not violative of Plaintiffs' rights in any way.
B. Failure to Establish a Conspiracy
The sum total of Plaintiffs' accusation that Defendants were
engaged in a nationwide conspiracy to keep Nader and Camejo out
of the 2004 general election is the following:
On information and belief, in or about March, 2004
defendants McAuliffe, DNC, Kerry and some or all of
John Does 1-10 agreed to devise and carry out the
conspiracy in order to prevent Ralph Nader from
obtaining a line on the ballot in as many states as possible and, thereby,
impede the development of the third party.
The other defendants joined the conspiracy at various
(Compl., ¶¶ 27-28.) This broad, conclusory statement regarding
the formation of and membership in the conspiracy is insufficient
to survive a motion to dismiss.*fn5
"[I]t is well established that in order to survive a motion to
dismiss, a § 1983 complaint must contain `more than naked[,]
improbable[,] unsubstantiated assertions without any specifics.'"
Pollack v. Nash, 58 F. Supp. 2d 294, 299 (S.D.N.Y. 1999)
(quoting Neustein v. Orbach, 732 F. Supp. 333, 346 (E.D.N.Y.
1990); see also Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir.
1988); Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir.
1987); Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977);
Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976). Here,
Plaintiffs claim to have identified a conspiracy among Defendants
generally, yet they fail to specify when the conspiracy was
formed, where the conspiracy was formed, or who participated in
In fact, Plaintiffs concede that they are "unable to specify
when, by what means, and where all of the communications and
meetings took place by which the conspiracy was formed and implemented." (Def's. Br. at 3.) The Court of Appeals has
consistently held that "a claim of conspiracy under § 1983 must
contain more than mere conclusory allegations." Dwares v. The
City of New York, 985 F.2d 94, 99 (2d Cir. 1993); see also
Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992);
Albany Welfare Rights Organization Day Care Center, Inc. v.
Schreck, 463 F.2d 620, 622-23 (2d Cir. 1972). The Court in
While a plaintiff should not plead mere evidence, he
should make an effort to provide some details of time
and place and the alleged effect of the conspiracy.
Thus, complaints containing only conclusory, vague,
or general allegations that the defendants have
engaged in a conspiracy to deprive the plaintiff of
his constitutional rights are properly dismissed;
diffuse and expansive allegations are insufficient,
unless amplified by specific instances of misconduct.
Dwares, 985 F.2d at 99-100 (internal citation and quotation
Plaintiffs counter that "conspiracies are by their very nature
secretive operations that can hardly ever be proved by direct
evidence," Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir.
1994). Of course, if potential secrecy was a valid defense of a
poorly pleaded conspiracy complaint, the most outlandish and
ludicrous conspiracy allegations would emerge from 12(b)(6)
motions unscathed. Plaintiffs' position would reduce the
conspiracy pleading standard to a mere formality.
Additionally, however, Plaintiffs' own Complaint belies the
notion that the alleged conspiracy was any sort of "secretive operation." Defendant McAuliffe is accused of issuing "public
statements" about the need to eliminate Nader as a factor in the
race. (Compl., 29a.) Defendant Jones orchestrated "paid media and
propaganda campaigns." (Compl., 29b.) Defendant Clifford
"publicly announced that he was commencing a criminal
investigation of persons collecting signatures for the
Nader-Camejo nominating petition." (Compl., 29g.) Defendant
McGraw "announced" a lawsuit to challenge a Nader-Camejo
petition. (Compl., 29h.) These are hardly the actions of a
covert, secretive operation. Rather, Defendants' actions were
conducted in full view of the public and by their very nature
defy characterization as secretive.*fn6 Accordingly, I find
the facts alleged insufficient to plead a conspiracy claim under
either § 1983 or § 1985.
C. Failure to Satisfy the § 1983 State Action Requirement
To state a claim under 42 U.S.C. § 1983, a plaintiff must not
only allege a deprivation of a federal right, privilege or
immunity, but must allege that the deprivation was attributable, at least in part, to a person acting under color of state law.
See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 835 (1982);
Parratt v. Taylor, 451 U.S. 527, 535 (1981); Gomez v. Toledo,
446 U.S. 635, 640 (1980); Adickes v. S.H. Kress & Co.,
398 U.S. 144, 150 (1970). A private actor may be subject to liability
under § 1983 if he or she willfully collaborated or conspired
with an official state actor in the deprivation of the federal
right. Dwares, 985 F.2d at 98.
Defendants here are predominantly non-state actors, private
individuals or organizations.*fn7 Plaintiffs' sole effort to
show that Defendants are acting "under color of state law"
appears to be an assertion that "public funds are being used in
furtherance of the conspiracy" i.e., that the "Democratic
Party convention and the Kerry-Edwards campaign are funded with
federal moneys through the Federal Election Commission." (Compl.,
¶¶ 30, 35.) However, the Supreme Court has held that mere receipt
of public funds is insufficient to transform private entities or
individuals into state actors. See, e.g., Rendell-Baker,
457 U.S. at 841; San Francisco Arts & Athletics, Inc. v. U.S.
Olympic Committee, 483 U.S. 522 (1987); Polk County v. Dodson,
454 U.S. 312 (1981). As the Complaint contains no other allegation by
which the private Defendants could be found to have acted under
color of state law, Plaintiffs have not satisfied § 1983's state
D. Failure to Satisfy the § 1985 Discrimination Requirement
To state a claim under 42 U.S.C. § 1985, a plaintiff must
demonstrate: (1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, a person or class of persons of
the equal protection of the laws, or of equal privileges and
immunities under the law; (3) an act in furtherance of the
conspiracy; (4) whereby a person is either injured in his person
or deprived of a constitutional right. Thomas v. Roach,
165 F.3d 137, 146 (2d Cir. 1999). Under § 1985, the conspiracy and
conspirators must be motivated by "some racial or perhaps
otherwise class-based, invidious discriminatory animus." Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d
Cir. 1993) (quoting Scott, 463 U.S. at 829).
Plaintiffs claim to have suffered invidious discriminatory
animus based on their status as a class of independent voters.
However, by their own admission, seven of the ten Plaintiffs are
"not enrolled in a political party." (Compl., ¶ 2.) Class-based
discrimination against these seven Plaintiffs would seem to be
made rather difficult, if not impossible, as these Plaintiffs
themselves refuse to be politically classified. See, e.g., Compl., Intro. ("The plaintiffs are individuals who, by dint of
their non-enrollment in a political party and/or their
orientation as political independents," sought the opportunity to
vote for Nader in the November 2004 general election. The CUIP is
"an organization that seeks to advance the cause of independent
politics in the national political arena and in particular to
further the development of the third party.").
More importantly, the Supreme Court and Court of Appeals have
rejected political affiliation as a grounds for class membership
under § 1985. Though the Court of Appeals in Keating v. Carey,
706 F.2d 377, 386-88 (2d Cir. 1983), originally found political
parties to be protected groups under § 1985, the Supreme Court in
Scott, 463 U.S. at 836-37, held that § 1985 might not extend to
discrimination against political groups except where that
discrimination was based on racial animus. After Scott, the
Fourth Circuit considered Keating and declined to follow it,
holding that "Republicans as a class are not protected by §
1985." Harrison v. KVAT Food Management, Inc., 766 F.2d 155,
161-162 (4th Cir. 1985).
The Court of Appeals and district courts in the Second Circuit
have since adopted the Scott/Harrison reasoning. See
Gleason v. McBride, 869 F.2d 688, 695 (2d Cir. 1989)
(acknowledging Scott and Harrison and expressing doubt that
political affiliation can form the basis of a § 1985 claim);
Juncewicz v. Patton, No. 01-CV-0519E, 2002 U.S. Dist. LEXIS 22651, at *12 (W.D.N.Y. Oct. 8, 2002); Adamczyk v. City of
Buffalo, No. 95-CV-1023E(H), 1998 U.S. Dist. LEXIS 2134, at *6
(W.D.N.Y. Feb. 23, 1998); Dwares v. The City of New York, 90
Civ. 4435, 1992 U.S. Dist. 1412, at *11 (S.D.N.Y. Feb. 10, 1992),
vacated on other grounds by Dwares, 985 F.2d 94, 99 (2d Cir.
1993).*fn8 As this Circuit does not recognize political
affiliations for purposes of class membership under § 1985, I
find that Plaintiffs have not alleged invidious discriminatory
animus and therefore do not have a cognizable § 1985 claim.
For the reasons set out above, Defendants' motions to dismiss
(Docket Nos. 5, 6, 7, 8, 9, 10, 14, 17, 23, 34 and 36) are
granted. The Clerk of the Court shall mark this action closed and
all pending motions denied as moot.
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