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James Mcmillan v. New York State Board of Elections

July 11, 2012

JAMES MCMILLAN, PLAINTIFF,
v.
NEW YORK STATE BOARD OF ELECTIONS, DEFENDANT.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

James ("Jimmy") McMillan, pro se, brings this action against the New York State Board of Elections (the "Board"), seeking an injunction requiring the Board to recount all ballots from the 2010 gubernatorial election in which McMillan, representing the "Rent Is 2 Damn High" party, was a candidate. The Board has moved to dismiss McMillan's complaint on the grounds that the Board is immune from suit and the complaint fails to state a claim upon which relief may be granted. For the reasons explained below, the motion is granted, and McMillan's complaint is hereby dismissed.

BACKGROUND

In 2010, McMillan ran for Governor of New York on behalf of the "Rent Is 2 Damn High" party. According to the Board, McMillan received 41,131 votes, out of a total of 4,763,688 votes cast in the election. On January 23, 2012, in an effort to reach the 50,000 vote threshold required under New York law to qualify as an official political Party,*fn1 McMillan filed this suit seeking an order compelling the Board to recount all ballots cast in the 2010 election. Compl., ECF No. 1. He has also suggested in his more recent submissions that he would like the court to "ORDER the Rent Is 2 Damn High Party on the Ballot for the next Four (4) years because of the New York State Board of Elections['s] reckless behavior,"*fn2 as well as to "ORDER [the Board] to be transparent on the total number of VOTES that were not counted due to OVERVOTE." 4/11/12 Letter from McMillan, ECF No. 18, at 1-2.

On March 16, 2012, I entered an order denying McMillan's application for a preliminary injunction mandating a recount of all ballots cast in the 2010 gubernatorial election. See McMillan v. N.Y. State Bd. of Elections, No. 12-CV-302 JG, 2012 WL 909934 (E.D.N.Y. Mar. 16, 2012). Although this order denied the primary relief that McMillan sought through this lawsuit, I did not dismiss the complaint at that time because of the preliminary nature of the injunctive request. The Board has since moved to dismiss the complaint for failure to state a claim. See Mo. To Dismiss, ECF No. 19. Oral argument was held on July 10, 2012.

DISCUSSION

A. Standard of Review

To survive a motion to dismiss, a complaint must allege sufficient facts to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bigio v. Coca-Cola Co., 675 F.3d 163, 173 (2d Cir. 2012). In making this determination, a court should assume all well-pleaded allegations in the complaint to be true "and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. Because McMillan is proceeding pro se, I am specially obligated to construe his complaint liberally and interpret it "to raise the strongest arguments that [it] suggest[s]." See Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks omitted).

B. Analysis

1. Sovereign Immunity

As I explained in a related dispute between the same parties in 2010, the Eleventh Amendment bars individuals from bringing suit for money damages or injunctive relief against a state or its agencies "unless either Congress has clearly abrogated the state's immunity or the state has unequivocally waived its immunity." McMillan v. N.Y. State Bd. of Elections, No. 10-CV-2502 (JG) (VVP), 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)), aff'd, 449 F. App'x 79 (2d Cir. 2011); see U.S. Const. amend. XI. The State Board of Elections is a state agency for the purposes of the Eleventh Amendment. See McMillan, 2010 WL 4065434, at *3. McMillan has not identified a particular legal basis for his claim, and the only federal basis of his claim I can discern is 42 U.S.C. § 1983. Section 1983 does not abrogate the sovereign immunity of the states. Quern v. Jordan, 440 U.S. 332, 342-43 (1979). Nor has the state waived its immunity in this case. Therefore, the Board is immune from suit and McMillan's claims must be dismissed.*fn3

2. Failure To State a Claim

As I explained in my order denying a preliminary injunction in this case, McMillan's complaint also fails to ...


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