Thistle v. The State of New Hampshire

1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

8 SOUTHERN DISTRICT OF CALIFORNIA

9

10 DAVID JOHN THISTLE, Case No.: 21cv02072-LL-BGS

Plaintiff,

11 ORDER:

12 v. (1) DENYING MOTION TO

PROCEED IN FORMA

13 THE STATE OF NEW HAMPSHIRE, PAUPERIS

14 Defendant. (2) DISMISSING COMPLAINT

[ECF No. 2]

15

16 I. INTRODUCTION

17 Presently before the Court is the Motion to Proceed In Forma Pauperis (“IFP”) of

18 Plaintiff David John Thistle (“Plaintiff”). ECF No. 2 (“Mot.”). Plaintiff, proceeding pro

19 se,1 alleges that the New Hampshire Secretary of State’s website contains unconstitutional

20 limitations on candidate eligibility to run for the United States House of Representatives.

21 See generally ECF No. 1 (“Compl.”). Having considered carefully Plaintiff’s Complaint,

22 IFP Motion, and the applicable law, the Court (1) DENIES Plaintiff’s Motion to Proceed

23 IFP and (2) DISMISSES the Complaint without prejudice.

24 II. BACKGROUND

25 Plaintiff alleges that “while researching The New Hampshire Secretary of State’s

26

1 In reviewing the instant motion, the Court is mindful that “[a] document filed pro se is to

27 be liberally construed … and a pro se [pleading], however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,

28

1 Official Website to become an ‘Official Ballot Candidate for the Office of U.S.

2 Representative,’” he discovered that the website unconstitutionally sought to “limit and

3 prevent otherwise fully qualified Ballot Candidates” from running for office. Compl. at 2-

4 3.2 Plaintiff appears to contend that the website’s statement that a candidate “[m]ust be

5 domiciled and a registered voter in New Hampshire,” id. at 5, violates Article 1 of the U.S.

6 Constitution, which only requires that a Representative “when elected, be an Inhabitant of

7 that State in which he shall be chosen,” U.S. Const. art. I, § 2.

8 III. LEGAL STANDARD

9 A. In Forma Pauperis Motion

10 Under 28 U.S.C. § 1915(a), the Court may authorize a plaintiff to pursue a case

11 without payment of the filing fee. Whether an affiant has satisfied § 1915(a) falls within

12 “the reviewing court[’s] . . . sound discretion.” California Men’s Colony v. Rowland, 939

13 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds, 506 U.S. 194 (1993). A party need

14 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co.,

15 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty

16 ‘with some particularity, definiteness, and certainty.’” Escobedo v. Applebees, 787 F.3d

17 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 F.3d 938, 940 (9th Cir.

18 1981)). “An affidavit in support of an IFP application is sufficient where it alleges that the

19 affiant cannot pay the court costs and still afford the necessities of life.” Id. However, “the

20 same even-handed care must be employed to assure that federal funds are not squandered

21 to underwrite, at public expense, either frivolous claims or the remonstrances of a suitor

22 who is financially able, in whole or in part, to pull his own oar.” Temple v. Ellerthorp, 586

23 F. Supp. 848, 850 (D. R.I. 1984).

24 B. Screening

25 The Court is obligated to screen all cases filed IFP pursuant to 28 U.S.C.

26 § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2002) (per curiam)

27

2 Unless otherwise indicated, all page number references are to the ECF generated page

28

1 (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners proceeding IFP); see

2 also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing 28

3 U.S.C. § 1915(e)(2)). Under this statute, the Court must sua sponte dismiss a complaint,

4 or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages

5 from defendants who are immune. See Lopez, 203 F.3d at 1126–27. Courts “may consider

6 facts contained in documents attached to the complaint” to determine whether the

7 complaint states a claim for relief. Nat’l Assoc. for the Advancement of Psychoanalysis v.

8 Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000). “The purpose of [screening]

9 is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of

10 responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citations

11 omitted).

12 IV. DISCUSSION

13 A. In Forma Pauperis Motion

14 The Court finds that Plaintiff has not met his burden of demonstrating his indigence

15 with particularity, definiteness, or certainty. In Escobedo, for example, the filing fees

16 constituted 40% of the plaintiff’s monthly income before factoring in her expenses.

17 Escobedo, 787 F.3d at 1235. Taking into account the plaintiff’s rent and debt payments,

18 the filing fee would have required the entirety of two months’ worth of her remaining funds,

19 meaning that the plaintiff “would have to forgo eating during those sixty days, to save up

20 to pay the filing fee.” Id. Under those circumstances, the Ninth Circuit determined that

21 paying the filing fee would constitute a significant financial hardship to the plaintiff. Id.

22 Accordingly, the court reversed the magistrate judge’s ruling denying the plaintiff IFP

23 status. Id. at 1236.

24 Here, Plaintiff’s IFP motion indicates that his monthly income is $4,620.00. Mot.

25 at 2. Plaintiff indicates that his only asset is a 2016 Kia Soul, and he has $5.23 in a checking

26 account and $20.00 in a savings account. Id. at 3. His monthly expenses average $4,850.00

27 and consist of the following: mortgage ($2,980.00), utilities ($1,000.00), laundry and dry

28 cleaning ($100.00), home insurance ($200.00), car payment ($500.00), and credit card

1 payment ($70.00). Id. at 4. Plaintiff claims that “my retirement pay is not enough to live

2 on in C[alifornia].” Id. at 5. Before factoring in expenses, the $402.00 filing fee3

3 constitutes less than 10% of Plaintiff’s monthly income.

4 There are inconsistencies in Plaintiff’s IFP application. For example, Plaintiff avers

5 his average monthly expenses exceed his monthly income by $230.00; however, Plaintiff

6 does not explain how he pays the difference every month when he only has $25.00 in his

7 bank accounts and no listed assets other than his vehicle. Section 1915(a)(1) requires that

8 Plaintiff attest to “all assets [he] possesses.” 28 U.S.C. § 1915(a)(1) (emphasis added).

9 The Court costs are not a significant portion of Plaintiff’s monthly income. Although

10 Plaintiff has elected to pay a substantial portion of his income toward a monthly mortgage

11 payment, given Plaintiff’s level of income, it appears he is financially able to pay the Court

12 costs.

13 Given these facts, the Court concludes that Plaintiff is able to pay the requisite fees

14 and costs and “still afford the necessities of life.” Escobedo, 787 F.3d at 1234.

15 Accordingly, the Court DENIES Plaintiff’s Motion to Proceed IFP.

16 B. Screening Pursuant to 28 U.S.C. § 1915(e)(2)

17 Even if Plaintiff paid the filing fee or had sufficiently demonstrated his indigence,

18 his Complaint would still be dismissed.

19 Plaintiff seeks to bring his claim pursuant to 18 U.S.C. § 242. Compl. at 4. He

20 requests the Court “immediate[ly] assign[ ] a Federal Prosecuting Attorney from the Office

21 of the U.S. Attorney to thoroughly examine the State of New Hampshire’s Official Election

22 Division and Website for any possible violations of altering of the Constitution of these

23 United States”; “order the Elected and Appointed Officers of the State of New Hampshire

24 to immediately and without haste restore the Law of Article 1 Section 2 Paragraph 2 of the

25

3 In addition to the $350.00 statutory fee, civil litigants must pay an additional

26

administrative fee of $52.00. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of

27 Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2020)). The additional $52.00

administrative fee does not apply to persons granted leave to proceed in forma pauperis.

28

1 Constitution of the United States”; and “extend Witness Protection to the Plaintiff and his

2 family due to the nature of the High Political and State Offices held by the Defendants.”

3 Id. at 3–4.

4 As an initial matter, Plaintiff seeks to assert his claim pursuant to a statute in the

5 United States Criminal Code, 18 U.S.C. § 242. However, this statute does not provide a

6 private cause of action. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

7 Therefore, Plaintiff cannot bring a civil suit on the basis of this statute, and he fails to state

8 a claim upon which relief can be granted under this statute.4

9 Additionally, the Court finds that Plaintiff lacks standing to bring the asserted claim

10 because he has not alleged an injury in fact. In order to bring a case in federal court, a

11 plaintiff must demonstrate he or she has “standing.” U.S. Const., Art. III; Clapper v.

12 Amnesty Intern. U.S.A., 568 U.S. 398, 408 (2013). “The plaintiff must have (1) suffered

13 an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

14 (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins,

15 578 U.S. 330, 338 (2016), as revised (May 24, 2016) (citing Lujan v. Defenders of Wildlife,

16 504 U.S. 555, 560-61 (1992)). “Standing focuses on whether a plaintiff has a ‘personal

17 stake’ in the action such that she will be an effective litigant to assert the legal challenge at

18 issue.” Townley v. Miller, 722 F.3d 1128, 1135 (9th Cir. 2013). The United States

19 Supreme Court has explained the concept of standing as follows:

To establish Article III standing, an injury must be concrete,

20

particularized, and actual or imminent; fairly traceable to the

21 challenged action; and redressable by a favorable ruling.

Although imminence is concededly a somewhat elastic concept,

22

it cannot be stretched beyond its purpose, which is to ensure that

23 the alleged injury is not too speculative for Article III purposes—

that the injury is certainly impending. Thus, we have repeatedly

24

25

4 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must be

26

dismissed when a plaintiff’s allegations fail to set forth a set of facts which, if true, would

27 entitle the complainant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible

28

1 rceointesrtaittuetde tihnajut r“yth irne afatecnt,e dan idn jtuhrayt m[au]lslte bgea tcioenrtsa ionfl yp oimsspibelned fiuntgu rtoe

2 injury” are not sufficient.

3 Clapper, 568 U.S. at 409 (internal citations and quotations omitted).

4 It does appear from the Complaint that Plaintiff has a personal stake in this action.

5 See Townley, 722 F.3d at 1135. Plaintiff contends that he was looking at the New

6 Hampshire Secretary of State website “to become an ‘Official Ballot Candidate for the

7 Office of U.S. Representative.’” Compl. at 2. Furthermore, Plaintiff avers in his IFP

8 Motion that he is a resident of Santee, California. See Mot. at 5. Therefore, it appears

9 Plaintiff is not currently an inhabitant of the state where he is attempting to run for a

10 congressional seat. However, Plaintiff does not adequately allege injury in fact. Plaintiff

11 does not allege that the New Hampshire Secretary of State prevented him from filing his

12 notice of candidacy or refused his application based on Plaintiff’s residency in California.

13

In fact, in an exhibit to the Complaint, a staff member of the New Hampshire Secretary of

14

State emailed Plaintiff and stated that “The Secretary of State’s Website has been revised:

15

NH-SOS – Qualifications for Office [1].” Compl. at 7. Therefore, it is unclear in the

16

Complaint if the issues Plaintiff alleges have already been remedied on the website,

17

rendering this action moot.

18

Plaintiff has not pleaded a “concrete, particularized, and actual or imminent” injury

19

because he has not alleged that he was denied an opportunity to run for a U.S. House of

20

Representatives seat in New Hampshire based on the language at issue on the New

21

Hampshire Secretary of State website. See Clapper, 568 U.S. at 409. Accordingly,

22

Plaintiff’s Complaint must be dismissed for the additional reason that he lacks standing to

23

maintain the present action.

24

V. CONCLUSION

25

Accordingly, IT IS HEREBY ORDERED that:

26

1. Plaintiff’s Motion to Proceed IFP is DENIED;

27

2. Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE; and

28

1 3. Plaintiff is GRANTED thirty (30) calendar days from the date on which

4 || this Order is electronically docketed, or in other words by, Wednesday, April 30, 2022, in

3 || which to reopen his case by both (1) paying the entire $402.00 statutory and administrative

4 filing fee and (2) filing an amended complaint.

5 Any amended filing must be complete in itself, without reference to □□□□□□□□□□□

6 |[Original Complaint. Any claim not re-alleged in Plaintiff's amended complaint will be

7 considered waived. See Civ. L.R. 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co.,

g 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the

g || original.”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that

10 ||claims dismissed with leave to amend which are not re-alleged in an amended pleading

11 be “considered waived if not repled”). If Plaintiff fails to pay the $402.00 filing fee

12 full, this action will remain dismissed without prejudice pursuant to 28 U.S.C. § 1914(a),

13 || and without further Order of the Court.

14 IT IS SO ORDERED. at

15 |) DATED: March 22, 2022

16 HON. LINDA LOPEZ

7 United States District Judge

18

19

20

21

22

23

24

25

26

27

28