Opinion

Ostrowski v. Office of Elections

Court
District Court, E.D. Missouri
Filed
Oct 19, 2020
Cited by
0 cases
Authority
More cited than 24.1%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

ANDREW OSTROWSKI, )

Plaintiff,

oy, No. 1:20-CV-209 SNLJ

OFFICE OF ELECTIONS, et al.,

Defendants.

MEMORANDUM AND ORDER

This matter is before the Court upon review of a complaint filed by self-represented

plaintiff Andrew Ostrowski. After review of plaintiff's motion to proceed in forma pauperis, the

Court will grant the motion and allow plaintiff to proceed without paying the filing fee in this

proceeding. Additionally, for the reasons discussed below, the Court will dismiss this action as

frivolous and/or for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B).

Legal Standard

To determine whether an action fails to state a claim upon which relief can be granted, the

Court must engage in a two-step inquiry. First, the Court must identify the allegations in the

complaint that are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-

51 (2009). These include “legal conclusions” and “[t]hreadbare recitals of the elements of a cause

of action [that are] supported by mere conclusory statements.” Jd. at 1949. Second, the Court

must determine whether the complaint states a plausible claim for relief. Jd. at 1950-51. This is a

“context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 1950. The plaintiff is required to plead facts that show more than the “mere

possibility of misconduct.” Jd. The Court must review the factual allegations in the complaint “to

determine if they plausibly suggest an entitlement to relief.” Jd at 1951. When faced with

alternative explanations for the alleged misconduct, the Court may exercise its judgment in

determining whether plaintiff's proffered conclusion is the most plausible or whether it is more

likely that no misconduct occurred. Id. at 1950, 1951-52.

The Complaint

Plaintiff currently resides in Cape Girardeau, Missouri. He filed this action on October 2,

2020, seeking injunctive relief, to “solv[e] the electoral college.” He has named thirty-five (35)

defendants in this action, including officials or elections offices from: Hawaii, Alaska, Utah,

Arizona, California, Washington, D.C., Georgia, Illinois, lowa, Maryland, Michigan, Minnesota,

Montana, Nebraska, Nevada, New Jersey, South Dakota, Pennsylvania, Oklahoma, New Mexico,

Vermont, Virginia, Wisconsin, Connecticut, Delaware, Indiana, Kentucky, Massachusetts, New

Hampshire, New York, South Carolina, Missouri and West Virginia.

Plaintiff states the same claims against all the defendants. He states:

[Defendant] has caused duress that has inhibited my speech by causing to question

if I should give money to candidate(s) either directly or indirectly in the

Defendant’s state because of the culpable action to allow vote fraud by not having

adequate checks in balances in place for independent audits of the mail-in ballots

cast, and/or extending absentee ballots from its former form, which also impinges

citizens fully expressing their wish to the electoral college for whom they want for

President. This was done during the Pandemic [in the defendant’s state. ]

Nowhere in the complaint does plaintiff assert that he ever gave money to a specific

candidate or that he was inhibited from doing so in any of the defendant states. Furthermore,

defendant does not state that he suffered any injury to himself, such as that he attempted to vote

by mail-in ballot and that his ballot was rejected in the defendant state.

For relief, plaintiff seeks the following:

I ask that all mailing-in and extended absentee ballots be accompanied by a stamp

from a notary on the ballot. The notary has an id number. The notary provides a log

with date, place and the time when the process of the notary took place. If this

cannot be done then the state(s)/ commonwealth(s) must notify voters that their

ballots will not count and that they must recast their vote in a manner identical to

the process the state(s)/ commonwealth(s) had in place in the Presidential election

in 2016. Citizens United vs. FEC and Bush vs. Palm Beach County Canvassing

Board entitle me to the above relief.

Discussion

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint filed in forma

pauperis if the action is frivolous, malicious, fails to state a claim upon which relief can be granted,

or seeks monetary relief from a defendant who is immune from such relief. An action is frivolous if

it “lacks an arguable basis in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989).

The term “‘frivolous,’ when applied to a complaint, embraces not only the inarguable legal

conclusion, but also the fanciful factual allegation.” Jd. A court can properly dismiss an action if

the allegations in the complaint are found to be “clearly baseless.” Denton v. Hernandez, 504 U.S.

25, 32-33 (1992) (citing Neitzke, 490 U.S. 319). Allegations are clearly baseless if they are

“fanciful,” “fantastic,” or “delusional,” or if they “rise to the level of the irrational or the wholly

incredible.” Jd. Here, plaintiff's complaint provides no basis for how defendants violated his

constitutional rights.

Plaintiff is a resident of Missouri. Plaintiff has not alleged that he attempted to vote in any

of the thirty-five (35) states that he named as defendants in this action. Additionally, he has not

even alleged that he attempted to vote in his home state of Missouri. Nor has he indicated how his

First Amendment rights have been violated by other states than his home state, i.e., such that he

attempted to use mail-in voting in those states and he was denied the opportunity. Plaintiff's vague

and conclusory assertions that he was too afraid to give money to a candidate because he was

unsure of the efficacy of mail-in voting are too speculative and conclusory to state a claim for

relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Even pro se plaintiffs are required to allege

facts in support of their claims, and the Court will not assume facts that are not alleged. See Stone

v. Harry, 364 F.3d 912, 914-15 (8th Cir. 2004). Furthermore, in order to demonstrate a case or

controversy in federal court, a plaintiff must allege concrete legal issues, presented in actual cases,

not abstractions. See United Public Workers v. Mitchell, 330 U.S. 75 (1947). Plaintiff's allegations

fail to state an actual case or controversy in this action. As a result, the Court will dismiss this

action as frivolous pursuant to 28 U.S.C. § 1915¢e)(2)(B).

Accordingly,

IT IS HEREBY ORDERED that plaintiff may proceed in forma pauperis in this action.

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. 28

U.S.C. § 1915(e)(2)(B).

IT IS FURTHER ORDERED that an appeal from this dismissal would not be taken in

good faith.

An Order of Dismissal shall be filed with this Memorandum and Order.

Dated this 7774 day of October, 2020.

_ LPlen hocaa ff

_ STEPHEN N. LIMBAUGHR.

SENIOR UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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