Opinion

Ulanov v. New York State Board of Elections

Court
District Court, E.D. New York
Filed
Jan 19, 2022
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------- X

:

GENNADIY N. ULANOV,

:

Plaintiff,

: MEMORANDUM AND ORDER

– against – : 22-CV-193 (AMD) (LB)

:

NEW YORK STATE BOARD OF ELECTIONS,

:

Defendant. :

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A NN M. DONNELLY, United States District Judge:

On December 29, 2021, the pro se plaintiff filed this action in the United States District

Court for the Southern District of New York against th e New York State Board of Elections,

asserting that his “[e]lectoral rights” have been violate d.1 (ECF No. 1 at 2.) The Honorable

Andrew L. Carter, Jr. of the Southern District transferred the action to this Court on January 6,

2022. (ECF No. 3.) For the reasons that follow, the complaint is dismissed. The plaintiff is

granted leave to file an amended complaint within 30 days of this order.

BACKGROUND

On November 4, 2020, at around 1 p.m., the plaintiff arrived at a polling station on

Emmons Avenue, Brooklyn. (ECF No. 1 at 8.) While he was waiting in line, he saw that there

were three voting machines, “A,” “B” and “C.” (Id.) The plaintiff noticed that from “car C

people were sent [t]o cars A and B;” he assumed at first that the machine was out of order, but

then observed that some voters were able to use it. (Id.) He examined the machine, and realized

that it was “not sealed.” (Id.) While he took photographs and asked personnel why the machine

1 The plaintiff paid the statutory filing fee to commence this action.

was not sealed, “[t]he members of the election commission tried to cover the car with

themselves.” (Id.) At around 5 p.m., the plaintiff returned to the voting site and saw that “all the

cars were sealed.” (Id.) The plaintiff claims that “the culprit is the New York Election

Commission and personally the chairman,” and that “[his] rights and [the rights of] thousands of

voters have been violated.” (Id.) He seeks $3 million in damages. (Id. at 6.)

STANDARD OF REVIEW

A federal court must “liberally construe[]” pleadings by pro se parties, who are held to

less stringent standards than attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nevertheless, if a pro se action is frivolous, a district court may dismiss the action on its own,

even if the plaintiff has paid the requisite filing fee. Fitzgerald v. First East Seventh Street

Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000). A complaint is frivolous when “‘it is clear

that the defendants are immune from suit.’” Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)

(quoting Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989)). “A pro se complaint should not be

dismissed without the Court granting leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.” Dolan v. Connolly, 794 F.3d

290, 295 (2d Cir. 2015) (citation, quotation marks and alterations omitted).

DISCUSSION

The plaintiff’s claims against the New York State Board of Elections must be dismissed

because the agency is a state entity and immune from suit. The Eleventh Amendment to the

United States Constitution “bar[s] federal suits against state governments by a state’s own

citizens.” Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.

2006). This bar precludes suits for money damages and injunctive relief. See McGinty v. New

York, 251 F.3d 84, 91 (2d Cir. 2001). Moreover, sovereign immunity extends “beyond the states

themselves to ‘state agents and state instrumentalities’ that are, effectively, arms of a state.”

Woods, 466 F.3d at 236 (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)).

Courts in this circuit have held that the New York State “Board of Elections is a state

agency for the purposes of the Eleventh Amendment.” Credico v. New York State Bd. of

Elections, 751 F. Supp. 2d 417, 420 (E.D.N.Y. 2010); see McMillan v. New York State Bd. of

Elections, No. 10-CV-2502, 2010 WL 4065434, at *3 (E.D.N.Y. Oct. 15, 2010) (dismissing

Section 1983 claims against the New York State Board of Elections on the basis of sovereign

immunity), aff’d, 449 F. App’x 79 (2d Cir. 2011). New York has not waived its Eleventh

Amendment immunity to suit in federal court, and Congress has not clearly abrogated the state’s

immunity. See Credico, 751 F. Supp. 2d 417 at 420. Accordingly, the New York State Board of

Elections is immune from suit, and the plaintiff’s claims against it must be dismissed.

CONCLUSION

For the reasons set forth above, the complaint is dismissed. Because the plaintiff is

proceeding pro se, I grant him leave to amend his complaint within 30 days of the date of this

order. The plaintiff is advised that an amended complaint completely replaces the original

complaint, so he must include in the amended complaint all the necessary information to support

his claims. Any amended complaint must be captioned “Amended Complaint” and bear the

same docket number as this order (22-CV-193 (AMD) (LB)). No summons will issue at this

time, and all further proceedings will be stayed for 30 days. If the plaintiff does not file an

amended complaint within 30 days, judgment dismissing this action will be entered. The Court

certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in

good faith and therefore in forma pauperis status is denied for the purpose of an appeal.

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.

__s_/_A__n_n_ M___. _D_o__n_n_e_l_ly________

ANN M. DONNELLY

United States District Judge

Dated: Brooklyn, New York

January 18, 2022

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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