A dismissal with prejudice is warranted upon determining “that ‘the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’”
How later courts described this case
- A dismissal with prejudice is warranted upon determining “that ‘the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.’”
Written by the judges who cited it.
The opinion
FILED
11/30/2020
UNITED STATES DISTRICT COURT Clerk, U.S. District & Bankruptcy
FOR THE DISTRICT OF COLUMBIA Court for the District of Columbia
DAVID DURAN, )
)
Plaintiff, )
) Civil Action No. 20-2548 (UNA)
)
)
U.S. CONGRESS et al., )
)
Defendants. )
MEMORANDUM OPINION
This matter, brought pro se by a Texas state prisoner, is before the Court on initial
review of plaintiff’s complaint and motion to proceed in forma pauperis. For the following
reasons, the in forma pauperis motion will be granted and this case will be dismissed.
A district court must immediately dismiss a prisoner’s complaint upon determining that
it, among other enumerated grounds, fails to state a claim upon which relief can be granted. 28
U.S.C. § 1915A. Plaintiff purports to sue the United States Congress and presumably the Texas
Legislature under 42 U.S.C. § 1983, alleging “that U.S. Congress acted under color of state law
to deprive final convicted felons of right or privilege . . . to vote for a President of United States
in November 2020.” Compl. at 4. He requests the right to vote in the 2020 presidential election
“by proxy.” Id.
Mootness aside, the U.S. Supreme Court has “held that a state has the power to
disenfranchise persons convicted of a felony” without running afoul of the Fourteenth
Amendment, Shepherd v. Trevino, 575 F.2d 1110, 1112 (5th Cir. 1978) (citing In Richardson v.
Ramirez, 418 U.S. 24 (1974)), and the “Texas Constitution disenfranchises all persons convicted
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of a felony ‘subject to such exceptions as the Legislature may make,’ ” id. at 1111 (quoting
Vernon’s Ann.Tex.Const. art. VI, s 1). Specifically the “Texas system of disenfranchising and
reenfranchising convicted felons gives the state courts the power to set aside [ ] convictions and
to restore the civil rights of successful state probationers.” Id. at 1115; see Jones v. Governor of
Fla., 950 F.3d 795, 823–24 (11th Cir. 2020) (explaining that Texas law creates “a mechanism
whereby persons convicted of a felony in Texas courts could, after the satisfactory fulfillment of
and expiration of probation, return to the court of conviction and invoke the court’s discretionary
authority to set aside the conviction and re-enfranchise the offender”). Because Plaintiff remains
incarcerated, he cannot plausibly state a claim to relief. Consequently, this case will be
dismissed with prejudice. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (A
dismissal with prejudice is warranted upon determining “that ‘the allegation of other facts
consistent with the challenged pleading could not possibly cure the deficiency.’”) (quoting
Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (other citation
omitted)). A separate order accompanies this Memorandum Opinion.
_________/s/_______________
KETANJI BROWN JACKSON
Date: November 30, 2020 United States District Judge
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