Samuel H. Sloan v. Alan Schulkin , 689 F. App'x 101 ( 2017 )


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  • 16-1185-cv
    Samuel H. Sloan v. Alan Schulkin, et al.
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order filed
    on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
    document filed with this Court, a party must cite either the Federal Appendix or an
    electronic database (with the notation “summary order”). A party citing a summary order
    must serve a copy of it on any party not represented by counsel.
    At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 3rd day of May, two thousand seventeen.
    PRESENT:            AMALYA L. KEARSE,
    JOSÉ A. CABRANES,
    RAYMOND J. LOHIER, JR.,
    Circuit Judges.
    SAMUEL H. SLOAN,
    Plaintiff-Appellant,                         16-1185-cv
    v.
    ALAN SCHULKIN, BIANKA PEREZ, MARIA R. GUASTELLA, JOHN FLATEAU, MICHAEL A. RENDINO,
    JERRY H. GOLDFEDER, MICHAEL MICHEL, STANLEY KALMON SCHLEIN, JOSE MIGUEL ARAUJO,
    STEVEN H. RICHMAN, KATHLEEN O'KEEFE, RONALD CASTORINA, JR., NEW YORK CITY BOARD OF
    ELECTIONS, STEPHEN EDWARD KITZINGER, SIMON SHAMOUN, NEW YORK STATE BOARD OF
    ELECTIONS, KIMBERLY A. GALVIN, GREGORY C. SOUMAS, DOUGLAS ARTHUR KELLNER,
    VENANCIO BENNY CATALA, MICHAEL J. RYAN,
    Defendants-Appellees,
    DANIEL SZALKIEWICZ,
    Defendant.
    FOR PLAINTIFF-APPELLANT:                                         SAMUEL H. SLOAN, pro se, Bronx, NY.
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    FOR MUNICIPAL DEFENDANTS-APPELLEES: EMMA GRUNBERG and Pamela Seider
    Dolgow, for Zachary W. Carter,
    Corporation Counsel of the City of New
    York, New York, NY.
    FOR STATE DEFENDANTS-APPELLEES:                              DAVID LAWRENCE III, Assistant Solicitor
    General, Barbara D. Underwood, Solicitor
    General, and Steven C. Wu, Deputy
    Solicitor General, for Eric T.
    Schneiderman, Attorney General of the
    State of New York, New York, NY.
    FOR VENANCIO CATALA
    DEFENDANT-APPELLEE:                                          Marissa Sotto, Law Office of Sotto &
    Associates, P.C., Bronx, NY.
    FOR JERRY H. GOLDFEDER
    DEFENDANT-APPELLEE:                                          Jerry H. Goldfeder, pro se, New York, NY.
    FOR STANLEY KALMON SCHLEIN
    DEFENDANT-APPELLEE:                                          Stanley Kalmon Schlein, pro se, Bronx,
    NY.
    Appeal from a judgment of the United States District Court for the Southern District of
    New York (Lorna G. Schofield, Judge).
    UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the April 4, 2016 judgment is AFFIRMED.
    Plaintiff-appellant Samuel Sloan, pro se, brought an action in the District Court against the
    New York State and New York City Boards of Elections (the “State Board” and the “City Board”
    respectively), board commissioners, and private citizens under 
    42 U.S.C. § 1983
     for various
    constitutional violations. Specifically, Sloan claimed that he was excluded from various election
    ballots in 2013, 2014, and 2015 in violation of the Due Process Clause of the Fourteenth
    Amendment and the First Amendment (the “ballot exclusion claims”), and that the composition of
    the State and City Boards violates the “one man, one vote” principal under the Equal Protection
    Clause (the “composition claims”). The District Court dismissed Sloan’s claims on a variety of
    grounds. We assume the parties’ familiarity with the underlying facts, the procedural history of the
    case, and the issues on appeal.
    We review de novo “a district court's dismissal of a complaint pursuant to [Federal Rule of
    Civil Procedure] 12(b)(6) . . . , accept[ing] all well-pleaded allegations in the complaint as true, [and]
    drawing all reasonable inferences in the plaintiff's favor.” Operating Local 649 Annuity Trust Fund v.
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    Smith Barney Fund Mgmt. LLC, 
    595 F.3d 86
    , 91 (2d Cir. 2010). On appeal from a judgment dismissing
    an action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1),
    “we review factual findings for clear error and legal conclusions de novo.” Makarova v. United States,
    
    201 F.3d 110
    , 113 (2d Cir. 2000) (internal quotation marks omitted).
    As an initial matter, we agree with the District Court that the Eleventh Amendment to the
    United States Constitution bars all of Sloan’s claims brought against the State Board under Section
    1983. See Feingold v. New York, 
    366 F.3d 138
    , 149 (2d Cir. 2004) (holding that plaintiff’s Section 1983
    claims against the New York State Department of Motor Vehicles (the “DMV”) were “clearly barred
    by the Eleventh Amendment because the DMV is a state agency”).
    We also agree with the District Court that Sloan’s Section 1983 claims against the individual
    defendants for violations of the First and Fourteenth Amendments, i.e., his ballot exclusion claims,
    fail as a matter of law. As we have observed on prior occasions, “[t]he Due Process Clause does not
    protect against all deprivations of constitutionally protected interests in life, liberty, or property,
    ‘only against deprivations without due process of law.’” Rivera-Powell v. N.Y.C. Bd. of Elections, 
    470 F.3d 458
    , 464 (2d Cir. 2006) (quoting Parratt v. Taylor, 
    451 U.S. 527
    , 537 (1981)). To that end,
    individuals may bring due process claims premised on two different theories: (1) an established state
    procedure violated due process, or (2) “random, unauthorized acts by state employees” violated due
    process. Id. at 465 (internal quotation marks). If the allegedly unconstitutional conduct was “random
    [and] unauthorized,” then a post-deprivation remedy will satisfy due process. Id.
    Sloan’s allegation that the individual defendants unlawfully excluded him from various
    ballots amounts to a due process claim premised on “random, unauthorized acts by state [and city]
    employees.” Id. Because New York law provides for an adequate post-deprivation remedy to a
    candidate aggrieved by his exclusion from a ballot—an expedited proceeding in state court pursuant
    to New York Election Law § 16-102—Sloan fails to allege the existence of a due process violation.
    See id. at 467 (due process satisfied where City Board considered aggrieved candidate’s objection and
    state law provided her “the opportunity to obtain full judicial review by way of a special proceeding
    under New York Election Law Section 16-102”). In addition, because Sloan’s “First Amendment
    claim is inextricably intertwined with the question of whether the state afforded [him] procedurally
    adequate process,” it fails for the same reasons. Id. at 469.
    With respect to Sloan’s composition claims, the District Court correctly concluded that
    Sloan lacked standing to challenge the composition of the City Board. Although the District Court
    disposed of Sloan’s composition claims against the State Board on other grounds, we conclude that
    Sloan similarly lacked standing to challenge the composition of the State Board. See 10 Ellicott Square
    Court Corp. v. Mountain Valley Indem. Co., 
    634 F.3d 112
    , 125 (2d Cir. 2011) (“[W]e may affirm a
    decision on any grounds supported in the record, even if it is not one on which the trial court
    relied.”) (internal quotation marks omitted).
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    To have standing, a plaintiff must show that (1) he has an injury in fact, (2) there is a causal
    connection between the injury and conduct of which the plaintiff complains, and (3) “it must be
    ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’”
    Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560–61 (1992) (internal citations omitted). A plaintiff need
    only show that a favorable decision will relieve a discrete injury to him, not that it would relieve his
    every injury. Larson v. Valente, 
    456 U.S. 228
    , 243, 243 n.15 (1982).
    Sloan challenges the composition of the State and City Board on the ground that including
    only Republicans and Democrats on the Boards violates the Equal Protection Clause. As the District
    Court reasoned, Sloan lacks standing to bring this claim because he fails to allege that he was part of
    “the disadvantaged group.” Able v. United States, 
    88 F.3d 1280
    , 1291 (2d Cir. 1996) (internal
    quotation marks omitted). More specifically, because Sloan claims that he was a Democrat and then
    a Republican, and thus was not a member of any of the independent and minority parties who lack
    representation on the elections boards, he fails to allege an injury likely to be “redressed by a
    favorable decision” here. Lujan, 
    504 U.S. at 561
    ; see League of Women Voters v. Nassau Cnty. Bd. of
    Supervisors, 
    737 F.2d 155
    , 161-62 (2d Cir. 1984) (holding that plaintiffs “as voters from
    overrepresented municipalities, . . . cannot claim any injury”).
    CONCLUSION
    We have considered all of the arguments raised by Sloan and find them to be without merit.
    For the foregoing reasons, the April 4, 2016 judgment is AFFIRMED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
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