1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) WILLIAM E. HUNT , ) ) Plaintiff, ) ) v. ) Civil Action No. 18

- cv - 2341 ( TSC ) ) ALICE P. MILLER et al

. , ) ) Defendant s
. ) ) )

MEMORANDUM OPINION Plaintiff, a former write

- in mayoral candidate , has sued members of the D.C. Board of Elections and Ethics in their official capacities , stemming from their failure to take certain action before the November 6, 2018 general election

. Pending is Defendant s ’ Motion to Dismiss under Federal Rule of Civil Procedure 1 2(b)(6), ECF
No. 8 , which , for the following reasons , will be GRANTED

. I. BACKGROUND A. Factual Allegations Plaintiff , who is proceeding pro se , was unable to obtain the requisite number of signatures to have his name placed on the voting ballot for the 2018 D.C. m ayoral election . Consequently, he “chose to run as [an] independent paper ballot write

- in candidate.” Answer in Opp’n on Merit Against Defs .’ Motion to Dismiss Compl. (“Pl.2 Opp

. ”) ¶ 1 , ECF No. 17. 1 Although Plaintiff “campaigned for votes in all wards for early voting votes as well as . . . for . . . votes” in the G eneral E lection, he was “stunned” when election administrators supplied a “paper ballot choice for casting [a] ballot” in just “one of 144 voting stations throughout the District . . . during one week of early voting.” Id

. Early voters could obtain paper ballo ts but “only” at the “voting station” at 441 4 th Street, N.W. Id . “ The remaining 143 voting stations contained no . . . means” to vote by paper ballot “as an option to voting machine listed candidates[.]” Id

. “Shock and dismay followed” when on the day of the g eneral e lection, D efendants provided “a limited amount/number of paper ballot[s] to all voting stations[.]” Id

. B. Claims Plaintiff clarifies that his C omplaint , filed on October 10, 2018, is premised on the “denial of due process under the 5 th amend ment by defendants’ taking away paper ballot means from candidate . . . at 143 of 144 voting stations[.]” 2 Pl. Opp

. ¶ 4; see id

. ¶ 5 (“At issue is a due process right[.]”) ; id

. ¶ 14 (“Defendants harmed candidate

plaintiff for mayor due process rights to run and compete for public office position, free

1 At the motion

- to

- dismiss stage, courts must construe pro se filings liberally and read them “together.” Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999)

. The background facts and Plaintiff’s claims are derived largely from his opposition

.
2 Defendants co unter that early voting was offered at “14

– not 144

– Early Voting Centers,” where, unlike on g eneral e lection d ay , residents could vote “regardless of which of the District’s 143 voting precincts they resided in, or which of the 551 ballot styles they required.” Reply at 4. Due to the “administrative burden to provide preprinted ballots in all of the styles necessar y[,] . . . the Board generally only offers pre

- printed paper ballots at only ” the Early Voting Center “ at One Judiciary Square

. . . located at 4 41 4t h Street NW.” Id . At the other 13 Early Voting Centers, residents could “cast their votes ,” including fo r write

- in candidates, “ on blank ballots by using electronic touchscreen ballot marking devices.” Id

.3 from oppressive weight of vote suppression

. ”). Plaintiff seeks “at minimum 1 million dollars in compensation by D.C. government, to be made whole again.” 3 Id

. ¶ 1 8
I I . LEGAL STANDARD The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” and “ the grounds for the court’s jurisdiction ” so that a defendant has fair notice of the claim and the grounds upon which it rests. Fed. R. C iv. P. 8(a); Erickson v. Pardus , 551 U.S. 89, 93 (2007) (per curiam) (citing cases)

. Rule 12(b)(6) permits a party to move for dismissal on the grounds that the complaint has failed “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion “tests the legal sufficiency of a complaint.” Browning v. Clinton , 292 F.3d 235, 242 (D.C. Cir. 2002). To withstand a motion to dismiss, “ a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “ A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ” Id

. A plaintiff’s factual allegations need not establish all elements of a prima facie

case , see Swi erkiewicz v. Sorema N.A ., 534 U.S. 506, 511

- 14 (2002); Bryant v. Pepco , 730 F. Supp. 2d 25, 28

- 29 (D.D.C. 2010) , but they “must be enough to raise a right to

3 In his C omplaint , Plaintiff s eeks an “emergency hearing” and other injunctive relief; Defendants reasonably sugges ted in its opening brief that this action is moot. See generally Mot. to Dismiss. Consistent with Richardson ’ s holding , however, the Court will consider P laintiff’s cla im for damages as “an amendment to his original complaint , ” 193 F.3d at 548 , and “[s] uch claims [generally] ensure a live controversy

. ” Mission Prod. Holdings, Inc. v. Tempnology, LLC , 139 S. Ct. 1652, 1660 (2019)

.4 relief above the speculative level, on the assumption that all the allegations in the complaint ar e true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 5 55

- 56 (2007) (citations omitted). A complaint containing only “ [t] hreadbare recitals of the elements of a cause of action, supported by mere conclu sory statements ”
cannot surv ive a motion to dismiss. Iqbal , 556 U.S. at 678. In addition, the presumption of truth accorded factual allegations at this stage does not apply to a plaintiff ’ s legal conclusions in the complaint, including those “couched” as factual allegations. I d

. (quoting Twombly , 550 U.S. at 555 )

. “In ruling on a motion to dismiss, the Court may consider not only the facts alleged in the complaint, but also documents attached to or incorpo rated by reference in the complaint and documents attached to a motion to dismiss for which no party contests authenticity.” Demissie v. Starbucks Corporate Office & Headquarters , 19 F. Supp. 3d 321, 324 (D.D.C. 2014). Therefore, “‘where a document is re ferred to in the complaint and is central to the plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment’

. . . ‘Otherwise, a plaintiff with a legally deficient claim coul d survive a motion to dismiss simply by failing to attach a dispositive document on which it relied’

. . . Moreover, a document need not be mentioned by name to be considered ‘referred to’ or ‘incorporated by reference’ into the complaint.” Strumsky v. Was hington Post Co ., 842
F. Supp. 2d 215, 217

- 18 (D.D.C. 2012) (citations omitted); see also Long v. Safeway,
Inc. , 842 F. Supp. 2d 141, 144

- 45 (D.D.C. 2012), aff ’ d , 483 Fed. App ’ x. 576 (D.C. Cir. 2012).5 III. ANALYSIS The d ue p rocess c lause of the Fifth Amendment forbids the government from depriving a person of “life, liberty, or property, without due process of law.” To determine whether a valid due process claim has been stated , a court must “ f irst ask whether there exists a liberty or property interest of which a person has been deprived. If so, it asks “whether the procedures followed

. . . were constitutionally sufficient.” Delaware Riverkeeper Network v. Fed. Energy Regulatory Comm ’ n , 895 F.3d 102, 107 (D.C. Cir. 2018) (internal quotation marks omitted; ellipsis in original). Plaintiff has alleged no facts from which a protected liberty interest may be found or inferred. First, he admits that he failed to secure the number of signatures to have his name printed on the ballot b ut was able to p roceed as a write

- in candidate

. Second, n othing prevented D.C. residents from voting for Plaintiff as a write

- in candidate in both the primary and general elections , utilizing either “pre

- printed paper ballots with ink pens ” or “ blank ballots using the touc hscreen ballot marking devices.” Defs.’ Reply at 4

- 5, ECF No. 18 ; see also supra note 2. Third, the election results directly contradict Plaintiff’s un supported a ssertion “that write

- in votes for independent [mayoral] candidates [were] not counted [.] ” Pl.’s Ex. 1 ( Sept. 6, 2018 Letter to D.C. Board of Elections ) , ECF No. 17

- 1

. T he certified election results published on November 1 5 , 2018, show that 9,053 “write

- in” votes were “cast by paper ballot and by voting machines[.]” Reply at 6; https://electionresults.dcboe.org/ electionresults/2018

- General

- Electi on (“Results”)

. That number represented 4.03% of the electorate. See Results. In comparison, t he winning candidate, Muriel Bowser, received 171,608 vote s , which r epresent ed 76.39% of the electorate

. I d

. Even if Plaintiff could identify a6 constitutionally protected interest, he could not have possibly won the election , and therefore has sustained no actionable loss or injury

. IV. CONCLUSION For the foregoing reasons, Defendant ’s motion to dismiss will be GRANTED

. A corresponding order will issue separately.

Date: March 10, 2020 

## Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge