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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ronald Satish Emrit,

Plaintiff,

v. 

Arizona Supreme Court, et al.,

Defendants.

No. CV-15-01718-PHX-ESW

ORDER

Plaintiff has consented to the exercise of Magistrate Judge jurisdiction. (Doc. 6). 

Pending before the Court is Plaintiff’s Application to Proceed in District Court without 

Prepaying Fees or Costs (Doc. 2). For good cause shown, the Application is granted and 

Plaintiff is allowed to proceed in forma pauperis. The Court, however, must screen the 

Complaint (Doc. 1) before it is allowed to be served. 28 U.S.C. § 1915(e)(2). As the 

Ninth Circuit Court of Appeals has explained, “section 1915(e) not only permits but 

requires a district court to dismiss an in forma pauperis complaint that fails to state a 

claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

The four-count Complaint invokes both the Court’s diversity jurisdiction pursuant 

to 28 U.S.C. § 1332 and federal question jurisdiction pursuant to Article III of the United 

States Constitution. (Doc. 1 at 4). Plaintiff alleges that Defendants “committed a 

material breach of contract with [P]laintiff” and also violated Plaintiff’s rights under the 

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Equal Protection, Due Process, and Privileges and Immunities clauses of the United 

States Constitution. (Id. at 7-9). The crux of Plaintiff’s claims rests on his failure of the 

February 2003 Arizona bar examination. Plaintiff, who is African-American, asserts that 

the examination was “culturally biased” against minorities. Plaintiff seeks damages in 

the amount of $750,000 and an order mandating that Plaintiff be allowed to practice law 

in Arizona.

1

 For the following reasons, the Complaint is dismissed with prejudice.2

I. DISCUSSION

A. Count One: Alleged Material Breach of Contract

“A federal court sitting in diversity must apply the forum state’s choice of law 

rules.” Jorgensen v. Cassiday, 320 F.3d 906, 913 (9th Cir. 2003) (citing Klaxon Co. v. 

Stentor Elec. Mfg. Co., 313 U.S. 487 (1941)). Arizona law provides that the statute of 

limitations for a breach of contract action is six years. ARIZ. REV. STAT. § 12–548. The 

statute of limitations may be equitably tolled. “The equitable tolling doctrine is rooted in 

a number of common law exceptions to statutes of limitations, including: defendant’s 

fraudulent concealment of a cause of action; defendant’s inducement of plaintiff not to 

sue; disability of the suing party; and delays due to war.” Hosogai v. Kadota, 700 P.2d 

1327, 1331 (Ariz. 1985) (citations omitted), superseded by statute as stated in Jepson v. 

New, 792 P.2d 728 (Ariz. 1990). Thus, “[u]nder equitable tolling, plaintiffs may sue after 

1 Plaintiff also requests an order mandating that Plaintiff be allowed to practice law in the states of Maryland and Florida. Regardless of whether Plaintiff has properly 

stated a claim to support this requested relief, the Court has no authority to issue such an 

order.

2 On December 17, 2015, Plaintiff filed a Notice of Appeal indicating that Plaintiff filed an appeal in the Ninth Circuit Court of Appeals. (Doc. 7). Plaintiff alleges that “it 

is and was clearly erroneous and perhaps an abuse of discretion for the trial judge to determine that this case is frivolous.” (Id. at 2). Yet no previous Order has been issued in this case. Generally, once a Notice of Appeal is timely filed, a district court is divested 

of jurisdiction to take any action in the case except those actions that aid the appeal. Ruby v. Secretary of U.S. Navy, 365 F.2d 385, 388 (9th Cir. 1966). However, “[w]here 

the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, 

or reference to a non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case . . . .” Id. at 389. Plaintiff’s Notice 

of Appeal is clearly deficient because it does not reference an appealable order. The 

Court therefore is not divested of jurisdiction to rule on Plaintiff’s Application (Doc. 2) and screen Plaintiff’s Complaint.

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the statutory time period for filing a complaint has expired if they have been prevented 

from filing in a timely manner due to sufficiently inequitable circumstances.” McCloud

v. Arizona Dept. of Public Safety, 170 P.3d 691, 696 (Ariz. Ct. App. 2007) (citation and 

internal quotation marks omitted). However, equitable tolling is applied sparingly and 

only under extraordinary circumstances. Id. at 697-98. 

The Court finds that the latest date on which Plaintiff’s breach of contract claim 

began to accrue is the date Plaintiff learned that he failed the February 2003 Arizona bar 

examination. Gust, Rosenfeld & Henderson v. Prudential Ins. Co of America, 898 P.2d 

964, 966-67 (Ariz. 1995) (holding that discovery rule applies to breach of contract 

claims; under the discovery rule, “a plaintiff’s cause of action does not accrue until the 

plaintiff knows or, in the exercise of reasonable diligence, should know the facts 

underlying the cause”). While the Complaint (Doc. 1) does not indicate when Plaintiff 

received his bar examination results, the Arizona Supreme Court releases the results of 

the February bar examination in May of the same year.

3

 See Bar Briefs, ARIZONA 

ATTORNEY, 34-MAR Ariz. Att’y 41, 42 (March 1998) (“Results for February examinees 

are released in early May, while July examinees are advised in early October”). The

Court therefore deems May 2003 as the date Plaintiff was notified of his results of the

February 2003 bar examination. Accordingly, at the latest, the six-year statute of 

limitations applicable to Plaintiff’s breach of contract claim began to run in May 2003 

and expired in May 2009. This renders Plaintiff’s August 2015 Complaint (Doc. 1) 

untimely by over six years as to Count One. 

Plaintiff asserts that the statute of limitations should be equitably tolled because 

Plaintiff is “still suffering damages as a result of the fact that he failed four bar exams 

. . . .” (Id. at 10-11). Plaintiff has not alleged that “extraordinary circumstances” 

prevented him from timely filing the Complaint. Equitable tolling therefore does not 

3 The Arizona bar examination is administered every February and July. Ariz. R. 

Sup. Ct. 35(a).

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apply. See, e.g., McCloud, 170 P.3d at 697 (equitable tolling applies only in 

“extraordinary circumstances” and not to “a garden variety claim of excusable neglect.”)

(citation and internal quotation marks omitted). Therefore, even assuming arguendo that 

Defendants may be sued4 and that Plaintiff’s alleged facts could support a breach of 

contract claim, the claim is time-barred. Count One is therefore dismissed with 

prejudice.

B. Counts Two, Three, and Four: Alleged Violations of Constitutional Rights

The United States Constitution itself does not create a federal cause of action.

.Azul-Pacifico Inc. v. City of L.A., 973 F.2d 704, 705 (9th Cir. 1992) (“Azul II”) (stating 

that “Plaintiff has no cause of action directly under the United States Constitution”). For

claims alleging the violation of constitutional rights by defendants acting under color of 

state law, a plaintiff must file an action under 42 U.S.C. § 1983. See Arpin v. Santa 

Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“a litigant complaining 

of a violation of a constitutional right does not have a direct cause of action under the 

United States Constitution but must utilize 42 U.S.C. § 1983”) (citing Azul II, 973 F.2d at 

705). For claims alleging the violation of constitutional rights by defendants acting under 

color of federal law, a plaintiff must bring an action under Bivens v. Six Unknown Named 

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 

In Counts Two, Three, and Four, Plaintiff alleges that by “administering a bar 

4 The Arizona Supreme Court is immune from suit. The Eleventh Amendment of 

the United States Constitution bars lawsuits against a state unless Congress has abrogated 

state sovereign immunity or the state has waived it. Holley v. California Dep’t of 

Corrections, 599 F.3d 1108, 1111 (9th Cir. 2010). “The Arizona Supreme Court . . . is an ‘arm of the state’ for Eleventh Amendment purposes.” Lucas v. Arizona Supreme Court 

Fiduciary Certification Program, 457 F. App’x 689, 690 (9th Cir. 2011); see also 

Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 

1987) (“[A] suit against the Superior Court is a suit against the State, barred by the 

eleventh amendment.”). 

In addition, the U.S. Department of Education may be immune from this lawsuit. “[a]bsent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Plaintiff bears 

the burden to demonstrate an “unequivocal waiver” of the government’s sovereign immunity. Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). Plaintiff 

has failed to address the U.S. Department of Education’s sovereign immunity or to allege any such waiver.

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examination which is ‘culturally-biased,’” Defendants have violated Plaintiff’s federal 

constitutional rights. Specifically, Plaintiff alleges violations of the Equal Protection and 

Due Process clauses of the Fifth and Fourteenth Amendments, as well as a violation of 

the Privileges and Immunities clause. Yet Plaintiff does not assert the law (i.e. 42 U.S.C. 

§ 1983 and/or Bivens) under which he is bringing those claims. Counts Two, Three, and 

Four therefore fail to state a claim. Moreover, Counts Two, Three, and Four fail to 

allege specific facts linking Defendants’ action or inaction to the alleged constitutional 

violations. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 

(“Factual allegations must be enough to raise a right to relief above the speculative level

. . . on the assumption that all the allegations in the complaint are true . . . .”); see

also Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) 

(conclusory allegations of discrimination are insufficient to withstand a motion to 

dismiss).

Allowing Plaintiff leave to amend the Complaint to assert the law under which 

Plaintiff brings Counts Two, Three, and Four would be futile. Claims brought under 42 

U.S.C. § 1983 and Bivens are subject to a two-year statute of limitations. TwoRivers v. 

Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (explaining that because 42 U.S.C. § 1983 does 

not contain its own statute of limitations, federal courts borrow the statute of limitations 

applicable to personal injury claims in the forum state); ARIZ. REV. STAT. § 12–542 

(establishing a two-year statute of limitations for personal injury claims); Van Strum v. 

Lawn, 940 F.2d 406, 410 (9th Cir. 1991) (stating that the statute of limitations for a 

Bivens claim is the same as the statute of limitations for a Section 1983 claim). Further, 

even if the Court permitted “direct” constitutional claims in this case, Plaintiff’s claims

still would be subject to a two-year statute of limitations. See Azul II, 973 F.2d at 705

(finding that a plaintiff’s constitutional claims were barred by the limitations period 

applicable to Section 1983 actions and holding that even if the court allowed the plaintiff 

to pursue a “direct” constitutional claim, the claim would also be subject to the statute of 

limitations applicable to Section 1983 actions).

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Like Plaintiff’s breach of contract claim, the Court finds that the latest accrual date 

of Plaintiff’s claims in Counts Two, Three, and Four is the date that Plaintiff was 

provided the results of his February 2003 Arizona bar examination.

5

 As discussed

previously, the Court presumes that Plaintiff’s bar examination results were released in 

May 2003. Hence, at the latest, the two-year statute of limitations began to run in May 

2003 and expired in May 2005. This renders Plaintiff’s August 2015 Complaint untimely 

by approximately ten years as to Counts Two, Three, and Four. As discussed in the 

preceding section, Plaintiff has failed to show that extraordinary circumstances warrant 

equitable tolling of the statute of limitations. Therefore, any constitutional claims based 

on the alleged administration of a “culturally biased” Arizona bar examination that 

Plaintiff took in February 2003 would be time-barred. Counts Two, Three, and Four are 

dismissed with prejudice.

C. Notice to Plaintiff: Vexatious Litigant Order May Issue

The Ninth Circuit recognizes “the inherent power of federal courts to regulate the 

activities of abusive litigants by imposing carefully tailored restrictions under appropriate 

circumstances.” De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990)

(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). “Flagrant abuse of the 

judicial process cannot be tolerated because it enables one person to preempt the use of 

judicial time that properly could be used to consider the meritorious claims of other 

litigants.” Id. at 1148; see also Procup v. Strickland, 792 F.2d 1069, 1073 (11th Cir.

1986) (“Federal courts have both the inherent power and the constitutional obligation to 

protect their jurisdiction from conduct which impairs their ability to carry out Article III 

functions.”). 

A district court may enter an order prohibiting a vexatious litigant from filing 

5 Although the state of limitations applicable to Section 1983/Bivens claims is 

borrowed from state law, federal law governs when the claims accrue. Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999); Papa v. U.S., 281 F.3d 1004, 1009 (9th Cir. 2002); 

Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (under federal law, a claim accrues 

“when a party knows or has reason to know of the injury which is the basis of the cause 

of action”) (citation and internal quotation marks omitted). 

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future actions without prior leave of court. De Long, 912 F.2d at 1146-47 (under the 

power of the All Writs Act, 28 U.S.C. § 1651(a), a district court may enjoin litigants with 

“abusive and lengthy histories” from filing further actions or papers without first 

obtaining leave of court). The Court finds that there is an adequate record to support the 

issuance of a vexatious litigant order against Plaintiff. See Emrit v. Nat’l Academy of 

Recording Arts & Sciences, No. 1:14-cv-00392-SS (W.D. Tex. Feb. 5, 2015), ECF No. 

35 (discussing forty-seven meritless federal lawsuits filed by Plaintiff since March 2013

and entering a vexatious litigant order against Plaintiff); Emrit v. Soc. Sec. Admin., No. 

2:14-cv-01760-GMN-PAL (D. Nev. July 29, 2015), ECF No. 36 (entering a vexatious 

litigant order against Plaintiff); Emrit v. Leal-Mendez, No. 2:14-cv-02281-ROS (D. Ariz. 

Oct. 23, 2014), ECF No. 17 (screening order dismissing Plaintiff’s complaint without 

leave to amend); Emrit v. Access Rx, No. 2:15-cv-00936-DGC (D. Ariz. Nov. 3, 2015), 

ECF No. 10 (screening order dismissing Plaintiff’s complaint with leave to amend and 

noting that “Plaintiff is on his way to becoming a vexatious litigant in the District of 

Arizona”; Plaintiff did not file an amended complaint). Before such a vexatious litigant

order is entered, however, due process requires the Court to afford Plaintiff notice and an 

opportunity to be heard.6

 See De Long, 912 F.2d at 1147. The Court notifies Plaintiff as 

follows: If Plaintiff continues to file frivolous actions, the Court may issue a 

vexatious litigant order enjoining Plaintiff from filing any civil action in the United 

States District Court for the District of Arizona without first obtaining leave of the 

Court. 

II. CONCLUSION

For the above reasons, the Court finds that the Complaint (Doc. 1) fails to state a 

claim upon which relief may be granted as all four counts are time-barred. Because 

6 The following four requirements must be met before a district court may issue a 

vexatious litigant order: (i) the litigant must be given notice and an opportunity to be heard before entry of the order; (ii) the court must compile an adequate record for review; (iii) the court must make substantive findings about the frivolous or harassing nature of 

the plaintiff's litigation; and (iv) the vexatious litigant order must be narrowly tailored to “closely fit the specific vice encountered.” De Long, 912 F.2d at 1147-48.

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Plaintiff’s claims are time-barred, the Court finds that dismissing the Complaint with 

leave to amend would be futile. Accordingly, 

IT IS ORDERED granting Plaintiff’s Application to Proceed in District Court 

without Prepaying Fees or Costs (Doc. 2). 

IT IS FURTHER ORDERED dismissing the Complaint (Doc. 1) with prejudice. 

The Clerk of Court is directed to terminate this case. 

Dated this 9th day of March, 2016. 

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