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Mark Brnovich

Attorney General

James Driscoll-MacEachron, Bar No. 027828

Kara M. Karlson, Bar No. 029407

Assistants Attorney General

1275 W. Washington

Phoenix, Arizona 85007-2997

Telephone: (602) 542-8137

Fax: (602) 542-8308

James.Driscoll-MacEachron@azag.gov 

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Brian Edward Malnes,

Plaintiff,

vs.

State of Arizona; Michele Reagan,

Defendants.

Case No: 3:16-cv-08008-GMS

REPLY IN SUPPORT OF 

DEFENDANTS’ MOTION TO DISMISS

This Court should dismiss Plaintiff’s Amended Complaint with prejudice because 

Plaintiff has not shown any ability to state a claim for which relief can be granted. 

Plaintiff’s claims against the State and the Secretary of State are barred by the Eleventh 

Amendment, and Plaintiff cannot state a claim that A.R.S. § 16-101(A)(5) violates either 

the Fifteenth or the Twenty-Sixth Amendment.

I. STANDARD OF REVIEW

Plaintiff’s claims can survive the Defendants’ Motion to Dismiss only if the 

Plaintiff can provide factual support sufficient for the Court to “draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2008). If a plaintiff is unable to allege sufficient facts to support his 

requested relief, then it would be “unfair to the opposing party to be subjected to the 

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expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th

Cir. 2011). These basic pleading requirements also apply to pro se litigants. Ghazali v. 

Moran, 46 F.3d 52, 54 (9th Cir. 1995); see also Am. Ass’n of Naturopathic Physicians v. 

Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) (“A pro se litigant is not excused from 

knowing the most basic pleading requirements.”). A pro se litigant is not entitled to 

amend his complaint to avoid dismissal when such amendment would be futile. Ferdik 

v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 

II. The Eleventh Amendment Disposes of the Majority of Plaintiff’s 

Claims. 

Plaintiff’s argument against Eleventh Amendment immunity in federal court 

misapprehends the relevant authorities. Plaintiff states that the Defendants cited 

numerous Eleventh Amendment cases, “but no settled definition exists, only 

interpretations of the 11th Amendment.” Response at 11. Contrary to Plaintiff’s 

conclusions, however, precedent defining the boundaries of Eleventh Amendment 

immunity is both clear and controlling. 

“It is clear, of course, that in the absence of consent a suit in which the State or 

one of its agencies or departments is named as the defendant is proscribed by the 

Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 

(1984). It is also clear that “an unconsenting State is immune from suits brought in 

federal courts by her own citizens as well as by citizens of another State.” Edelman v. 

Jordan, 415 U.S. 651, 663 (1974). Put simply, “federal jurisdiction over suits against 

unconsenting States ‘was not contemplated by the Constitution when establishing the 

judicial power of the United States.’” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54

(1996). 

Against these authorities, Plaintiff offers only Nevada v. Hall, 440 U.S. 410 

(1979). Resp. at 11. But Hall is inapplicable. In Hall, the State of Nevada was sued in 

California state court. Id. at 411. When a state is sued in the courts of another state, the 

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Eleventh Amendment does not apply. Id. at 420. Plaintiff, however, sued the State of 

Arizona in federal court, and, in federal court, the State’s immunity from suit and the 

immunity of the office of the Secretary of State from a suit for past damages—such as 

the $10 million the Plaintiff is seeking here—is clear, settled law. See Edelman, 415 

U.S. at 663.

Plaintiff then argues that his claims can proceed under Scheuer v. Rhodes, 416 

U.S. 232 (1974), presumably based upon a purported claim against the Secretary in her 

personal capacity. Resp. at 11-12. But Plaintiff did not and cannot plead a personal 

capacity claim under 42 U.S.C. § 1983. At its most basic level, a personal capacity 

claim requires personal involvement. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 

2002); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Pina v. Clarke, 438 

F. App’x 574, 575-76 (9th Cir. 2011) (holding that plaintiff failed to show personal 

involvement in implementation of state statute). Plaintiff’s Amended Complaint does 

not allege that the Secretary had any personal interaction with him. The only interaction 

he allegedly had with the Secretary’s Office was when “Plaintiff attempted to register on 

the State of Arizona’s Voter Registration webpage.” Am. Compl. at 2. Plaintiff has not 

and cannot allege that the Secretary was personally involved in that interaction, so 

Plaintiff cannot rely on Scheuer to save his claims from dismissal. 

Thus, nearly all of Plaintiff’s claims are completely barred by the Eleventh 

Amendment. The Plaintiff cannot bring a claim against the State of Arizona unless the 

State consents to suit, waives its immunity, or Congress specifically abrogates the State’s 

immunity. Seminole Tribe, 517 U.S. at 59; Pennhurst, 465 U.S. at 99, 101-02. 

Additionally, the Court should dismiss all claims for monetary relief against the 

Secretary herself because the Eleventh Amendment bars actions against state officers 

sued in their official capacities for past wrongs when the Plaintiff seeks retroactive relief 

like money damages—and Plaintiff has not and cannot allege any claim against the 

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Secretary in her personal capacity. See Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988); 

Jones, 297 F.3d at 934. 

The only possible remaining claim is a claim for injunctive relief against the 

Secretary in her official capacity; however, as shown below, the Court must dismiss that 

claim because Plaintiff has not plausibly alleged any violation of the Fifteenth or 

Twenty-Sixth Amendments. 

III. Plaintiff Cannot State a Claim that A.R.S. § 16-101(A)(5) Violates the 

Fifteenth or Twenty-Sixth Amendments. 

Plaintiff makes no serious argument that A.R.S. § 16-101(A)(5) violates the 

Constitution. Instead, Plaintiff attempts to equate convicted felons with slaves. This 

comparison is as unpersuasive as it is inappropriate. Put simply, Plaintiff is not and 

never has been a slave.

Plaintiff’s argument first fails because he misapprehends the relevant 

constitutional text. He cites the Thirteenth Amendment, but that amendment specifically 

exempts “punishment for crime whereof the party shall have been duly convicted” from 

the definition of involuntary servitude. U.S. Const. amend. XIII, § 1. Plaintiff’s 

argument also fails to grapple with the horror of slavery by equating a person who has 

been duly convicted of committing a felony or multiple felonies through a judicial 

process that protected his rights under the Fourth, Fifth, Sixth, and Eighth Amendments 

with a person who has no rights at all. There is an unquestionably stark distinction 

between slaves—relegated to the status of chattel by an accident of birth without any

recourse to the courts—and felons, who may have specific rights curtailed on a limited 

basis as a direct result of actions they intentionally committed that harmed other people. 

Turning to Plaintiff’s specific claims, his Amended Complaint fails to state a 

claim upon which relief can be granted under either the Fifteenth or Twenty-Sixth 

Amendments. Plaintiff has failed to provide any basis for his Fifteenth Amendment 

claim. Section 16-101(A)(5) does not discriminate on the basis of “race, color, or 

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previous condition of servitude.” U.S. Const. amend. XV, § 1. Rather, the Arizona law 

limiting felon enfranchisement broadly applies to all felons, not felons of a particular 

race, or felons who have been assigned to work detail as part of their sentence. See 

A.R.S. § 16-101(A)(5). The law allowing felons to re-instate their rights is similarly 

broad, providing for automatic restoration of civil rights to all first-time felons, A.R.S. 

§ 13-912, and allowing any felon to apply for re-instatement of voting rights via 

application to the court system, A.R.S. §§ 13-905, -906, -909, -910. These generallyapplicable statutes do not discriminate on the basis of race or previous condition of 

servitude. Similarly, Plaintiff has failed to state a claim under the Twenty-Sixth 

Amendment because A.R.S. § 16-101(A)(5) applies equally to all felons of voting age, 

and thus does not deny or abridge the right to vote on account of age.1

 U.S. Const. 

amend. XXVI, § 1.

IV. CONCLUSION

For the reasons stated herein and the arguments provided in Plaintiff’s Motion to 

Dismiss, incorporated herein by this reference, Defendants respectfully request that this 

Court dismiss Plaintiff’s Amended Complaint with prejudice.

Respectfully submitted this 3rd day of March, 2016.

Mark Brnovich

Attorney General

 s/ Kara M. Karlson

James Driscoll-MacEachron

Kara M. Karlson 

Assistants Attorney General

Attorneys for Defendants

//

//

//

 1 Plaintiff failed to provide any argument in support of his Twenty-Sixth Amendment 

claim in his response to the Motion to Dismiss.

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I certify that I electronically transmitted the attached document to the Clerk’s 

Office using the CM/ECF System for filing and transmittal of a Notice of Electronic

Filing to the following, if CM/ECF registrants, and mailed a copy of same if nonregistrants, this 3rd day of March, 2016, to:

Brian Edward Malnes

2157 W. Alaska Ave.

Flagstaff, AZ 86001

Plaintiff pro per

 s/ Maureen Riordan

#4936408 v3

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