660 F.3d 206 (5th Cir. 2011), 11-20035, Wilson v. Birnberg

Docket Nº:11-20035
Citation:660 F.3d 206
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:David Buren WILSON, Plaintiff-Appellant, v. Gerald BIRNBERG, In His Capacity as Chairman of the Harris County Democratic Party; Beverly Kaufman, Harris County Clerk; Hope Andrade, Secretary of State; Greg Abbott, Texas Attorney General; Edward Emmett, Harris County Judge, Defendants-Appellees.
Attorney:Keith Alexander Gross, League City, TX, for Plaintiff-Appellant. Michael Martin Essmyer, Sr., Essmyer, Tritico & Rainey, L.L.P., Lisa Rice Hulsey, Asst. County Atty., F. Clinton Gambill, II, County Attorney's Office for the County of Harris, Houston, TX, James Patrick Sullivan, Asst. Sol. Gen., K...
Judge Panel:Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
Case Date:September 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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660 F.3d 206 (5th Cir. 2011)

David Buren WILSON, Plaintiff-Appellant,

v.

Gerald BIRNBERG, In His Capacity as Chairman of the Harris County Democratic Party; Beverly Kaufman, Harris County Clerk; Hope Andrade, Secretary of State; Greg Abbott, Texas Attorney General; Edward Emmett, Harris County Judge, Defendants-Appellees.

No. 11-20035

United States Court of Appeals, Fifth Circuit.

September 16, 2011

Page 207

[Copyrighted Material Omitted]

Page 208

Keith Alexander Gross, League City, TX, for Plaintiff-Appellant.

Michael Martin Essmyer, Sr., Essmyer, Tritico & Rainey, L.L.P., Lisa Rice Hulsey, Asst. County Atty., F. Clinton Gambill, II, County Attorney's Office for the County of Harris, Houston, TX, James Patrick Sullivan, Asst. Sol. Gen., Kathlyn C. Wilson, Asst. Atty. Gen., Austin, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

David Buren Wilson brought suit against various officials arising from his name not being placed on the 2010 primary election ballot in Houston, Texas. His complaint was dismissed for failure to state a claim. We AFFIRM.

On January 4, 2010, Wilson filed an application to run for Harris County Commissioner in the Democratic Party primary election. It was filed 15 minutes before the close of business on the last day applications were taken. Four days later, Harris County Democratic Party Chairman Gerald Birnberg denied the application for Wilson's failure to provide his residential address. Wilson had instead put his business address on the application, a fact Birnberg supported with public records. There is no dispute that Wilson's residential address was within the relevant district. Wilson's name was never placed on the primary ballot. He failed to gain relief in various state courts.

In September 2010, Wilson sued Birnberg and other governmental officials in the United States District Court for the Southern District of Texas, claiming that the defendants violated his constitutional rights by denying him a place on the ballot. He claimed violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Wilson later added a claim that Section 141.032(e) of the Texas Election Code was unconstitutional. He sought injunctive relief and damages. He also filed for summary judgment and claimed no facts were in dispute, which he has reurged in this appeal. The district court dismissed the case for failure to state a claim.

DISCUSSION

We review de novo a district court's dismissal for failure to state a

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claim. True v. Robles, 571 F.3d 412, 417 (5th Cir.2009). We accept the appropriately pled facts as true and uphold dismissal if the plaintiff has not alleged " enough facts to state a claim to relief that is plausible on its face" and has failed to "...

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