Wilson v. Birnberg

• Citation: 667 F.3d 591
• Decision Date: 12 January 2012
• Docket Number: No. 11–20035Summary Calendar.,11–20035Summary Calendar.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

667 F.3d 591

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. 11–20035Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 2012.

[667 F.3d 593]

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

Michael Martin Essmyer, Sr., Essmyer & Daniel, P.C., Lisa Rice Hulsey, Asst. County Atty., F. Clinton Gambill, II, Houston, TX, James Patrick Sullivan, Asst. Sol. Gen., Kathlyn C. Wilson, Asst. Atty. Gen., Gen. Lit. Div., Austin, TX, for Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Texas.ON PETITION FOR REHEARINGBefore DAVIS and SOUTHWICK,

[667 F.3d 594]

Circuit Judges.^*LESLIE H. SOUTHWICK, Circuit Judge:

Appellant's Petition for Rehearing is GRANTED. We withdraw the prior opinion, 660 F.3d 206, and substitute the following.

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 in part and REVERSE and REMAND in part.

On January 4, 2010, Wilson filed an application to run in the Democratic Party primary election for Harris County Commissioner. The application was filed 15 minutes before the close of business on the last day applications were taken. The application must list the candidate's residential address. Tex. Elec.Code § 141.031(a)(4)(I). Four days later, Harris County Democratic Party Chairman Gerald Birnberg denied the application and cited Wilson's failure to provide his residential address. See Tex. Elec.Code § 141.032(e) (defective application is to be rejected). Birnberg said the sole reason he withheld ballot certification was his conclusion that the address listed on the application was not for Wilson's residence as required by the statute. 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 government officials in the United States District Court for the Southern District of Texas. He claimed a denial of a right to ballot access and violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Wilson later added a claim that Section 141.032 of the Texas Election Code is unconstitutional on its face. He sought injunctive relief and damages under 42 U.S.C. § 1983. The district court dismissed the case for failure to state a claim.

DISCUSSION

A motion to dismiss for failure to state a claim requires close examination of the operative complaint. In this case, there were three complaints. The motion to dismiss was filed four days after the original complaint was filed, and one day after the first amended one was filed. The motion solely discussed the original complaint and was never revised to discuss either of the later ones. The second amended complaint was filed 18 days after the original one. The district court in ordering dismissal held that because all the complaints were “substantially similar,” Birnberg's arguments were applicable to all. We find only one minor change in the first amended complaint, but the next one—the first shown to have been written by counsel—was substantially new.

A party has the right to amend a pleading one time if done within 21 days of its service. Fed.R.Civ.P. 15(a)(1)(A). Later amendments are permitted “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). We interpret the district court's consideration of the motion to dismiss as applicable to all three complaints to be an implicit granting of leave to file the second amended complaint. Had the district court held that the last complaint would not be considered, then the plaintiff could have sought leave to amend. We will not insist on the formalities

[667 F.3d 595]

now when the district court did not. The district court was dismissing the case, making Rule 15 less important. On remand, though, the district court should insist on a single operative complaint.

We review de novo a district court's dismissal for failure to state a claim. True v. Robles, 571 F.3d 412, 417 (5th Cir.2009). A complaint will survive a motion to dismiss if its facts, accepted as true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court's analysis generally should focus exclusively on what appears in the complaint and its proper attachments. Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir.2006). We make all inferences in a manner favorable to the plaintiff, “but plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” City of Clinton v. Pilgrim's Pride Corp., 632 F.3d 148, 152–53 (5th Cir.2010).

There is 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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

Dismissal is improper “if the allegations support relief on any possible theory.” Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.1994). The question at the motion to dismiss stage is whether, “with every doubt resolved in the pleader's behalf, the complaint states any legally cognizable claim for relief.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 640 (3d ed.2004). The inquiry focuses on the entirety of the complaint, regardless of how much of it is discussed in the motion to dismiss.

I. Mootness

We must first consider the jurisdictional issue of mootness. A suit may become moot only as to a particular form of relief. Therefore, we separately analyze mootness as to the claims supporting money damages and for equitable relief. Henschen v. City of Houston, 959 F.2d 584, 587 (5th Cir.1992).

Generally, a request for an injunction is moot “upon the happening of the event sought to be enjoined.” Harris v. City of Houston, 151 F.3d 186, 189 (5th Cir.1998). The requested injunctive relief included judicial orders that would have affected the November 2010 election, such as placing Wilson's name on the ballot. That is now impossible. Claims solely supporting that remedy are moot. Willy v. Admin. Review Bd., 423 F.3d 483, 494 n. 50 (5th Cir.2005).

Wilson also seeks a declaration that the statute requiring the rejection of a non-compliant application is unconstitutional. See Tex. Elec.Code § 141.032(e). The applicant is to be given notice of the reasons for the rejection, which would then allow correction if that is possible. Id. Wilson claimed this statute fails to provide for a hearing, denying Wilson meaningful access to the courts. Should the statute be declared unconstitutional, Wilson also seeks to have the Texas Secretary of State ordered “to issue a directive to all election officials to enjoin enforcement of Texas Election Code § 141.032.”

We do not determine whether the claim for equitable relief regarding Section 141.032 is now moot. That is because we later have to address on the merits the supposed constitutional violation on which the equitable relief would be based. If Wilson's constitutional rights were violated, and if that violation “caused actual

[667 F.3d 596]

damage,” then he has “stated a live claim under § 1983.” Henschen, 959 F.2d at 588. Therefore, Wilson's claims will need to be analyzed for purposes of determining whether damages are available. In that analysis, we determine the only viable constitutional claim arises from the guarantee of equal protection under the Fourteenth Amendment. Because the other claims fail on the merits, there can be no damages. We need not determine whether those non-existent constitutional violations that will not support a damage award might also be moot for purposes of other relief. The review that follows of the potential mootness of the request for injunctive relief is therefore solely in the context of equal protection.

The State argues that all relevant issues for declaratory or injunctive relief are moot now that the election has passed. Wilson invokes the capable-of-repetition, yet evading-review exception to mootness. Generally that exception has two requirements: “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Kucinich v. Tex. Democratic Party, 563 F.3d 161, 164 (5th Cir.2009) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)).

We concluded in Kucinich that in election-law cases, the Supreme Court has not always required that there be a likelihood that the same complaining party will be subject to the challenged action later. Id. at 164–65 (collecting cases). On some occasions, the Court has dispensed with the same-party requirement and focused “instead upon the great likelihood that the issue will recur between the defendant and other members of the public at large.” Id. at 165 (quoting Honig v. Doe, 484 U.S. 305, 335–36, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (Scalia, J., dissenting)). We agree with a Sixth Circuit judge that “the Supreme Court, this Court, and several of this Court's sister circuits have relaxed the same party requirement in the election law context.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 600 (6th Cir.2006) (Clay, J., concurring and dissenting).

It is certainly true, as we noted in Kucinich, that the Supreme Court mentioned in two recent election-law cases that the “plaintiff had specifically alleged a...