Colon v. Monroe Cnty. Bd. of Elections

BELEN COLON, MERCEDES VAZQUEZ SIMMONS, Plaintiffs, v. MONROE COUNTY BOARD OF ELECTIONS, MONROE COUNTY, Defendants.

6:20-CV-06465 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 25, 2021

DECISION AND ORDER

I. INTRODUCTION

Pending before the Court is a motion to dismiss filed by defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 4). For the reasons set forth below, the motion is granted and the complaint is dismissed without prejudice.

II. FACTUAL AND PROCEDURAL BACKGROUND

This action was commenced on July 7, 2020, by the filing of a pro se complaint. (Dkt. 1). The complaint was drafted using a pro se complaint form for violation of civil rights. (Id.). On the first page of the complaint, the caption identifies two plaintiffs—Belen Colon ("Colon") and Mercedes Vazquez Simmons ("Simmons") (hereinafter collectively "Plaintiffs"). (Id. at 1). However, under Colon's and Simmons' names is "See attached list", and the final page of the complaint contains a list of 35 additional names, all of whom apparently reside in different apartments at 100 Boriquen Plaza in Rochester, New York. (Id. at 8). The instructions on the form complaint provide for a plaintiff's signature for parties without an attorney, wherein a certification is made pursuant to Federal Rule of Civil Procedure 11 and the plaintiff agrees to keep the Clerk's Office apprised as to his or her current address. (Id. at 7). Only Colon and Simmons signed the complaint. (Id.).

Similar inconsistencies exist with respect to the defendants named in the action. The caption identifies "Monroe County Board of Elections, County of Monroe" as the defendant or defendants (id. at 1), and then in the portion of the form complaint where it requests the identity of each defendant, for "Defendant No. 1" the name is identified as "Monroe County Board of Elections" and then under "Job or Title" it states "Lashana D. Boose, Acting D. Commissioner" and under "Address" it states "Lisa P. Nicolay, R. Deputy Commissioner." (Dkt. 1 at 2). Both "individual capacity" and "official capacity" are checked for this defendant. (Id.). For "Defendant No. 2" the name is identified as "County of Monroe" and then under "Job or Title" it states, "County Executive." (Id.). Again, both "individual capacity" and "official capacity" are checked for this defendant. (Id.). Although additional space for "Defendant No. 3" and "Defendant No. 4" exists on the form complaint (id. at 3), no additional defendants are identified. The civil cover sheet that accompanied the complaint only identified the defendants as "Monroe County Board of Elections" and "County of Monroe". (Dkt. 1-1).

The facts in the complaint relate to events occurring at a polling location on June 23, 2020, at the Baden Street Settlement located at 13 Vienna Street in Rochester, New York, during a primary election, wherein certain voters were allegedly unable to vote for Hilda Rosario Escher ("Rosario Escher"), a candidate for a New York State Senate seat.(Id. at 4). Plaintiffs allege that the polling site was changed from "Los Flamboyanes, 100 Boriquen Plaza" at the "last minute." (Dkt. 1 at 4). Colon alleges that her daughter Simmons rented a minivan and picked up Colon and her neighbor Pamela Reeves to transport them to the Vienna Street polling site. (Id. at 4). Simmons also allegedly then stopped at 100 Boriquen Plaza and picked up "two other voters and Luis Ortiz." (Id.). The complaint goes on to allege that they arrived at the Vienna Street polling location where various COVID-19 protocols were not being followed, and Luis Ortiz ("Ortiz") was told he could not vote because he was not registered to a party. (Id.). Ortiz and Simmons disputed this information and demanded an affidavit ballot, but Rosario Escher was not listed on the prefilled affidavit ballot. (Id.). There were also difficulties in communication because there was no interpreter at the location. (Id.). Then it is alleged that "all four voters" were finally given ballots but Rosario Escher's name was not listed. (Id.). The complaint alleges that they eventually tried to write in Rosario Escher's name, who was the "only Latina candidate," but the machine rejected their ballots. (Id.). The complaint alleges violations of the constitutional right to vote and the Voting Rights Act, with statutory references to 52 U.S.C. §§10503 and 4(e), and 42 U.S.C. §§ 1973 and 1983. (Id. at 6).

Less than two weeks after the complaint was filed, a notice of appearance was filed on behalf of "BELEN COLON, MERCEDES VAQUEZ SIMMONS, ET AL." by Carlos Rodriguez, Esq. and Theodore S. Kantor, Esq. (Dkt. 2). Four days later, an affidavit of service was filed by Mr. Kantor reflecting service of the summons and complaint on the Monroe County Board of Elections on July 9, 2020, by delivering the same to LashanaBoone, Acting Commissioner, who stated that she was authorized to accept service on behalf of the Board of Elections (Dkt. 3), and another affidavit of service was filed by Mr. Kantor reflecting service of the summons and complaint on the County of Monroe on July 9, 2020, by delivering the same to Brendon Fleming, Senior Deputy County Attorney, who stated that he was authorized to accept service on behalf of the County (Dkt. 3-1).

On July 30, 2020, the pending motion to dismiss was filed by the County Attorney's Office on behalf of "defendants, Monroe County Board of Elections, and County of Monroe, and named defendants Adam J. Bello, County Executive, Lashanna D. Boose, Democratic Commissioner, and Lisa P. Nicolay, Republican Commissioner," with it being maintained that the individual defendants were never properly served. (Dkt. 4-1 at 1; Dkt. 4-2 at 4). However, insufficient service of process is not a basis for the pending motion to dismiss. Instead, the pending motion to dismiss was filed pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that Simmons lacks standing because she does not allege that she attempted to vote at the Vienna Street polling location, personal involvement by the individual defendants is not sufficiently alleged, and the complaint otherwise fails to state a cause of action pursuant to 52 U.S.C. § 10503, section 2 of the Voting Rights Act, codified at 52 U.S.C. § 10301(a), and 42 U.S.C. § 1983. (Dkt. 4-2).

Plaintiffs filed a response in opposition to the motion to dismiss on August 18, 2020. Included within Plaintiffs' opposition is an affidavit from Simmons wherein she contends that she was denied the right to vote on June 23, 2020, at her polling location at 57 St. Paul Street in Rochester, New York, and prior to that at an early voting location on Arnett Boulevard. (Dkt. 11 at ¶ 5). Plaintiffs also submitted ten additional affidavits fromindividuals listed as residing at 100 Boriquen Plaza on the final page of the complaint (Dkt. 7; Dkt. 8; Dkt. 9; Dkt. 12; Dkt. 13; Dkt. 14; Dkt. 15; Dkt. 16; Dkt. 17; Dkt. 18), as well as an affidavit from J. Roberto Burgos depicting a plot by Monroe County Board of Elections officials (including Lashanna Boose) to eliminate Rosorio Escher as a candidate and the elimination of the polling site historically used by the Latino community. (Dkt. 10). In Plaintiffs' memorandum of law submitted in opposition to the pending motion, they argue that all defendants were properly served with the summons and complaint, and that plausible claims are asserted pursuant to section 2 of the Voting Rights Act and 42 U.S.C. § 1983. (Dkt. 19). Plaintiffs do not contend that any other claims are asserted in the complaint.

Defendants filed a reply memorandum of law on August 27, 2020, arguing that all of the affidavits should be disregarded by the Court because they contain new facts and allegations not set forth in the complaint and are in the improper form. Defendants also argue that the individual defendants were never properly served (Dkt. 20 at 10-11), that the individuals purporting to be plaintiffs were not sufficiently identified as such in the complaint (id. at 11-12), that the claims in the affidavit about the polling place being moved from the Los Flamboyanes building were not alleged in the complaint (id. at 12), and that the complaint should not be construed as a pro se complaint as Mr. Kantor appeared prior to the expiration of the deadline to respond to the complaint and had ample opportunity to amend the complaint as of right if he felt the pro se complaint was lacking (id. at 12-13).

III. ANALYSIS

A. Rule 12(b)(6) Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]...