David Wilson v. Gerald Birnberg , 569 F. App'x 343 ( 2014 )

Case: 13-20165 Document: 00512650168 Page: 1 Date Filed: 06/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20165 June 3, 2014
Lyle W. Cayce
DAVID BUREN WILSON, Clerk
Plaintiff - Appellant
v.
GERALD BIRNBERG, In his capacity as Chairman of the Harris County
Democratic Party; STAN STANART, Harris County Clerk; LANE LEWIS, in
his capacity as Chair of the Harris County Democratic Party; GERALD
BIRNBERG, individually,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-3257
Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
This appeal arises from an order granting a motion to dismiss for failure
to state an equal protection claim under the Fourteenth Amendment. We
AFFIRM.
FACTS AND PROCEEDINGS
On the deadline date of January 4, 2010, David Buren Wilson submitted
an application for a place on the Democratic Party primary election ballot for
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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the position of Harris County Commissioner for Precinct #4. The application
asked for his residence address and Wilson listed his as 1512 W. 34th Street,
Houston, Texas 77018. The chair of the Harris County Democratic Party,
Gerald Birnberg, formed a personal belief that the address listed was not
Wilson’s residential address, although it was within Precinct #4. 1 He rejected
Wilson’s application, he wrote, “not because I have concluded you do not live
within precinct four. It is solely because I have concluded that your application
fails to include your residence address, as required by mandatory provisions of
the statute.” No other applications were approved for the Democratic primary
ballot for the position.
Wilson “failed to gain relief in various state courts,” and sued Birnberg
and other officials in the United States District Court for the Southern District
of Texas. Wilson v. Birnberg, 667 F.3d 591, 594 (5th Cir.), cert. denied, 133 S.
Ct. 32 (U.S. 2012). Wilson claimed a denial of a right to ballot access, violations
of due process and equal protection, and that Section 141.032 of the Texas
Election Code was unconstitutional on its face. He sought injunctive relief and
damages under 42 U.S.C. § 1983.
1 Birnberg provides the full text of the January 8, 2010 letter that Wilson partially
quotes in his pleadings to explain why Wilson’s application was rejected. In it, he references
a conversation he had with Wilson in which Wilson “indicated that this is actually [his]
business address.” Birnberg said this triggered his statutory obligation to investigate the
application. During this investigation of public records, Birnberg found that Wilson’s wife
was the record title owner of a residence located at 7307 Lake Lane, Houston, Texas, upon
which a residential homestead exemption had been claimed (under Texas law, a married man
is held to reside where his wife resides), Harris County Appraisal District listed the 1512 W.
34th Street site as commercial property described as “Industrial Warehouse-Metallic,” and
there was no City of Houston Certificate of Occupancy authorizing its use for residential
purposes. Because it is referenced in Wilson’s pleadings, we may consider this letter even at
the Rule 12(b)(6) stage. Grynberg v. BP P.L.C., 855 F. Supp. 2d 625, 639 (S.D. Tex. 2012)
aff’d, 527 F. App’x 728 (5th Cir. 2013) (“Generally, any documents that are referenced in the
pleadings themselves may be considered [in a Rule 12(b)(6) motion].”); See Fed. R. Civ. P.
10(c) (adopting documents attached to a pleading as part of the pleading for all purposes).
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Wilson filed three complaints at the beginning of his case: two that were
submitted pro se and a third drafted with the aid of counsel. His “Original
Complaint” was filed on September 10, 2010. It stated that on January 4,
2010, Wilson had “timely and properly filed his sworn application for a place
on the March 2, 2010 Democratic Party Primary Election Ballot
. . . . Defendant originally accepted Plaintiff’s application on January 4, 2010
but 4 days later rejected Plaintiff’s application . . . contending that Plaintiff did
not correctly state his residence address on his application.” Wilson pointed
out a different election law case in which Birnberg had argued that he “had
and has no authority under the Texas Election Code to make a determination
concerning the residency of an applicant for a place on the ballot.” Wilson
identified seven other applicants by name “with similar circumstances” who
had their applications “accepted and certified” by Birnberg and stated that his
was the “only one rejected.” Wilson asserted that his “voter registration, voter
history, and Texas drivers’ [sic] license and other documents” showed that his
“residence” was “correctly stated in his application.” Wilson “incorporate[d]”
various portions of his complaint “by reference” in other portions of his
brief. He also “re-allege[d]” portions of his complaint, pointing to the relevant
numbered paragraphs. 2
On December 8, 2010, Wilson submitted a third complaint, titled his
“Second Amended Complaint” with a motion for leave to file the complaint.
This was the first complaint submitted by counsel. It stated that “[a]t all
relevant times, Wilson resided in Harris County,” but did not allege that 1512
2 Three days later, Wilson filed another document styled his “First Amended
Complaint.” Wilson repeated the majority of his “factual allegations” in a complaint that is
almost identical to his Original Complaint. This time, however, he claimed Birnberg
“accepted and certified” the ballot for at least six people in “similar circumstances.”
3
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W. 34 Street was his residential address. It alleged that “Birnberg rejected
Wilson’s application out of retaliation for Wilson’s exercise of free speech”
because he had circulated flyers opposing Houston Mayor Annise Parker.
Wilson alleged that Birnberg had “deprived [him] a place on the ballot acting
under color of law.”
The district court dismissed the case for failure to state a claim and
Wilson appealed to this court. On January 12, 2012, this court released an
opinion affirming “in all respects except for Wilson’s equal protection claim as
to Birnberg as party chairman. The dismissal of that claim is REVERSED and
the claim is REMANDED.” Wilson, 667 F.3d at 602. This court first pointed
out that Wilson had filed three complaints. Id. at 594-95. While a party has a
right to amend a pleading within 21 days of its service under the Federal Rules
of Civil Procedure, later amendments are permitted “only with the opposing
party’s written consent or the court’s leave.” Id. at 594 (quoting Fed. R. Civ.
P. 15(a)(2)). Since the district court appeared to consider all of the complaints
while not formally ruling on the motion for leave to amend, this court
considered all three as well in evaluating their sufficiency. Id. at 594-95.
However, this court instructed that “[o]n remand . . . the district court should
insist on a single operative complaint.” Id. at 595.
Critical to the analysis were two facts alleged in Wilson’s complaint: (1)
that he “was an eligible candidate” because his “voter history, and Texas
driver[’s] license and other documents show that Plaintiff’s residence is
correctly stated on his application,” and (2) that Birnberg “reject[ed] Wilson’s
application out of retaliation for Wilson’s exercise of free speech” in opposing
the successful Democratic mayoral candidate. Id. at 600, 599. This constituted
sufficient “factual content” supporting Birnberg’s liability on a “class of one”
equal protection theory. Id. at 599.
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On remand, the district court gave Wilson thirty days to file his single
operative complaint. That complaint, styled Wilson’s “Second Amended
Complaint” (to avoid confusion with the prior “Second Amended Complaint,”
this complaint will be referred to as the “Operative Complaint”) and drafted
with the aid of his counsel, included not just an equal protection claim as to
Birnberg as party chairman, but added a conspiracy claim against the former
and current Harris County clerks, Beverly Kaufman and Stan Stanart, and
sought the return of his filing fee from the Harris County Democratic Party
and Lane Lewis, the current chair of the Harris County Democratic Party. It
also sued Gerald Birnberg “individually.”
The Operative Complaint eliminated the assertion made in Wilson’s pro
se filings that he had “properly” filled out his application, asserting only that
Wilson “completed the entire application” and that the “application listed his
residence as 1512 W. 34th St., Houston, Texas 77018.” Instead of any factual
allegations of “retaliation” for opposing a political ally, Wilson alleged that
“Birnberg conducted an investigation and unilaterally determined that
Wilson’s residence was located at 7307 Lake Lane, Houston, TX 77040.”
Instead of listing the names of any similarly-situated parties that had been
treated differently than Wilson, Wilson alleged that, “[f]ive other candidates
did in fact list their commercial address on the application. On reasonable
belief, Birnberg did not investigate those candidates and certified their name
[sic] to appear on the ballot.” Wilson added the allegation that someone in the
Harris County Clerk’s office “placed some election ballots in the mail prior to
the deadline with the intent to aid Birnberg and keep Wilson off the election
ballot” in an effort to make the issue moot under Texas law before his case was
heard. He alleged in the alternative that someone from the “Clerk’s Office lied
to” the state court judge about placing the ballots in the mail to moot his case.
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The district court again dismissed the case for failure to state a claim.
The district court granted the motion to dismiss the Harris County Defendants,
Kaufman and Stanart, under Rule 41(b) (failure to comply with a court order).
The district court found that “[n]owhere did this Court or the Fifth Circuit
allow Plaintiff to add additional claims or additional parties to his lawsuit . . .
[d]oing so was clearly a violation of both the Fifth Circuit and this Court’s
Orders.” For the same reasons, the district court sua sponte dismissed the
claim against the Harris County Democratic Party. As to Birnberg, pursuant
to Rule 12(b)(6), the court dismissed the Section 1983 equal-protection claim
because Wilson no longer specifically alleged in his pleading that Birnberg was
acting under color of law. Alternatively, the district court found Wilson no
longer alleged that the address he provided was his residential address, as
statutorily required to submit a proper application. Wilson appeals this order.
STANDARD OF REVIEW
“We review de novo a district court’s dismissal under Rule 12(b)(6).”
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). Rule 12(b)(6) permits a
party to move to dismiss if a plaintiff has failed “to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[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. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted). “Nor does a complaint suffice
if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[W]hen the allegations in a
complaint, however true, could not raise a claim of entitlement to relief, this
basic deficiency should . . . be exposed at the point of minimum expenditure of
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time and money by the parties and the court.” Cuvillier, 503 F.3d at 401
(internal quotation marks omitted).
DISCUSSION
The Equal Protection clause “protects against the unlawful
administration by state officers of a state statute fair on its face, resulting in
unequal application to those who are entitled to be treated alike.” Wilson, 667
F.3d at 599 (internal quotation marks omitted). 3 To establish liability under a
“class of one” equal protection analysis “the plaintiff must establish (1) he was
‘intentionally treated differently from others similarly situated’ and (2) there
was no rational basis for any such difference.” Id. at 599.
“A candidate’s application for a place on the ballot that is required by
this code must . . . include . . . the candidate’s residence address or, if the
residence has no address, the address at which the candidate receives mail and
a concise description of the location of the candidate’s residence.” TEX. ELEC.
CODE § 141.031(a)(4)(I). “If an application does not comply with the applicable
requirements, the authority [with whom it is filed] shall reject the application
and immediately deliver to the candidate written notice of the reason for the
rejection.” TEX. ELEC. CODE § 141.032(e).
“An amended complaint supersedes the original complaint and renders
it of no legal effect unless the amended complaint specifically refers to and
adopts or incorporates by reference the earlier pleading.” King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994). “[T]he original pleading, once superseded,
cannot be utilized to cure defects in the amended pleading, unless the relevant
3 As an initial matter, this court’s original opinion in this case affirmed the district
court in all respects except for “Wilson’s equal protection claim as to Birnberg as party
chairman.” 667 F.3d at 602 (emphases added). This court gave Wilson no authority to add
additional claims or additional parties to his cause of action, all of whom could have been
included in his Original Complaint or added within the appropriate period of time. Fed. R.
Civ. P. 15. We, therefore, affirm the district court’s dismissal of claims under Rule 41(b).
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portion is specifically incorporated in the new pleading.” 6 Fed. Prac. & Proc.
Civ. § 1476 (3d ed.) (footnotes omitted).
Wilson was provided 30 days by the district court to provide a single,
unified complaint in light of our remand and with the benefit of our opinion’s
guidance. Accordingly, Wilson’s Operative Complaint is the only live
complaint in this proceeding. Although Wilson’s prior complaints evince an
awareness that he could adopt and incorporate parts of a complaint, his
Operative Complaint does not adopt or incorporate any prior filings.
Wilson’s Operative Complaint fails to state a claim upon which relief can
be granted. Wilson’s “factual allegations” no longer include the crucial
assertion that his application was proper because his “residence is correctly
stated on his application.” Wilson ceased to make this allegation when he
began preparing his pleadings with counsel. Wilson’s complaint also no longer
includes any “factual allegations” about Birnberg’s desire to retaliate against
him, which would offer some alternative explanation for why Birnberg rejected
his application other than the fact that it did not comply with the statutory
requirement to state his residence address. The failure to include these
elements fatally undermines his pleadings; he cannot allege that there was “no
rational basis” for the rejection of his application if Birnberg is legally obligated
to review and reject applications without properly listed residence addresses.
Our prior opinion clearly recognized that a prerequisite for Wilson to prove
that he had been discriminated against was that his application had been
statutorily “compliant,” “proper,” and that the “application must list the
candidate’s residential address.” Wilson, 667 F.3d at 594, 600.
Wilson’s pleadings have also become more vague and speculative over
time. While his Original Complaint listed seven people by name “with similar
circumstances” who had their applications accepted and his First Amended
Complaint listed six people by name, his Operative Complaint lists no names
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of similarly-situated people who were certified for the ballot, but merely asserts
now that “[f]ive other candidates did in fact list their commercial address on
the application.” 4 No further detail is offered of these others. No allegation is
made that Birnberg knew these addresses were not the residential addresses
of these prospective candidates but chose to approve them anyway while
rejecting Wilson’s application for some irrational, discriminatory reason. In
light of this, these pleadings fail to rise “above the speculative level” required
to survive a Rule 12(b)(6) challenge. 5
CONCLUSION
For the foregoing reasons, we AFFIRM the district court.
4 The statement strongly implies that Wilson submitted a commercial address.
5 Wilson’s Operative Complaint argues that Birnberg has previously taken the
position that he cannot go outside of the record to unilaterally decide someone’s residency,
and that the fact he did so here evidences discrimination against him. He cites to a brief
submitted on behalf of Birnberg to request that he be estopped from arguing that he can look
outside the record. On the contrary, the full text of the quote reveals that Birnberg’s brief
claimed “that a candidate may be declared ineligible only if . . . facts indicating that the
candidate is ineligible are conclusively established by another public record.” After his
conversation with Wilson in which Wilson told Birnberg that 1512 W. 34th Street was not
his residence, he relied on public records to conclusively establish that Wilson’s application
was non-compliant. There is no discriminatory inconsistency visible here.
9