Strunk v. The State of California et al

MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Personal Jurisdiction

N.D.N.Y.February 24, 2017

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________ CHRISTOPHER EARL STRUNK, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. _________________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-1496 (BKS/DJS) NOTICE OF MOTION MOTION BY: National Archives and Records Administration, President of the United States Senate, and the United States Department of Commerce, Bureau Of the Census DATE, TIME AND PLACE: April 6, 2017 10:00 a.m. Federal Building and U.S. Courthouse Syracuse, New York SUPPORTING PAPERS: Memorandum of Law and Exhibits submitted herewith RELIEF SOUGHT: Summary Judgment Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) PAPERS IN OPPOSITION: To be filed and served pursuant to L.R. 7.1 on or before March 20, 2017 REPLY PAPERS: To be filed and served pursuant to L.R. 7.1 on or before March 27, 2017 Case 1:16-cv-01496-BKS-DJS Document 26 Filed 02/24/17 Page 1 of 2 2 Dated: February 24, 2017 RICHARD S. HARTUNIAN United States Attorney Northern District of New York By: /s/John D. Hoggan, Jr. JOHN D. HOGGAN, JR. Assistant United States Attorney Bar Roll No. 511254 James T. Foley U.S. Courthouse 445 Broadway, Room 218 Albany, NY 12207 Telephone: (518) 431-0247 Facsimile: (518) 431-0249 john.hoggan@usdoj.gov Case 1:16-cv-01496-BKS-DJS Document 26 Filed 02/24/17 Page 2 of 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _________________________________________________ CHRISTOPHER EARL STRUNK, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. _________________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-cv-1496 (BKS/DJS) _____________________________________________________ FEDERAL DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS PETITION AND COMPLAINT _____________________________________________________ RICHARD S. HARTUNIAN United States Attorney Northern District of New York By: JOHN D. HOGGAN, JR. Assistant United States Attorney James T. Foley U.S. Courthouse 445 Broadway, Room 218 Albany, NY 12207 Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 1 of 15 1 Defendants National Archives and Records Administration (“NARA”), President of the United States Senate, and the United States Department of Commerce, Bureau of the Census (collectively, the “Federal Defendants”) respectfully submit this memorandum of law in support of the Federal Defendants’ motion to dismiss the petition and complaint (the “Complaint”) of Plaintiff Christopher Earl Strunk (“Plaintiff” or “Strunk”). (Dkt. #1). For the reasons discussed below, Plaintiff’s complaint lacks any merit as a matter of law. Accordingly, the Federal Defendants submit that the instant matter should be dismissed in its entirety, with prejudice. STATEMENT OF FACTS This matter is merely the latest in a long line of bizarre, frivolous and nonsensical cases filed by Strunk. (Dkt. #1, ¶ 1). Stated simply, Strunk claims that the states of New York and California have conspired with various political actors to use the 1993 New Voter Registration Act (“NVRA”) and the 2002 Help America Vote Act (“HAVA”) to register “illegal aliens” to vote and that illegal aliens have been counted for purposes of Congressional apportionment, thereby diluting the “vote property” of “USA Citizens” and committing “insurrection against the United States of America. (Dkt. #1, ¶¶ 24-25, 102-04). Along with various conspiracy theories involving the Roman Catholic Church, the Jesuits, the Sovereign Military Order of Malta, Franklin Delano Roosevelt, the Gold Reserve Act of 1934 and the Emergency Banking Act of 1933, see Strunk v. N.Y. Province of Soc. of Jesus, No. CIV.A. 09-1249 (RJL), 2010 WL 816121, at *1 (D.D.C. Mar. 8, 2010), Strunk has unsuccessfully raised this specific claim of vote dilution in at least two prior federal lawsuits. See, e.g., Forjone v. State of California, et al., No. 1:06- CV1002 (LEK/RFT), 2010 WL 653651 (N.D.N.Y. Feb. 19, 2010), aff'd, 425 F. App’x 73 (2d Cir. 2011); Strunk v. United States Dep’t of Commerce, Bureau of the Census, et al., Civ. No. 09-1295 (RJL), 2010 WL 960428, *1 (D.D.C. Mar. 15, 2010). Despite his submission of Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 2 of 15 2 hundreds of pages of rambling, incoherent and/or irrelevant material, Strunk has alleged remarkably few actual facts in support of his Complaint. Accordingly, the Federal Defendants limit their factual recitation to the few facts which are relevant to the instant motion. In the instant case, Strunk alleges a vague conspiracy between the states of New York and California, and the Democratic Party, “to use illegal alien voters at the 8 November 2016 General Election” for President of the United States of America. (Dkt. #1, at 2). Strunk alleges that “USA Citizens individually together are supposed to be protected against economic injury brought by overwhelming invasion of aliens in the USA under the 1965 Immigration and Nationality Laws, [but] aren’t protected because defacto [sic] public officers don’t or can’t enforce related laws[.]” (Dkt. #1, ¶ 25). Specifically, Strunk contends that California and New York have each created circumstances which enable illegal aliens to vote in federal elections. (Dkt. #1, ¶¶ 46, 51-52). As a result, Plaintiff “complains of infringement harm to his natural and fundamental rights with time as the essence with imminent irreparable damage” if the results of the 2016 presidential election are certified. (Dkt. #1, ¶ 68). Strunk seeks to restrain NARA from delivering the Electoral College votes of New York and California to the President of the United States Senate, and to restrain the President of the United States Senate from delivering the tally of those votes to United States Senate.1 (Dkt. #1, at 33). These events have already occurred. 1 Strunk also seeks injunctive relief on various ancillary matters, including “[t]hat the US Bureau of the Census Director is to deliver an accurate certified record of all non-citizens and or illegal aliens enumerated in every state of the several states since the 2000 census enumeration.” (Dkt. #1, at 34). Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 3 of 15 3 PROCEDURAL HISTORY Strunk commenced the instant action on December 15, 2016, and sought a temporary restraining order and preliminary injunction. (Dkts. #1, 5). On December 16, 2016, the Court issued an order directing Strunk to comply with the requirements of N.D.N.Y. Local Rule 7.1. (Dkt. #6). On December 30, 2016, Strunk filed the Supplemental Strunk Affidavit purporting to cure the deficiencies identified by the Court in his motion papers. (Dkt. #8). On January 11, 2017, the Court issued an order directing the Defendants to respond to Strunk’s application for preliminary injunctive relief by January 25, 2017. (Dkt. #11). Strunk’s motion was fully briefed and submitted as of February 3, 2017. (Dkt. #20). By Memorandum -Decision and Order dated February 22, 2017, the Court denied Strunk’s motion in its entirety. (Dkt. #24).2 ARGUMENT I. Standard of Review A. Federal Rule of Civil Procedure 12(b)(1) “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Id. at 113. “When the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin. Servs. 2 In its Memorandum-Decision and Order, the Court ordered additional letter briefing on the applicability of Shapiro v. McManus, ___ U.S. ___, 136 S.Ct. 450, 455-56 (2015), to Plaintiff’s request for a three-judge panel under 28 U.S.C. § 2284. While the United States intends to submit such additional briefing within the time provided by the Court on whether Strunk has raised a “substantial federal question” within the meaning of Shapiro, it should be noted that, by its terms, Shapiro has no effect upon the ability of the Court to dismiss the Complaint on any of the Rule 12(b)(1) grounds discussed below because “[a] three-judge court is not required where the district court itself lacks jurisdiction of the complaint[.]” Id. at 455. Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 4 of 15 4 Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). Thus, “a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113. B. Federal Rule of Civil Procedure 12(b)(6) To survive a motion to dismiss under Federal Rule of Civil Procedure Rule 12(b)(6), each claim in a pleading must set forth sufficient factual allegations, accepted as true, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). In applying this standard, the Court must “accept[ ] all factual allegations in the complaint as true, and draw[ ] all reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, the Court need not credit “legal conclusions” in a claim or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotations and alteration omitted). In addition, “only a complaint that states a plausible claim for relief survives a motion to dismiss,” and “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context- specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Iqbal, 556 U.S. at 679) (internal quotations omitted). When considering a motion to dismiss brought against a pro se litigant, the complaint and pleadings of a pro se plaintiff must be liberally construed in favor of that party and held to a less rigorous standard of review than pleadings drafted by an attorney. See Angulo v. Nassau Cnty., 89 F. Supp. 3d 541, 548–49 (E.D.N.Y. 2015). The Second Circuit “liberally construe[s] pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 5 of 15 5 arguments they suggest.” Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). II. All of Plaintiff’s Causes of Action Must Be Dismissed Pursuant to Federal Rule of Civil Procedure 12(b)(1). Strunk asserts seven causes of action in his Complaint: (1) denial of substantive due process; (2) denial of equal protection; (3) conspiracy to deny equal protection; (4) infringement on plaintiff’s speech and association; (5) disproportionate dilution of house representation using illegal aliens for partisan unjust enrichment; (6) dilution of “vote property” using illegal aliens; and (7) insurrection against the United States using illegal aliens. Each of these causes of action relies upon Strunk’s regurgitation of quotations, materials, allegations and conspiracy theories culled from various websites and other sources, and none states a viable cause of action against the Federal Defendants. A. Plaintiff Lacks Standing to Assert His Claims Against the Federal Defendants “Article III of the Constitution confines the judicial power of federal courts to deciding actual ‘Cases’ or “Controversies.’” Hollingsworth v. Perry, ___ U.S. ___, 133 S. Ct. 2652, 2661 (2013). Standing is “the threshold question in every federal case,” Warth v. Seldin, 422 U.S. 490, 498 (1975), and “one essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. Hollingsworth, 133 S. Ct. at 2661. Respectfully, it is clear that Struck does not have standing to bring whatever claims he is attempting to assert against the Federal Defendants. To establish Article III standing, a plaintiff must plead three elements: (1) “injury in fact,” (2) a “causal connection” between the injury and the challenged act, and (3) that the injury “likely” would be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and internal quotations omitted). “The party invoking federal Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 6 of 15 6 jurisdiction bears the burden of establishing these elements.” Id. at 561. In the standing context, the Supreme Court “presume[s] that federal courts lack jurisdiction unless the contrary appears affirmatively from the record.” DaimlerChrysler v. Cuno, 547 U.S. 332, 342 n.3 (2006) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)). An “injury in fact” means “an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560-61 (internal quotations and citations omitted). That injury “must affect the plaintiff in a personal and individual way.” Id. at 560 n.1. See also Raines v. Byrd, 521 U.S. 811, 819 (1997) (“a plaintiff's complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him”). In cases where “a constitutional question is presented,” the Supreme Court has “strictly adhered to the standing requirements to ensure that our deliberations will have the benefit of adversary presentation and a full development of the relevant facts.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986). The Supreme Court has observed that “[t]he requirement of actual injury redressable by the court . . . tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Id. (internal quotations and citations omitted). It is clear that Strunk fails to allege any actual imminent specific harm which is individualized to him in his Complaint. Strunk does not allege anything about himself which is different from any of the millions of persons living in the State of New York. The most that Strunk clearly alleges about himself is that he lives in the Northern District of New York, and that he is a serial pro se litigant. (Dkt. #1, ¶ 1). Other than ambiguous references to the dilution of his “voting property[,]” Plaintiff makes no allegation of how he has been injured by the Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 7 of 15 7 NVRA, HAVA, or the alleged conspiracy to facilitate the voting of illegal aliens in federal elections, or how any putative injury would be redressed by a remedial order against the Federal Defendants. Accordingly, Strunk’s allegations are so abstract, attenuated, and speculative that they fail as a matter of law on all three prongs of the test for standing – injury, causation, and redressability, and Strunk has failed to meet his burden of articulating a ground for Article III standing to assert any claims against the Federal Defendants. As noted above, in at least two prior federal cases, Strunk alleged that his vote would be diluted by the votes of alleged “illegal alien” voters. In each case, his claims were dismissed because, inter alia, “Plaintiffs … fail to allege any concrete injury.” See Forjone, 2010 WL 653651, at *4; Strunk v. U.S. Dep’t of Commerce, 2010 WL 960428, at *3 (“‘[Strunk’s] challenge to the 2010 Census raises an “abstract question[ ] of wide public significance,’ Warth v. Seldin, 422 U.S. 490, 500 (1975), and thus he fails to allege an injury in fact, that is, ‘an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’”) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). This is equally true to the extent that Strunk is claiming that the alleged conspiracy undermines our republican form of government. As the District Court for the District of Columbia held in dismissing one of Strunk’s many frivolous actions: Nor does plaintiff have standing to bring a claim that defendants’ actions deprive him of a republican form of government. The Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government – claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large – does not state an Article III case or controversy.” Where, as here, “[p]laintiff's stake is no greater and his status no more differentiated than that of millions of other voters[,] . . . his harm is too vague and its effects too attenuated to confer standing on any and all voters.” Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 8 of 15 8 See Strunk v. N.Y. Province of Soc. of Jesus, 2010 WL 816121, at *2 (D.D.C. Mar. 8, 2010) (internal citation omitted). As Strunk lacks standing, the Complaint must be dismissed. B. Plaintiff’s Claims are Barred By Principles of Sovereign Immunity Strunk’s Complaint must also be dismissed because his claims against the Federal Defendants are barred by sovereign immunity. It is elementary that “[t]he United States, as sovereign, is immune from suit save as it consents to be sued ···, and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 (1969). It is axiomatic that an individual cannot sue the United States, its agencies, or its officers in their official capacities, without an express waiver of sovereign immunity. See United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Testan, 424 U.S. 392, 399 (1976); Sherwood, 312 U.S. at 586. “The shield of sovereign immunity protects not only the United States but also its agencies and officers when the latter act in their official capacities.” Dotson v. Griesa, 398 F.3d 156, 177 (2d Cir. 2005). As Plaintiff has not alleged any specific waiver of the United States’ sovereign immunity here which would allow for subject matter jurisdiction of claims against the Federal Defendants, each of his causes of action must be dismissed.3 C. Plaintiff’s Claims Against the Federal Defendants are Moot Strunk’s claims are moot because Congress has already declared the winner of the presidential election. The mootness doctrine limits Article III courts to deciding “actual, ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). A case becomes moot when it is 3 To the extent that Strunk’s claims are construed as claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), they are still subject to dismissal as the FTCA does not provide a waiver of sovereign immunity for constitutional torts. Akeem v. United States, 854 F. Supp. 2d 289, 295 n.5 (E.D.N.Y. 2012) (citing FDIC v. Meyer, 510 U.S. 471, 477–78 (1994)). Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 9 of 15 9 “impossible for the court to grant any effectual relief whatever to a prevailing party.” In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999) (internal quotation omitted). Thus, “Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). The electoral votes have already been cast, and the United States Senate has already counted them and declared Donald Trump the winner of the 2016 presidential election. See 163 Cong. Rec. H185–90 (daily ed. Jan. 6, 2017) (Counting of Electoral Votes—Joint Session of the House and Senate); 3 U.S.C. § 15 (mandating that such vote take place on January 6). As the Second Circuit previously held in affirming the dismissal of one of Strunk’s many prior lawsuits: The district court was correct to reject all of Strunk's claims. Strunk’s request for injunctive relief is moot because the presidential electors were already seated at the December 18, 2000 meeting of the electoral college and the President and Vice President of the United States have been elected. See United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999). Thus, it is “impossible for the court to grant any effectual relief whatever to the prevailing party.” In re Kurtzman, 194 F.3d 54, 58 (2d Cir. 1999); see also Spencer v. Kemna, 523 U.S. 1, 7 (1998); Fox v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir. 1994), cert. denied, 515 U.S. 1169 (1995). Strunk v. U.S. House of Representatives, 24 Fed. App’x 21, 22–23 (2d Cir. 2001). Accordingly, each of Plaintiff’s causes of action must be dismissed as his claims are clearly moot. III. Each of Plaintiff’s Claims Must Be Dismissed Pursuant to Federal Rule of Civil Procedure 12(b)(6) for Failure to State a Cause of Action. In addition to the foregoing threshold jurisdictional defects, Strunk’s Complaint must also be dismissed because each of his causes of action fails as a matter of law. At most, Plaintiff’s Complaint consists of a series of conclusory and unsupported allegations and conspiracy theories Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 10 of 15 10 that are wholly insubstantial and obviously frivolous and, therefore, insufficient to plausibly allege a claim upon which relief may be granted. As such, none of his causes of action state a viable claim against the Federal Defendants. 1. Substantive due process Strunk’s first cause of action alleges an unspecified denial of substantive due process by the “California and New York Defendants,” and by its terms states no claim against the Federal Defendants. Even if it could be construed to state a claim against the Federal Defendants, it must be dismissed. “A substantive due process claim has two elements: (1) identification of the constitutional right at stake, and (2) consideration of whether the state action was arbitrary in a constitutional sense.” See Drain v. Freeport Union Free Sch. Dist., No. 14-CV-1959 SJF, 2015 WL 1014451, at *1 (E.D.N.Y. Mar. 9, 2015); Bryant v. City of New York, No. 99 Civ. 11237, 2003 WL 22861926, at *8 (S.D.N.Y. Dec.2, 2003) (citing Lowrance v. Achtyl, 20 F.3d 529, 537 (2d Cir. 1994)). As Strunk has neither identified a constitutional right which has been denied to him nor identified any alleged arbitrary state action directed at him which deprived him of such a right, his first cause of action fails as a matter of law. 2. Equal protection Strunk’s second cause of action alleges an unspecified denial of equal protection under the law by the “California and New York Defendants,” and by its terms states no claim against the Federal Defendants. Even if it could be construed to state a claim against the Federal Defendants, it must be dismissed. A claim of violation of equal protection by selective enforcement of the law generally has two elements: “(1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 11 of 15 11 constitutional rights, or malicious or bad faith intent to injure a person.” LaTrieste Rest. & Cabaret Inc. v. Village of Port Chester, 40 F.3d 587, 590 (2d Cir. 1994). Under Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), an individual, not alleging invidious discrimination on the basis of membership in some group, may nevertheless prevail on an equal protection claim provided she shows that (1) “she has been intentionally treated differently from others similarly situated and” (2) “there is no rational basis for the difference in treatment.” As Strunk’s second cause of action contains no allegation that he was intentionally treated differently than other similarly situated persons, his second cause of action fails as a matter of law. 3. Equal protection conspiracy Strunk’s third cause of action alleges a conspiracy to deprive him of equal protection under the law in violation of 42 U.S.C. § 1985 by the “California and New York Defendants,” and by its terms states no claim against the Federal Defendants. Even if it could be construed to state a claim against the Federal Defendants, it must be dismissed. To make out a violation of Section 1985, a plaintiff “must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Robinson v. Allstate Ins. Co., 508 Fed. App’x 7, 9 (2d Cir. 2013) (quoting United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828–29 (1983)) (internal quotation marks omitted). With respect to the second element, a plaintiff must show that the conspiracy was motivated by “some racial or perhaps otherwise class-based, invidious discriminatory animus....” Id. (quoting Britt v. Garcia, 457 F.3d 264, 270 Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 12 of 15 12 n.4 (2d Cir. 2006)) (internal quotation omitted); see also Posr v. Court Officer Shield, No. 207, 180 F.3d 409, 419 (2d Cir. 1999); Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). It is patently clear that Strunk has failed to allege any facts which would establish a cause of action under Section 1985 and, accordingly, his third cause of action fails as a matter of law. 4. First Amendment – Speech and Association Strunk’s fourth cause of action alleges a violation of his First Amendment right to freedom of speech and association by the “California and New York Defendants,” and by its terms states no claim against the Federal Defendants. Even if it could be construed to state a claim against the Federal Defendants, it must be dismissed. This cause of action fails as Strunk has not identified any putative speech or associational right which was allegedly infringed upon. The Supreme Court has recognized two types of associational rights: an individual's right to associate with others in intimate relationships and a right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct. See, e.g., Adler v. Pataki, 185 F.3d 35, 42 (2d Cir.1999) citing Roberts v. United States Jaycees, 468 U.S. 609 (1984), Birmingham v. Ogden, 70 F. Supp. 2d 353, 368 (S.D.N.Y. 1999). Strunk’s Complaint is devoid of any allegation that his associational or speech rights have been infringed in any way. At most, Strunk has alleged the sort of bare “legal conclusions” or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” which are insufficient as a matter of law. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). As such, his fourth cause of action must be dismissed. 5. Disproportionate Dilution of House Representation for Partisan Enrichment Strunk’s fifth cause of action alleges that the “California and New York Defendants aid and abet the invasion of illegal aliens by provision and theft of public funds … for partisan Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 13 of 15 13 unjust enrichment[.]” By its terms, this cause of action states no claim against the Federal Defendants. Even if it could be construed to state a claim against the Federal Defendants, it must be dismissed. As noted above, Plaintiff has previously raised substantially similar claims in at least one other lawsuit heard in this district, which was dismissed with prejudice and affirmed on appeal. See Forjone, 2010 WL 653651, *2 (dismissing claims that “various states have failed to prevent non-citizens from voting in elections” and that “by allowing non-citizens to vote, [plaintiffs’] votes have been effectively diluted.”). He has also unsuccessfully raised similar claims in a lawsuit filed in the United States District Court for the District of Columbia. See Strunk v. United States Dep’t of Commerce, Bureau of the Census, et al., 2010 WL 960428, *1 (dismissing Strunk’s claim that “defendants improperly are counting tourists [i.e., illegal aliens] in the 2010 census,” and as a result, “plaintiff asserts that he is disenfranchised—the strength of his vote is diluted.”). Each of these cases was dismissed in its entirety with prejudice. Moreover, Strunk has failed to allege the essential elements of an unconstitutional vote dilution claim, as he has failed to allege that his political party has been shut-out of the political process “as a whole.” See Davis v. Bandemer, 478 U.S. 109, 132, (1986); Fund for Accurate & Informed Representation, Inc. v. Weprin, 796 F. Supp. 662, 668–69 (N.D.N.Y.), aff’d, 506 U.S. 1017 (1992). As such, Plaintiff’s fifth cause of action fails as a matter of law. 6. Dilution and Diminution of Vote Property Strunk’s sixth cause of action alleges a conspiracy among the defendants to use public funds “in the enticement for the invasion of illegal aliens to dilute and disproportionate take vote property using illegal aliens to disproportionately dilute intra and interstate representation.” (Dkt. #1, ¶ 96). While this cause of action is unintelligible, to the extent that Plaintiff intends this cause of action to raise a gerrymandering claim, it fails for the same reasons that the fifth Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 14 of 15 14 cause of action fails as a matter of law – i.e., that he has failed to allege the essential elements of such a cause of action. To prevail on such a claim, plaintiff would have to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group. See Davis v. Bandemer, 478 U.S. 109, 127 (1986). Plaintiff has not alleged any facts that could support such a claim here. 7. Insurrection Using Illegal Aliens Against the United States Strunk’s final cause of action alleges that the Defendants “aid and abet the invasion of illegal aliens by provision and theft of public funds in the enticement for the invasion of illegal aliens to are [sic] engaged in insurrection against the Posterity of the United States.” (Dkt. #1, ¶ 102). This cause of action fails for the simple reason that there is no civil cause of action for “insurrection” under the law. Accordingly, Plaintiff’s seventh cause of action must be dismissed. CONCLUSION For all the foregoing reasons, the Federal Defendants respectfully submit that Plaintiff’s Complaint should be dismissed in its entirety, with prejudice, and that the Court should grant such other and further relief it deems just and proper. Dated: February 24, 2017 RICHARD S. HARTUNIAN United States Attorney Northern District of New York By: /s/John D. Hoggan, Jr. JOHN D. HOGGAN, JR. Assistant United States Attorney Bar Roll No. 511254 James T. Foley U.S. Courthouse 445 Broadway, Room 218 Albany, NY 12207 Telephone: (518) 431-0247 Facsimile: (518) 431-0249 john.hoggan@usdoj.gov Case 1:16-cv-01496-BKS-DJS Document 26-1 Filed 02/24/17 Page 15 of 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ CHRISTOPHER EARL STRUNK, Plaintiff(s), v. THE STATE OF CALIFORNIA ET AL., Defendant(s). ______________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 1:16-CV-1496 (BKS/DJS) CERTIFICATE OF SERVICE I hereby certify that on February 24, 2017, I served the foregoing Federal Defendants’ Memorandum of Law in Support of Motion to Dismiss Petition and Complaint, by causing it to be mailed via certified mail to the following non-CM/ECF participant: Christopher Earl Strunk 141 Harris Avenue Lake Luzerne, NY 12846 RICHARD S. HARTUNIAN United States Attorney BY: John D. Hoggan, Jr. John D. Hoggan, Jr. Assistant U.S. Attorney Bar Roll No. 511254 Case 1:16-cv-01496-BKS-DJS Document 26-2 Filed 02/24/17 Page 1 of 1