Fabricant v. Federal Election Commission

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Danny Fabricant, ) ) Plaintiff, ) ) v. ) Civil Action No. 20-765 (UNA) ) Federal Election Commission et al., ) ) Defendants. )

MEMORANDUM OPINION

This matter, brought pro se, is before the Court on review of the complaint and plaintiff’s

application for leave to proceed in forma pauperis. The Court will grant the in forma pauperis

application and dismiss the complaint pursuant to 28 U.S.C. § 1915A (requiring immediate

dismissal of a prisoner’s action upon a determination that the complaint fails to state a claim upon

which relief may be granted ).

A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiff is a federal prisoner incarcerated at the

Federal Correctional Center in Lompoc, California. He purports to challenge the constitutionality

of 52 U.S.C. § 30101(2)(A)(B), defining “candidate” under the Federal Election Campaign Act

(“FECA”), but he has not alleged a constitutional defect. See Compl. at 1. Instead, plaintiff alleges

that defendant Federal Election Commission (“FEC”) relied on the challenged provision to

disqualify him as a 2020 U.S. House of Representatives Republican candidate for the 30th

Congressional District of California, see Compl. at 1-3, which alone does not raise a constitutional

question. In addition, plaintiff has sued California Secretary of State Alex Padilla for allegedly

1 failing to list his name on the “March 3, 2020 [California] Primary Election ballot” since “his name

was not on the list provided/transmitted by the FEC.” Compl. at 2. Plaintiff alleges that his name

will not appear “on the [California] November 3, 2020 general election ballot without an Order

from this Court.” Id. The controlling law provides:

The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act. The district court immediately shall certify all questions of constitutionality of this Act to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

52 U.S.C. § 30110 (emphasis added). “Under § 30110, district courts do not certify frivolous [or

wholly insubstantial] constitutional questions to the en banc court of appeals.” Holmes v. F.E.C.,

823 F.3d 69, 71 (D.C. Cir. 2016) (internal quotation marks and citations omitted).

Although plaintiff claims to be a “political candidate,” Compl. at 1, he also is an

incarcerated felon. See United States v. Fabricant, No. 03-cr-01257-RSWL-1, 2015 WL

12857301, at *1 (C.D. Cal. Nov. 18, 2015) (“Defendant Danny Joseph Fabricant . . . is currently

serving a life sentence after a jury convicted him of five counts of conspiracy to distribute,

distribution of, and possession with the intent to distribute methamphetamine[.]”) And “California

prohibits felons in prison or on parole from voting.” Legal Servs. for Prisoners with Children v.

Bowen, 170 Cal. App. 4th 447, 452, 87 Cal. Rptr. 3d 869, 871 (2009), quoting Cal. Const., art. II,

§ 4; Cal. Elections Code section 2101. So, plaintiff can obtain no relief under FECA. A separate

order of dismissal accompanies this Memorandum Opinion.

_________s/_____________ AMY BERMAN JACKSON Date: April 21, 2020 United States District Judge