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Clervrain v. Sessions

United States District Court, D. Kansas

May 16, 2018

MANETIRONY CLERVRAIN, Plaintiff,
v.
JEFF SESSIONS, Defendants.

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          SAM A. CROW U.S. SENIOR DISTRICT JUDGE.

         Plaintiff Manetirony Clervrain, a federal prisoner currently being held at Moshannon Valley Correctional Institution in Philipsburg, Pennsylvania, brings this pro se action pursuant to 8 U.S.C. § 1421(c).[1] For the reasons discussed below, Plaintiff is ordered to show cause why his complaint should not be dismissed.

         I. Nature of the Matter before the Court

         After filing a 60-page document titled “Memorandum of Law in Support of the Plaintiff's Federal Declaratory Judgment Act, Pursuant to 28 U.S.C. § 2201, ” the Court issued Plaintiff a Notice of Deficiency (Doc. 4) ordering him to file a complaint on court forms as required by local rule. Plaintiff complied and refiled his complaint (Doc. 10). Plaintiff's initial filing raised numerous issues and named numerous defendants. However, he narrowed the issues significantly in his re-filed complaint. The re-filed complaint, upon which the Court proceeds, challenges the determination of the U.S. Citizenship and Immigration Services (USCIS) to deny Mr. Clervrain's naturalization application and names one defendant, U.S. Attorney General Jeff Sessions.

         According to the complaint and attachments (Doc. 10), Plaintiff, a Haitian national, filed an application for naturalization on August 3, 2007, while living in Florida, and appeared for an examination of his application on December 9, 2008. After investigation and examination of his application, USCIS issued a decision on September 14, 2009, denying naturalization. The stated reason was “poor moral character.” USCIS based its decision on two convictions in Miami for Driving While License Suspended - Habitual Offender (3rd degree felony). The decision received by Plaintiff stated, “If you desire to request a review hearing on this decision pursuant to Section 336(a) of the Act, you must file a request for a hearing within 30 Days of the date of this notice. If no request for hearing is filed within the time allowed, this decision is final.” Doc. 10-1 at 1 (emphasis in original).

         Plaintiff filed a request for hearing on January 6, 2017, more than seven (7) years after the denial.[2] At the time, it appears Mr. Clervrain resided in a federal correctional institution in Mississippi. USCIS rejected the request on August 23, 2017, as improperly filed and found it did not meet the requirements for a motion to reopen or reconsider. Doc. 10-1 at 5. Plaintiff proceeded to file this action while residing in the Reeves County Detention Center in Pecos, Texas.

         In his complaint, Plaintiff alleges the actions of USCIS were discriminatory and denied him due process. He requests trebled compensatory, exemplary, punitive, and nominal damages; attorney fees and costs; and retroactive declaratory and injunctive relief.

         Plaintiff has also filed a motion for injunctive relief (Doc. 11), a third motion for leave to proceed in forma pauperis (Doc. 13), a motion for marshal to effectuate service (Doc. 14), and a motion for reconsideration of the Court's order granting him leave to proceed in forma pauperis (Doc. 15).

         II. Statutory Screening of Prisoner Complaints

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)- (2).

         A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007).

         A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint's “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570.

         The Tenth Circuit has pointed out that the Supreme Court's decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.'” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true, ” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, ” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S.Ct. at 1974).

         III. Discussion

         Plaintiff's complaint is subject to dismissal because it is untimely and because he failed to exhaust his administrative remedies, thus depriving this Court of jurisdiction.[3]

         A. Plaintiff's claim for review of USCIS's denial is untimely.

         28 U.S.C. § 2401(a) provides:

Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim ...

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