United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
CROW U.S. SENIOR DISTRICT JUDGE.
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). For the reasons discussed below,
Plaintiff is ordered to show cause why his complaint should
not be dismissed.
Nature of the Matter before the Court
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
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).
filed a request for hearing on January 6, 2017, more than
seven (7) years after the denial. 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.
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.
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).
Statutory Screening of Prisoner Complaints
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. §
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).
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.
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).
complaint is subject to dismissal because it is untimely and
because he failed to exhaust his administrative remedies,
thus depriving this Court of jurisdiction.
Plaintiff's claim for review of USCIS's denial is
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