United States District Court, E.D. Pennsylvania
G. SMITH, J.
inmate in the Philadelphia Prison System has filed an
"expatriation petition" in which he seeks to
renounce his United States citizenship. The respondent has
moved to have the court dismiss the petition because the
petitioner failed to comply with the applicable statute and
administrative procedures insofar as he failed to file a
renunciation request with the appropriate federal agency. The
petitioner responded to the motion by filing two motions in
which he seeks to have the court enter a default judgment
against the respondent.
discussed in more detail below, the court will grant the
motion to dismiss because the petitioner has improperly
attempted to avoid the proper procedure for renouncing
citizenship by filing this action in federal court. Instead
of filing this action, the petitioner could only submit his
renunciation request to the United States Citizenship and
Immigration Services, which was the appropriate federal
agency to consider the petition in the first instance. In
addition, because the petitioner has yet to seek relief with
the appropriate federal agency, he cannot maintain a claim
under the Administrative Procedure Act or seek mandamus
the petitioner's motions for default judgment, the
petitioner has asserted no cognizable basis that would
justify granting those motions in his favor. Therefore, the
court will also deny both motions.
pro se petitioner, Toleksis Biin Tutora
("Tutora"), commenced this action by filing a
purported application to proceed in forma pauperis
and an "Expatriation Petition" that the Clerk of
Court docketed on October 5, 2016. Doc. No. 1. The petition
names the United States Attorney General for the Eastern
District of Pennsylvania as the respondent. Id.
petition, Tutora alleges that he is currently detained in the
Philadelphia Prison System and is "also a probationer of
the Lehigh Adult Parole/Probation
Department."Expatriation Pet. at ECF p. 1. Tutora
asserts that "[t]he lost [sic] of employment, constant
homelessness, variant degrees of cloaking to fit in amongst
other coloreds have become confusing and detrimental to his
success as a collegiate aspirant." Id. at ECF
p. 2. Due to these complaints, Tutora seeks to renounce his
United States' citizenship under 8 U.S.C. § 1481 and
become a citizen of Romania. Id. Tutora wants to
become a citizen of Romania because it has the "deep
roots and culture suitable for his spiritual referum [sic]
and religious needs." Id.
further support of his petition, Tutora avers as follows:
[T]hough [I am] aware that the U.S.S.R. is the political
venue that abounds in the region [around Romania], [I] by no
means seek adversity, but genuine intellectual growth and
comparison that under the F.I.A. compact, sees his
entrepenuarial [sic] growth nothing short of excellence. He
is well aware that linguistic and intellectual exchanges may
at points be at point a slow turn, but is not deterred from
his goal of optimum successes. So his renunciation, pursuant
to Title section 1481 et. seq., is an honorable gesture to
qualm his national homeland and not flag any intelligence
community that may premonition subversity [sic]. The growth
of the world and its bounderies [sic] that are flawed are
potent due to the lack of education, not subversion.
Id. at ECF pp. 2-3.
Tutora did not pay the filing fee for miscellaneous actions
or file a completed motion for leave to proceed in forma
pauperis, the court entered an order on November 2,
2016, which required him to either pay the filing fee or file
a proper application to proceed in forma pauperis.
Order, Doc. No. 2. In response to the court's order,
Tutora filed a "Declaration and Explanation in Support
of Motion to Proceed in Forma Pauperis" that the clerk
of court docketed on November 21, 2016. Doc. No. 3. As this
submission was also insufficient for the court to evaluate
whether to grant Tutora leave to proceed in forma
pauperis, the court entered another order on November
28, 2016, requiring him to either pay the filing fee or
submit a completed in forma pauperis application
with the requisite certified prisoner account statement.
Order, Doc. No. 4.
of reapplying for leave to proceed in forma
pauperis, Tutora paid the filing fee on January 3, 2017.
See Unnumbered Docket Entry Between Doc. Nos. 4 and
5. Shortly thereafter, the court entered an order requiring
the Clerk of Court to serve a copy of the order and the
expatriation petition on the respondent by certified mail.
Order, Doc. No. 5.
respondent moved for an extension of time to file a response
to the petition, which the court granted on January 26, 2017.
Doc. Nos. 6, 7. The respondent then filed the instant motion
to dismiss the petition under Rules 12(b)(1) and (b)(6) of
the Federal Rules of Civil Procedure on February 22, 2017.
Doc. No. 10. Although Tutora did not file a timely response
to the motion to dismiss, he did file two documents that the
clerk of court docketed on March 22, 2017: a "Motion for
Default Judgment" and a "Motion Sustaining Default
Motion." Doc. Nos. 11, 12.
motion to dismiss is ripe for disposition.
Standards of Review
Rule 12(b)(6) Motion to Dismiss
12(b)(6) of the Federal Rules of Civil Procedure allows a
party to move for dismissal of a complaint for failure to
state a claim upon which relief can be granted. Fed. R Civ.
P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests
"the sufficiency of the allegations contained in the
complaint." Kost v. Kozakiewicz, 1 F.3d 176,
183 (3d Cir. 1993) (citation omitted). As the moving party,
"[t]he defendant bears the burden of showing that no
claim has been presented." Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005) (citation
general, a complaint is legally sufficient if it contains
"a short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). "The touchstone of [this] pleading standard is
plausibility." Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012). Although Rule 8(a)(2) does "not
require heightened fact pleading of specifics, " it does
require the recitation of "enough facts to state a claim
to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted).
to survive dismissal, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Id. (quoting Twombly, 550 U.S. at 570).
This "plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Id. (quoting Twombly, 550
U.S. at 570). Thus, "[a] pleading that offers
'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
do.'" Id. (quoting Twombly,
550 U.S. at 555).
Third Circuit employs a three-step approach to evaluate
whether a complaint satisfies the Twombly)
First, the court must "tak[e] note of the elements a
plaintiff must plead to state a claim." Iqbal,
129 S.Ct. at 1947. Second, the court should identify
allegations that, "because they are no more than
conclusions, are not entitled to the assumption of
truth." Id. at 1950. Finally, "where there
are well-pleaded factual allegations, a court should assume
their veracity and then ...