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Tutora v. U.S. Attorney General For Eastern District of Pennsylvania

United States District Court, E.D. Pennsylvania

May 16, 2017

TOLEKSIS BUN TUTORA, Petitioner,
v.
U.S. ATTORNEY GENERAL FOR THE EASTERN DISTRICT OF PENNSYLVANIA, Respondent.

          MEMORANDUM OPINION

          EDWARD G. SMITH, J.

         An 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.

         As 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 relief.

         Concerning 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.

         I. PROCEDURAL HISTORY

         The 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.

         In the 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."[1]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.[2] 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.

         In 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.

         Because 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.

         Instead 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.

         The 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.

         The motion to dismiss is ripe for disposition.

         II. DISCUSSION

         A. Standards of Review

         1. Rule 12(b)(6) Motion to Dismiss

         Rule 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 omitted).

         In 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).

         Thus, 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.'"[3] Id. (quoting Twombly, 550 U.S. at 555).

         The Third Circuit employs a three-step approach to evaluate whether a complaint satisfies the Twombly) 'Iqbal standard:

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 ...

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