Adesanya v. United States

Filing 40

ORDER REVOKING Plaintiff's in forma pauperis status in response to 39 USCA Referral. Signed by Judge Kandis A. Westmore on 11/6/2015. (kawlc1, COURT STAFF) (Filed on 11/6/2015)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ADEMOLA MICHAEL ADESANYA,

Case No. 15-cv-01379-KAW

Plaintiff,
8

ORDER REVOKING IN FORMA
PAUPERIS STATUS

v.
9
10

UNITED STATES, et al.,

Re: Dkt. No. 39

Defendants.

United States District Court
Northern District of California

11
12
On March 25, 2015, pro se plaintiff Ademola Adesanya, a Nigerian citizen and resident,

13
14

commenced this action against the United States, alleging that the provision in 8 U.S.C. §

15

1229a(b)(7) requiring that he wait ten years before obtaining relief from his removal from the

16

United States violated his constitutional rights.
On May 21, 2015, the Court dismissed Plaintiff’s initial complaint with leave to amend on

17
18

the grounds that Plaintiff lacked standing to litigate his case. (Dkt. No. 20.) On June 16, 2015,

19

Plaintiff filed a first amended complaint, in which he added a “TORTS” cause of action against

20

both the United States and Kern County.
On October 14, 2015, the Court dismissed Plaintiff’s first amended complaint without

21
22

leave to amend and denied his motion for leave to file a second amended complaint. (Dkt. No. 35

23

at 5.)

24

On October 15, 2015, Plaintiff appealed the dismissal order and denial of the motion for

25

leave to file a second amended complaint to the Ninth Circuit Court of Appeals. On October 19,

26

2015, the Ninth Circuit referred the case back to this Court for the limited purpose of determining

27

whether Plaintiff’s in forma pauperis status should continue for this appeal, or whether the appeal

28

is frivolous or taken in bad faith. See Referral Notice, Adesanya v. United States, No. 12-17064

1

(9th Cir. Oct. 19, 2015), ECF No. 2 (citing 28 U.S.C. § 1915(a)(3); Hooker v. American Airlines,

2

302 F.3d 1091, 1092 (9th Cir. 2002) (revocation of forma pauperis status is appropriate where

3

district court finds the appeal to be frivolous)).

4

The Court dismissed Plaintiff’s first amended complaint without leave to amend on the

5

grounds that Plaintiff lacked standing to challenge the ten year ban because more than ten years

6

had passed since Plaintiff’s deportation, such that he was no longer aggrieved by the statute. (Dkt.

7

No. 35 at 5.) The Court also dismissed Plaintiff’s generalized torts claims as time-barred. Id. at 5-

8

6. Furthermore, the Court noted that this action appeared to be duplicative of Plaintiff’s pending

9

appeal before the Ninth Circuit. Id. at 6; See Unopposed Motion to take Judicial Notice of New
appeal and related case, Adesanya v. Lynch, No. 14-71935 (9th Cir. May 27, 2015), ECF No. 25.

11
United States District Court
Northern District of California

10

Since any amendment would be futile, the Court dismissed the operative complaint without leave

12

to amend, denied the motion for leave to file a second amended complaint, and entered judgment.

13

Plaintiff has repeatedly shown that his complaint is fatally defective, even after he was

14

permitted to amend his complaint. (Dkt. No. 20.) The court now certifies that the appeal is

15

frivolous and REVOKES Plaintiff’s in forma pauperis status on appeal in this action.

16
17

IT IS SO ORDERED.
Dated: November 6, 2015
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

18
19
20
21
22
23
24
25
26
27
28
2