Clervrain v. Sessions et al

Filing 25

MEMORANDUM AND ORDER: denying 17 Motion for Extension of Time to File, 19 Motion for Order, 20 , Motion for Order & 21 Motion for Order. Plaintiff's complaint is DISMISSED for failure to state a claim upon which relief may be granted. Signed by U.S. District Senior Judge Sam A. Crow on 10/5/18. Mailed to pro se party Manetirony Clervrain by regular mail. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANETIRONY CLERVRAIN,
Plaintiff,
v.

CASE NO. 18-3039-SAC

JEFF SESSIONS, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is an action filed pursuant to 8 U.S.C. § 1421(c) challenging the determination
of the U.S. Citizenship and Immigration Services (USCIS) to deny Mr. Clervrain’s naturalization
application. By order dated May 16, 2018, the Court directed Plaintiff to show cause why his
complaint should not be dismissed for failure to state a claim upon which relief may be granted.
The Court found that Plaintiff’s complaint was subject to dismissal because it was untimely and
because Plaintiff’s failure to exhaust his administrative remedies deprived the Court of jurisdiction
to review the denial of his naturalization application. Before the Court is Plaintiff’s response to
the show cause order (ECF Doc. 18). Also before the Court are four motions filed by Plaintiff.
In his 36-page response, Plaintiff makes numerous arguments, many of which are not
relevant to this action.1 For example, he argues he has been subject to “apartheid” in the federal
prison system (ECF Doc. 18 at 6), and the Bureau of Prisons has unfairly classified him (id. at 19).

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Plaintiff has approximately 30 cases pending in federal courts across the country.

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Plaintiff also makes arguments that are not responsive to the order to show cause, i.e., he was part
of a group of “Africans” denied citizenship because of the “Obama presidency” (id. at 3), the
purpose of denying his naturalization application was to exclude “Africans” from voting thus
resulting in a violation of the Voting Rights Act (id.), he has been discriminated against by USCIS
on the basis of race or national origin (id. at 8), and he wants to be the class representative for all
Africans denied citizenship due to traffic violations since 2007 through the Obama presidency (id.
at 34). Essentially, Plaintiff appears to be arguing he is of “good moral character” as required by
the statute (id. at 7), and any finding otherwise is pretextual or based on impermissible grounds.
However, the Court cannot reach the merits of Mr. Clervrain’s claim because he failed to
meet the threshold requirements of filing his complaint within the limitation period and exhausting
his administrative remedies, as explained in the order to show cause. In the midst of the irrelevant
and nonresponsive arguments, Plaintiff does attempt to address the untimeliness of his complaint
and his failure to exhaust his administrative remedies. He argues the Court should equitably toll
the limitation period and excuse his failure to exhaust because his attorney was ineffective, he was
transferred several times between federal facilities, he is actually innocent, and he is not
represented by an attorney.
“Equitable tolling is a rare remedy to be applied in unusual circumstances.” Wallace v.
Kato, 549 U.S. 384, 396 (2007).

The litigant seeking equitable tolling has the burden of

establishing that he has been diligently pursuing his rights and that some extraordinary
circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Plaintiff has not
met that burden. Pro se status and ignorance of the law do not warrant equitable tolling. Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000). Attorney malpractice may in some instances support
the application of equitable tolling, but Plaintiff has not adequately described what his attorney

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allegedly did or did not do. Further, Plaintiff has not demonstrated that he acted diligently in
pursuing his rights. Finally, while actual innocence may be a ground for overcoming the habeas
corpus statute of limitations (see McQuiggin v. Perkins, 569 U.S. 383, 392 (2013)), it is not
relevant here.
Even if the Court found Plaintiff qualified for equitable tolling thus excusing his failure to
file this action within the limitation period, the Court cannot excuse his failure to exhaust his
administrative remedies.

“Section 1421(c), authorizing de novo judicial review of the denial of

an application to be naturalized, requires the exhaustion of administrative remedies prior to seeking
that relief.” Escaler v. U.S. Citizenship & Immigration Serv., 582 F.3d 288, 291 (2d Cir. 2009).
This requirement is “mandatory, and courts are not free to dispense with [it].” Id. This Court does
not have jurisdiction to review the denial of Plaintiff’s application for naturalization because he
failed to exhaust his administrative remedies, and Plaintiff’s complaint must be dismissed.
Because Plaintiff’s complaint was filed out of time and because he failed to exhaust his
administrative remedies prior to filing as required by 8 U.S.C. § 1421(c), Plaintiff’s complaint fails
to state a claim upon which relief may be granted and is dismissed pursuant to 28 U.S.C. § 1915(g)
and 28 U.S.C. § 1915A(b)(1). See Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir. 2011);
Smith v. Cowman, 208 F. App’x 687, 689 (10th Cir. 2006).
Plaintiff has the following motions pending: Motion for Extension of Time and for Good
Cause (ECF Doc. 17), Motion to Convene a Three Judge Tribunal (ECF Doc. 19), Motion for
Judicial Panel for Multidistrict Litigation (ECF Doc. 20), and Motion for Notice and
Circumstances (ECF Doc. 21). Because the Court finds this action is subject to dismissal, all
pending motions are denied as moot.

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IT IS THEREFORE ORDERED that Plaintiff’s complaint is DISMISSED for failure to
state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Extension of Time and for Good
Cause (ECF Doc. 17), Motion to Convene a Three Judge Tribunal (ECF Doc. 19), Motion for
Judicial Panel for Multidistrict Litigation (ECF Doc. 20), and Motion for Notice and
Circumstances (ECF Doc. 21) are DENIED.
IT IS SO ORDERED.
DATED: This 5th day of October, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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