Omosule v. INS et al

Filing 4

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff Oluwadayisi Omosule's Complaint be DISMISSED. 2. The Court certify pursuant to 28 U.S.C. 1915(a)(3) that for the foregoing reasons an appeal of an Order adopting this Report and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal in forma pauperis should be denied.3. The case be terminated on the docket of this Court. Objections to R&R due by 4/27/2012. Signed by Magistrate Judge Sharon L Ovington on 4/10/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
OLUWADAYISI OMOSULE,

:
Case No. 3:12cv00101

Plaintiff,

:

v.

:

INS1, et al.,

District Judge Timothy S. Black
Magistrate Judge Sharon L. Ovington

:

Defendants.

:

REPORT AND RECOMMENDATIONS2

Plaintiff Oluwadayisi Omosule brings this case pro se against the Immigration and
Naturalization Service (“INS”), Attorney General Eric Holder, Secretary of Homeland
Security Janet Napolitano, Greene County Domestic Relations Court Magistrate
Kimberly Metzler-Stump, and Greene County Assistant Prosecuting Attorney Elise M.
Brown. (Doc. #1-3).
On April 4, 2012, this Court granted Plaintiff’s Application to Proceed in forma
pauperis under 28 U.S.C. § 1915. Currently, the case is before the Court for a sua sponte
review in order to determine whether Plaintiff’s Complaint, or any portion of it, should be
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Although the Immigration and Naturalization Service is no longer a separate agency, the case
caption should remain the same to maintain docketing continuity. See Grewal v. Ashcroft, et al., 301 F.
Supp. 2d 692, 697 (N.D. Ohio 2004) (“Pursuant to the Homeland Security Act of 2002, Pub. L. No. 107296, 116 Stat. 2135, the Immigration and Naturalization Service ceased to exist as a separate agency
within the Department of Justice, effect 1 March 2003, and its functions were transferred to three new
agencies, all part of the Department of Homeland Security.” (citing 6 U.S.C. §§ 251 and 291)).
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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

dismissed because it is frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B). If the Complaint raises a claim with an
arguable or rational basis in fact or law, it is neither frivolous nor malicious, and it may
not be dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir. 2008); see
Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable
factual basis when its allegations are “fantastic or delusional.” Brand, 526 F.3d at 923
(quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it
presents “indisputably meritless” legal theories – for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly
does not exist. See Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923.
Determining whether a Complaint fails to state a claim upon which relief may be
granted starts by accepting the plaintiff’s allegations as true and construing the Complaint
in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009). “[A] complaint must contain (1) ‘enough facts to state a claim to relief that is
plausible,’ (2) more than a ‘formulaic recitation of a cause of action’s elements,’ and (3)
allegations that suggest a ‘right to relief above a speculative level.’” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 1965, 167 L.Ed.2d 929 (2007)).
“[T]he dismissal standard articulated in Iqbal and Twombly governs dismissals for failure
to state a claim under [28 U.S.C. §§ 1915A and 1915(e)(2)(B)] because the relevant

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statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (internal citations omitted).
Plaintiff alleges that “[o]n Dec. 9th, 2008 [he] was stopped at the border in
Montana by CBP [Customs and Border Patrol]. [And his] Nigerian passport, Green Card,
[and] Driver[’s] License w[ere] taken from [him].” (Doc. #1-3 at 3). Plaintiff states that
he “was able to collect [his] driver[’s] license and social security [card] back about 120
days later.” (Id.). According to Plaintiff, however, the INS has not returned his passport.
(Id.). Without his passport, Plaintiff essentially alleges he cannot renew his driver’s
license. Without his driver’s license, Plaintiff claims to be having difficulty obtaining
medical treatment from hospitals and doctors for his acid-reflux disorder because he is
without “identification and resources to pay for their services.” (Id.). Plaintiff also
alleges that he is facing contempt of court due to his failure to pay child support, but is
unable to find lawful employment and Department of Homeland Security “is telling [him]
that [he] cannot work under the table while still under the removal proceeding.” (Id.).
Plaintiff alleges he “won the case in the removal proceeding at which [time] the INS
(DHS) made a copy of [his] international passport and later appeal[ed] on 4/4/2011.”
(Id.).
As to relief, Plaintiff requests “the Court to order the INS (DHS) to give back [his]
passport. And to also give [him] a letter so that [he] can use that letter at the BMV to
renew [his] driver[’s] license so that [he] can be able to seek medical care and be able to
transport [his] child back and forth and able to transport [himself] to any court when it [is]

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necessary to do so and reduce [his] hardship.” (Id.). In addition, Plaintiff requests “the
Court to order the INS to pay [him] $124,900 so that [he] can pay [his] debts, since [he]
cannot work,” and for “the Court to bring Ms. Elise M. Brown and Ms. Kimberly
Metz[l]er-Stump to Court so that the INS (DHS) can explain to them that [he] cannot
work under the table.” (Id.).
Although Plaintiff’s allegations are not delusional, they fail to reveal the presence
of a claim over which this Court has subject matter jurisdiction. See Wagenknecht v.
United States, 533 F.3d 412, 416 (6th Cir. 2008) (“a district court may sua sponte dismiss
an action when it lacks subject matter jurisdiction.”). Plaintiff appears to be petitioning
this Court for a writ of mandamus, requiring DHS to return his passport to him. “A writ
of mandamus is an extraordinary remedy, and is intended to provide a remedy only if the
plaintiff has exhausted all other avenues of relief and the defendant owes the plaintiff a
clear nondiscretionary duty.” Shewchun v. Meissner, 1996 U.S. App. LEXIS 12443 at *3
(6th Cir. 1996) (citing Willis v. Sullivan, 931 F.2d 390, 395 (6th Cir. 1991)). As Plaintiff
has not shown that he has exhausted his administrative remedies, this Court is without
subject matter jurisdiction in this case. See Omosule v. INS, 1999 U.S. App. LEXIS
28509 at *2-*3 (6th Cir. 1999) (“Upon de novo review, we conclude that the district court
properly dismissed the case for lack of subject matter jurisdiction because Omosule did
not demonstrate that he had exhausted all avenues of relief.”) (internal citations omitted).
Accordingly, Plaintiff’s Complaint must be dismissed pursuant to 28 U.S.C.
§1915(e)(2)(B).

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IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff Oluwadayisi Omosule’s Complaint be DISMISSED;

2.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of an Order adopting this Report and Recommendations
would not be taken in good faith, and consequently, leave for Plaintiff to
appeal in forma pauperis should be denied; and

3.

The case be terminated on the docket of this Court.

April 10, 2012

s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen (17) days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections within fourteen (14) days after being served with a copy
thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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