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Endicott v. Perez

United States District Court, D. Nebraska

September 30, 2019

INS "PEREZ", Immigration & Naturalization Service Officer; F. GERARD HEINAUER, District Director; and U.S. CUSTOMS IMMIGRATION SERVICES, Defendants.


          Richard G. Kopf Senior United States District Judge

         Plaintiff filed a Complaint on November 28, 2018. (Filing No. 1.)[1] He has been given leave to proceed in forma pauperis. (Filing No. 11.) The court now conducts an initial review of Plaintiff’s Complaint to determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and 1915A.


         Plaintiff brings this action against U.S. Customs Immigration Services (“USCIS”), Immigration Naturalization Service (“INS”), INS Officer Perez, and USCIS District Director F. Gerard Heinauer all in their individual and official capacities. Liberally construed, Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983, 1981, 1985(3), and 1986, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), alleging violations of his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments, abuse of process, interference with contract rights, various tort claims, and negligence and gross negligence claims including breach of duty, breach of investigation, “negligent/erroneous citizenship determination, ” and “delay[ed] delivery of U.S. Oath, Ceremony, & Citizenship.” (Filing No. 1 at CM/ECF pp. 3-4.)

         In his Complaint, Plaintiff alleges the following under “Statement of Claim”:

• On August 8, 2005, [he] successfully passed & completed [his] first initial U.S. naturalization examination which is the first initial interview! It[’]s a specific event & not a process.
• INS Perez committed negligence, breach of duty & investigation, not only delayed but prevented & hindered Plaintiff from being granted the U.S. Oath, U.S. Ceremony, U.S. Certificate & U.S. Citizenship.
• District Director F. Gerard Heinauer negligently forgets to fill in or write the date on notice.

(Filing No. 1 at CM/ECF p. 5 (internal quotation marks omitted).) No. further factual allegations are contained within the Complaint, but Plaintiff did file two letters (filing nos. 3 & 8) and what the court construes as a motion to expedite judgment (filing no. 13) in which he provides additional factual background. The court will consider these materials as supplemental to the Complaint. See NECivR 15.1(b).

         In his motion, Plaintiff alleges his

Dad is a natural born U.S. Citizen & 21 year U.S. Special Forces Air Force Veteran having retired from the U.S. STRATCOM OFFUTT AIR FORCE BASE back in the early 80s.... Plaintiff was under his Dad’s legal care & custody since the age of 1 yr. old, was admitted into the U.S., when he was a 2 yr. old & in 1975 at the age of 5, the Plaintiff is legally adopted on a U.S. SOVEREIGN SOIL ON A U.S. BASE FORT KENT in the STATE OF MAINE. Plaintiff has lived in Nebraska for like 40 years, he is 48 yrs. old today. His mother was also a FULL STATUS PERMANENT LEGAL RESIDENT & never did Naturalize[] which does not make the Plaintiff eligible of AUTOMATIC CITIZENSHIP.

(Filing No. 13 at CM/ECF p. 9 (internal quotation marks omitted; capitalization in original).)

         Plaintiffs motion also references “Exhibit A-2 & A-3 in regards to Plaintiffs N-335 Form and Attachment.” (Id. at CM/ECF p. 11 (punctuation corrected).) The exhibits to which Plaintiff refers were materials that Plaintiff submitted to the court prior to filing his Complaint and which were returned to him through the court’s pro se correspondence procedure in No. 18PS3000 because the materials were not in the form required by Federal Rule of Civil Procedure 10 or the court’s local rules and because Plaintiff did not have a case pending. (Filing No. 64, No. 18PS3000; see also Filing No. 74, No. 18PS3000.) The exhibits submitted by Plaintiff consist of an I-797C Notice of Action Form notifying Plaintiff to appear for a Naturalization Initial Interview, his N-652 Naturalization Interview Results, an N-335 Form and Attachment, and an April 19, 2018 Warning for Failure to Depart. (Filing No. 64 at CM/ECF pp. 20-26, No. 18PS3000.) The court takes judicial notice of its own records. See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (court may take judicial notice of judicial opinions and public records); Federal Rule of Evidence 201 (providing for judicial notice of adjudicative facts).

         The exhibits indicate Plaintiff submitted a N-400 Application for Naturalization at some time prior to February 14, 2005, he was interviewed by USCIS officer John S. Perez on August 8, 2005, he passed the English and U.S. history and government tests, and that he was informed that “[a] decision cannot yet be made about [his] application” and he was required to, among other things, “[c]ome to any scheduled interview [and] [s]ubmit all requested documents.” (Filing No. 64 at CM/ECF pp. 21, 25, No. 18PS3000.) An undated Form N-335 addressed to Plaintiff and signed by Defendant Heinauer states, “On August 8, 2005, you appeared for an examination of your application for naturalization . . . . Pursuant to the investigation and examination of your application it is determined that you are ineligible for naturalization for the following reason(s): See Attachment(s).” (Id. at CM/ECF p. 22.) The Attachment to the Form N-335 states that Plaintiff’s application for naturalization was denied for lack of prosecution in accordance with 8 C.F.R. 335.7, explaining:

On August 8, 2005 you were instructed by the service to submit Police arrest records and certified court documents for all of your arrests as well your 1551 Alien Registration card and 2 new photographs of yourself. The Service gave you until September 7, 2005 to submit these documents, as of today the requested information still has not been received in this office. Therefore your N-400 Application ...

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