Saleh v. United States, Saleh v. USCIS

580 F. App'x 22

• Court: Court of Appeals for the Second Circuit
• Decided: October 8, 2014
• Docket: 13-3955, 13-4266
• Status: Unpublished

Opinion

SUMMARY ORDER

Appellant Tarek Youssef Hassan Saleh, proceeding pro se, appeals from a final judgment or order in each of these cases. In the first case, docket no. 12 Civ. 4598 in the district court and docket no. 13-3955 in this Court (“Saleh II”), the district court dismissed plaintiffs claims by judgment filed September 30, 2013. In a memorandum decision and order dated September 27, 2013, the district court reasoned that the plaintiffs action failed to state a claim and was barred by res judicata. In the second case, docket no. 13 Civ. 7234 in the district court and docket no. 13-4266 in this Court (“Saleh III”), the district court sua sponte dismissed plaintiffs request for a writ of mandamus by memorandum decision and order filed October 25, 2013. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

1. Saleh II

We review dismissals pursuant to Rules 12(b)(6) de novo. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). We review de novo the application of the doctrine of res judicata. Joseph v. Athanasopoulos, 648 F.3d 58, 61 (2d Cir.2011).

An independent review of the record and relevant case law reveals no error by the district court in its grant of defendants’ motion to dismiss. The district court determined that Saleh’s allegations of constitutional violations were barred by res judicata because the same claims, against the same parties, were dismissed on the merits pursuant to an order issued in an earlier case, which was affirmed by this Court in Saleh v. Holder, 470 Fed. Appx. 43 (2d Cir. May 22, 2012). The district court also dismissed Saleh’s tort claims under the Federal Tort Claims Act for failure to state a claim upon which relief may be granted. We affirm substantially for the reasons set forth by the district court in its thorough and well-reasoned order.

2. Saleh III

A district court has the inherent authority to dismiss an action as frivolous, regardless of whether the plaintiff has been granted leave to proceed informa pauper-is. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir.2000). An action is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989), abrogated on other grounds by Twombly, 550 U.S. 544, 127 S.Ct. 1955. While we have not decided whether to apply a de novo review or an abuse of discretion standard to a district court’s sua sponte dismissal of a complaint pursuant to its inherent authority, we conclude that the district court’s decision “easily passes muster under the more rigorous de novo review.” Fitzgerald, 221 F.3d at 364 n. 2,

The district court dismissed Saleh’s request for a writ of mandamus because the claim lacked any basis in law or fact and was duplicative of a previous action filed by Saleh. We affirm substantially for the reasons set forth by the district court in its order.

We have considered Saleh’s remaining arguments and conclude they are without merit. For the foregoing reasons, we AFFIRM the judgment and order of the district court.