13-3955, 13-4266
Saleh v. United States, Saleh v. USCIS, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 8th day of October, two thousand fourteen.
PRESENT: PIERRE N. LEVAL,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
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TAREK YOUSSEF HASSAN SALEH,
Plaintiff-Appellant,
v. 13-3955
UNITED STATES OF AMERICA, c/o Attorney
General, ERIC H. HOLDER, JR., Attorney General
of the United States, JANET NAPOLITANO,
Secretary of the Department of Homeland Security,
ROBERT MUELLER, Director of Federal Bureau of
Investigation, ANDREA QUARANTILLO, District
Director of New York District of the United States
Citizenship and Immigration Services, PHILIP A.
SWABSIN, Agent of FBI, JOSEPH M. DEMAREST,
Assistant Director in Charge (ADIC) of the FBI's
New York Division, MAHMOUD ELRAMMAL,
Informant of FBI, Federal Bureau of Investigation's
New York Division, FEDERAL BUREAU OF
INVESTIGATION, NEW YORK DISTRICT OF THE
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, UNITED STATES
CITIZENSHIP & IMMIGRATION SERVICES,
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, UNITED STATES DEPARTMENT OF
JUSTICE, CAROL KALINOWSKI, District
Adjudication Officer, MARSHA TERRY,
District Adjudication Officer, JOHN DOES 1
through 3,
Defendants-Appellees.
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TAREK YOUSSEF HASSAN SALEH,
Plaintiff-Appellant,
v. 13-4266
UNITED STATES CITIZENSHIP & IMMIGRATION
SERVICES, DEPARTMENT OF HOMELAND
SECURITY, HON. ERIC H. HOLDER, JR., United
States Attorney General,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: Tarek Youssef Hassan Saleh, pro se, Brooklyn,
New York.
FOR DEFENDANTS-APPELLEES: BRANDON H. COWART (Emily E. Daughtry,
on the brief), Assistant United States Attorney,
for Preet Bharara, United States Attorney for
the Southern District of New York, New York,
New York.
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Appeals from the United States District Court for the Southern District of
New York (Forrest, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are AFFIRMED.
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 plaintiff's claims by judgment filed September 30, 2013. In a memorandum
decision and order dated September 27, 2013, the district court reasoned that the
plaintiff's 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 plaintiff's 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 (2007). We review de novo the
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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 F. App'x 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 in forma
pauperis. 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 (1989), abrogated on other grounds by Twombly, 550
U.S. 544. 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
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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.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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