United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO DISMISS OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT
EVANS BARKER, JUDGE
cause is now before the Court on Defendants' Motion to
Dismiss and Alternative Motion for Summary Judgment [Docket
No. 16], filed on October 23, 2015. Plaintiff Tishana Jo
Bhadmus brought her pro se complaint against Defendants in an
attempt to appeal the denial by the United States Citizenship
and Immigration Service (“USCIS”) of her petition
to remove the conditions on the resident status of non-party
Samuel Bhadmus, and to bring other tort claims against USCIS.
For the reasons detailed below, Defendants' Motion to
Dismiss is GRANTED. Having granted Defendants'
request for dismissal, we need not reach their alternative
request for summary judgment; that motion is DENIED
and Procedural Background
Bhadmus, a United States citizen, married non-party Samuel
Bhadmus, who is not a United States citizen, on February 7,
2008 [Docket No. 1-1 at 2]. In 2010, USCIS granted Mr.
Bhadmus conditional permanent resident status based on Ms.
Bhadmus's petition on his behalf
[Id.]. On December 30, 2011, the Bhadmuses filed
with USCIS an I-751 petition to remove the conditions on Mr.
Bhadmus's permanent resident status [Docket No. 17, Ex. 1
at 1.] In connection with the petition, Mr.
Bhadmus was interviewed on November 6, 2012, and December 14,
2012 [Docket No. 1-1 at 2-3]. Ms. Bhadmus was also
interviewed on December 14, 2012 [Id. at 2.]
9, 2013, USCIS sent to Mr. Bhadmus a Notice of Intent to Deny
(“NOID”) the I-751 petition stating: “It is
clear from the evidence contained within your file, or lack
thereof, that your marriage to Tishana Nash was entered into
for the purpose of you procuring admission as an
immigrant.” [Docket No. 17-1 at 2]. Mr. Bhadmus,
through counsel, responded to the NOID on August 6, 2013
[Docket No. 1-1 at 3]. After reviewing the additional
information Mr. Bhadmus's submitted, on November 29,
2013, USCIS formally denied the I-751 petition, terminated
Mr. Bhadmus's conditional permanent resident status, and
informed Mr. Bhadmus that “[i]n accordance with [8
C.F.R. § 216.4(d)(2)], [he] may request review of this
determination in removal proceedings under Section 240 of the
Act.” [Docket No. 1-1 at 4].
December 31, 2013, Mr. Bhadmus was placed in removal
proceedings by issuance of a Notice to Appear in immigration
court, charging him with removability from the United States
under 8 U.S.C. § 1227(a)(1)(D)(i), as an alien whose
conditional permanent resident status was terminated [Docket
Bhadmus's complaint followed. The parties' motions
are now fully briefed and ready for ruling.
Standards of Review
have filed their Motion to Dismiss, pursuant to Federal Rules
of Civil Procedure 12(b)(1) and (6). The Federal Rules of
Civil Procedure authorize dismissal of claims for “lack
of subject matter jurisdiction” and for “failure
to state a claim upon which relief may be granted.”
Fed.R.Civ.P. 12(b)(1) and (6), respectively. Under these
circumstances, “the purpose of a motion to dismiss is
to test the sufficiency of the complaint, not to decide the
merits.” Gibson v. City of Chicago, 910 F.2d
1510, 1520 (7th Cir. 1990) (quoting Triad Assocs. v.
Chicago Hous. Authority, 982 F.2d 583, 586 (7th Cir.
Federal Rules of Civil Procedure command that courts dismiss
any suit over which they lack subject matter
jurisdiction-whether acting on the motion of a party or
sua sponte. See Fed. R. Civ. P. 12(b)(1). In ruling
on a motion to dismiss under Rule 12(b)(1), we “must
accept the complaint's well-pleaded factual allegations
as true and draw reasonable inferences from those allegations
in the plaintiff's favor.” Franzoni v. Hartmax
Corp., 300 F.3d 767, 771 (7th Cir. 2002); Transit
Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.
2001). We may, however, “properly look beyond the
jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether
in fact subject matter jurisdiction exists.” See
Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th
Cir. 1993); Estate of Eiteljorg ex rel. Eiteljorg v.
Eiteljorg, 813 F.Supp.2d 1069, 1074 (S.D. Ind. 2011).
procedural context of Rule 12(b)(6), we must accept as true
all well-pled factual allegations in the complaint and draw
all ensuing inferences in favor of the non-movant. Lake
v. Neal, 585 F.3d 1059, 1060 (7th Cir. 2009).
Nevertheless, the Amended Complaint must “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests, ” and its “[f]actual
allegations [must] raise a right to relief above the
speculative level.” Pisciotta v. Old Nat'l
Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (internal
district courts of the United States are “courts of
limited jurisdiction, ” which “possess only that
power authorized by Constitution and statute.”
Kokkonen v. GuardianLife Ins. Co. of
America,511 U.S. 375, 377 (1994). In light of this
limitation, federal district courts have a constitutional
obligation to scrutinize complaints for jurisdictional
defects, and to dismiss, on their own initiative, suits over
which they lack subject matter jurisdiction. See Joyce v.
Joyce,975 F.2d 379, 386 (7th Cir. 1992). ...