Slone v. United States

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l|n tbe @nite! $.tafts [,ourt of fpDtrsl @lsims

No. l4-408C

(Filed: June 4,2014)

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WILLIAM D. SLONE.

JUN -4 2014

Plaintiff,

U.S. COURTOF

FEDERALCI-AIIfiI

THE TINITED STATES,

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Defendant. *

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OPINION AND ORDER

On May 6,2014, plaintiffin the above-captioned case, appearing pgq se, filed a complaint

and an application to proceed in forma pauperis. Plaintiff, who is cunently incarcerated in Pine

West Liberty, Kentucky, contends that he has suffered "unjust conviction and imprisonment,"

Compl. 1, and that he is entitled to "$200,000 plus cost[s]" in damages, id. at 7. He challenges

his alleged "transfer of custody" from Kentucky state jurisdiction to federal jurisdiction. Id. at 2.

He also contends that a separate case that he filed pursuant to 42 U.S.C. $ 1983 was inconectly

"recharacterized" as two separate petitions for a writ ofhabeas corpus, "without notice" to him,

id., but that he has still been "deprived . . . ofa fair habeas corpus," id. at 5. Further, he states

that his due process rights under the Fourteenth Amendment to the United States Constitution

("U.S. Constitution"), id. at 2-3, as well as his rights under the Fourth and Sixth Amendments,

have been violated, id. at 5. He also argues that he has been deprived ofhis rights pursuant to

the Constitution of the Commonwealth of Kentucky. Id. This court lacks jurisdiction to

entertain plaintiff s claims and must therefore dismiss his complaint.

Whether the court has jurisdiction to decide the merits of a case is a threshold matter.

See Steel Co. v. Citizens for a Better Env't,523 U.S.83,94-95 (1998). "Without jurisdiction the

court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

ceases to exist, the only function remaining to the court is that of announcing the fact and

dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties or the

court on its own initiative may challenge the existence of subject matter jurisdiction at any time.

Folden v. United states,379 F .3d 1344, 1354 (Fed. Cir. 2004).

Further, the ability ofthe United States Court of Federal Claims ("Court ofFederal

Claims") to entertain suits against the United States is limited. "The United States, as sovereign,

is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U. S. 584,

586 (1941). The waiver of immunity "cannot be implied but must be unequivocally expressed."

United States v. King, 395 U.S. 1,4 (1969). The Tucker Act, the principal statute governing the

jurisdiction of this court, waives sovereign immunity for claims against the United States not

sounding in tort that are founded upon the United States Constitution, a federal statute or

regulation, or an express or implied contract with the United States. 28 U.S.C. $ 1a91(a)(1)

(2006). However, the Tucker Act is merely ajurisdictional statute and "does not create any

substantive right enforceable against the United States for money damages." United States v.

TesLan,424 U.S.392,398 (1976). The substantive right must appear in another source of law,

such as a "money-mandating constitutional provision, statute or regulation that has been violated,

or an express or implied contract with the United States." Loveladies Harbor. Inc. v. United

States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).

In this case, plaintiffdoes not allege any claims based on a contract with the United

States or a money-mandating constitutional provision, federal statute, or federal regulation. He

challenges his alleged transfer ofcustody from state to federal authorities, but the Court of

Federal Claims lacks jurisdiction to entertain criminal matters. See Joshua v. United States, 17

F.3d 378,379-80 (Fed. Cir. 1994) (affirming that the Court of Federal Claims had,,,no

jurisdiction to adjudicate any claims whatsoever under the federal criminal code"'); Kania v.

united states,650 F.2d 264,268 (ct.cl. 1981) (noting that "the role ofthejudiciary inthehigh

function of enforcing and policing the criminal law is assigned to the courts of general

jurisdiction and not to this court").

Moreover, to the extent that plaintiff alleges claims pursuant to 42 U.S.C. $ 19g3, the

court lacks jurisdiction to consider claims under that statute. See Jefferson v. United States, 104

Fed. Cl. 81, 89 (2012) ("[T]he court does not have subject matter jurisdiction over actions arising

under sections of the civil Rights Acts, including 42 u.s.c. g 19g3, g 1985, and l9s8 (2006) .

$

. . ."); Marlin v. United Srates, 63 Fed. CL.475,476 (2005) (,,tTlhe Court does noi huue

jurisdiction to consider civil rights claims brought pursuant to 42 u.S.c.

$$ 1991, 19g3, or 19g5

because jurisdiction over claims arising under the Civil Rights Act resides exclusively in the

district courts."); Blassineame v. United srates, 33 Fed. cl. 504, 505 (1995) (,,sectio; 19g3 is

not a jurisdiction-granting statute. District courts are given jurisdiction to hear claims for

damages for violation of that provision. . . . Such an action cannot be sustained here, however,

because this court has not been given an equivalent jurisdiction."), affd, 73 F.3d379 (Fed. cir.

1995). The court also lacks the authority to review a district court's decision adjudging a habeas

petition; rather, that authority lies with the federal courts ofappeal. see generaliv d.s]Ba.r"orp

Morte. co. v. Bonner Mall P'qhip, 513 u.s. 1s,27 (1994) ("congress has p."rrribrd u p.i.ury

route, by appeal as ofright and certiorari, through which parties may seek ielieffrom the legal

consequences ofjudicial judgments. To allow a party who steps off the statutory path to employ

. . . [a] collateral attack on thejudgment would-quite apart from any considerations of faimess

to

the parties-disturb the orderly operation of the federal judicial system."); Joshua v. united

states, 17 F.3d 378, 380 (Fed. cir. 1994) ("[T]he court ofF.derul cluio's d*. not ha*

jurisdiction to review the decisions ofdistrict courts . . . relating to proceedings

before those

courts.").

Further, plaintiff contends that his rights under Kentucky's constitution have been

deprived, but the Tucker Act only provides forjurisdiction for claims arising under the United

states constitution, not state constitutions. See 28 U.S.c. 1491. plaintiff does assert

$

violations of some amendments to the U.s. constitution, but because of the nature ofthese

claims, the court lacks jurisdiction to hear them. Specifically, the Fourth Amendment's Search

and Seizure Clause does not mandate the payment of money damages, and thus cannot provide a

basis for jurisdiction in this court. See Brown, 105 F.3d at 623; cf. Crocker v. United States, 125

F .3d 1475, 1476 (Fed. Cir. 1997) ("The Court of Federal Claims . . . does not have jurisdiction to

hear . . . due process or seizure claims under the Fifth Amendment to the United States

Constitution."). The court also does not have jurisdiction to hear plaintiff s Sixth Amendment

claims. Duore v. United States,229 Ct. CI.706,706 (1981) (per curiam) ("[T]he fourth and

sixth amendments do not in themselves obligate the United States to pay money damages; and,

therefore, we have no jurisdiction over such claims."). Additionally, because the due process

clause of the Fourteenth Amendment is not money-mandating, the court lacks jurisdiction over

such claims. See LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) ("[T]he Due

Process Clauses ofthe Fifth and Fourteenth Amendments [and] the Equal Protection Clause of

the Fourteenth Amendment . . . [are not] a sufficient basis forjurisdiction because they do not

mandate payment of money by the govemment."); Mullenberg v. United States , 857 F .2d 770,

773 (Fed. Cir. 1988) (holding that the Due Process and Equal Protection Clauses "do not trigger

Tucker Actjurisdiction in the courts"); Pleasant-Bey v. United States, 99 Fed. C|.363,367

(2011) ("[T]his court does not have j urisdiction over claims based on either the Thirteenth

Amendment or Fourteenth Amendment because neither mandates the payment of money

damages.").

Finally, plaintifffiled, concunent with his complaint, an application to proceed in forma

pauperis. Pursuant to 28 U.S.C. $ 1915, courts of the United States are permitted to waive filing

fees and security under certain circumstances.' Sgg 28 U.S.C. $ 1915(a)(1); see also Haves v.

United States, 71 Fed. Cl. 366,366-67 (2006) (concluding that 28 U.S.C. g 1915(a)(1) applies ro

both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma pauperis must

submit an affidavit that lists all of their assets, declares that they are unable to pay the fees or .

give the security, and states the nature of the action and their beliefthat they are entitled to

redress. 28 u.s.c. $ 1915(a)(l). Further, prisoners must hle "a certified copy of the trust fund

account statement (or institutional equivalent) for the prisoner for the 6-month period

immediately preceding the filing ofthe complaint . . . obtained from the appropriate official of

each prison which the prisoner is or was confined." Id. g 1915(a)(2).

Plaintiffhas substantially satisfied the requirements set forth in section l9l5(a). The

court therefore grants plaintiffs application to proceed in forma pauperis and waives plaintiff s

prepayment of the filing fee. Notwithstanding the court's waiver, prisoners seeking to proceed in

fgrma pauperis are required to pay, over time, the filing fee in full. Id. $ 1915(b). Thus, plaintiff

shall be assessed, as a partial payment of the court's filing fee, an initial sum of twenty percent of

' while the court of Federal claims is not generally considered to be a "court of the

United States" within the meaning of title twenty-eight of the United States code, the court has

jurisdiction to grant or deny applications to proceed in forma pauperis. see 2g u.s.c. 2503(d)

$

(deeming the Court ofFederal Claims to be "a court of the United States" for the purpoies of28

u.s.c. $ 1915); see also Matthews v. United states,72 Fed. c\.274,277 -78 (2006) (recognizing

that Congress enacted the Court ofFederal Claims Technical and Procedural Improvements Act

of 1992, authorizing the court to, among other things, adjudicate applications to proceed in forma

pauperis pursuant to 28 U.S.C. g 1915).

the greater of(l) the average monthly deposits into his accolrnt, or (2) the average monthly

balance in his account for the six-month period immediately preceding the filing of his

complaint. Id. $ 1915(bxl). Thereafter, plaintiff shall be required to make monthly payments of

twenty percent ofthe preceding month's income credited to his account. Id. $ 1915(b)(2). The

agency having custody of plaintiff shall forward payments from plaintiff s account to the Clerk

ofthe Court ofFederal Claims each time the account balance exceeds $10 and until such time as

the filing fee is paid in full. Id.

In sum, the court GRANTS plaintiffs application to proceed in forma pauperis and

DISMISSES plaintiff s complaint for lack ofjurisdiction. The clerk is directed to enter

judgment accordingly.

IT IS SO ORDERED.