Ealy v. United States

FILED

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No. 14-1218C

Pro Se

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(Filed: April30,2015)

LARRYE. EALY, Tucker Act; 28 U.S.C. g l49l; Subject

Matter Jurisdiction; RCFC l2(b)(1);

Plaintiff, Fourth Amendment; Fifth Amendment

Due Process Clause; Fourteenth

Amendment; Federal Tort Claims Act;

28 U.S.C. $$ 1346, 2671-80; Contract

THE UNITED STATES OF AMEzuCA, Disputes Act;41 U.S.C. g 71Oa@Xl);

Pendent Jurisdiction.

Defendant.

Larry E. Ealy,Tro|wood, Ohio, Plaintiff, pro se.

Melissa M. Devine, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, D.C., for defendant. With her on the briefs

werc Deborah A. Bynum, Assistant Director, and Robert E. Kirschman, Jr.,

Ditector, Joyce R. Branda, Acting Assistant Attorney General.

MEMORANDUM OPINION AND ORDER

Kaplan, Judge.

Plaintiff, Lany E. Ealy ofTrotwood, Ohio, appearing pro se, filed a complaint

contending that, among other things, he is entitled to money damages for injuries he suffered

following a beating by six police officers employed by the city of Dayton, Ohio. The United

States (hereinafter "the govemment") has moved to dismiss the complaint for lack ofsubject

matter jurisdiction or, in the altemative, for failure to state a claim upon which reliefcan be

granted. For the reasons discussed below, the Court concludes that it lacks jurisdiction to

address plaintiff s claims. Accordingly, the government's motion to dismiss pursuant to RCFC

12(b)(1) is GRANTED and this case is DISMISSED without prejudice.

BACKGROUND

According to plaintiff, on March 14, 1990, he went to the Dayton Municipal Court

Complex C'DMCC') to address several traffic violations. Am. Compl. Ex. 12 at.2. plaintiff

alleges that he was assaulted by city ofDayton and county police while he was "handling his

business inside the [DMCC]." Am. Compl. fl lxxii. Plaintiff further alleges that various public

officials and his lawyer intentionally or negligently conspired to deprive him ofhis constitutional

rights and the consequent damages for the assault. Am. Compl. u ciii.

Plaintiff filed an action under 42 U.S.C. $ 1983 in the United States District Cou( for the

Southem Dishict of Ohio against the officers involved in the incident. See Ealv v. Citv of

Dayton,No.95-3969,1996U.S.App.LEXIS33236(6thCir.Dec. 16, 1996). Followingalgg4

trial, the jury found that although the defendant had used excessive force, the defendant had not

proximately caused Mr. Ealy's injuries, and it therefore rendered a verdict against Mr. Ealy and

awarded him no damages. Id. at * 1-2. Mr. Ealy sought judgment as a matter of law or, in the

altemative, a new trial, both of which the district court denied; the United States Court of

Appeals for the Sixth Circuit affirmed this decision. ld. at *2.

Dissatisfied with the result of the trial and the Sixth Circuit decision, Mr. Ealy has filed

numerous complaints and petitions for writs ofhabeas corpus in various United States District

Courts against Federal and Ohio judges as well as Ohio officials and entities. See. e. g., Ohio v.

Ealy, No. l:09-cv-245,2009 U.S. Dist. LEXIS 41240, at *4-17 (S.D. Ohio Apr. 24,2009)

(providing a history of Mr. Ealy's litigation in the Southem District of Ohio). In addition, Mr.

Ealy has twice petitioned the Sixth Circuit for a writ of mandamus and other relief retating to his

1994 trial, which the Court denied. See In re Elbey, No. 11-3597, 201 1 U.S. App. LEXIS 26690

(6th Cir. Aug. 5, 2011); In re Ealy, No. 09-3422, 2009 U.S. App. LEXIS 29849 (6th Cir. June

12,2009).

DISCUSSION

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as

true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe

plaintiff. Trusted Integration v. United States,659 F.3d 1159, 1163(Fed.Cir.2011). The

plaintiff bears the burden ofestablishing subject matter jurisdiction by a preponderance ofthe

evidence. Brandt v. United States, 710 F.3d 1369,1373 (Fed. Cir. 2013). It is well established

that complaints that are filed by pro se plaintiffs are held to "less stringent standards than formal

pleadings drafted by lawyers." Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even

pro se plaintiffs must persuade the Court that jurisdictional requirements have been met.

Bemard v. United States, 59 Fed. Cl. 497, 499 (2004), affd, 98 F. App'x 860 (2004).

The Court of Federal Claims has jurisdiction under the Tucker Act to hear "any claim

against the United States founded either upon the Constitution, or any Act ofCongress or any

regulation ofan executive department, or upon any express or implied contact with the united

States, or for liquidated or unliquidated damages in cases not sounding in tort.', 28 U.S.C. g

1491(a)(1) (2012). The Tucker Act waives the sovereign immunity of the United States to allow

a suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not

confer any substantive rights. United States v. Testan,424U.5.392,398 (1976). Therefore, a

plaintiff seeking to invoke the court's Tucker Act jurisdiction must identifii an independent

source ofa substantive right to money damages from the United States arising out ofa conuacr,

statute, regulation, or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation

Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008).

2

Plaintiff contends that the Court has jurisdiction to hear his tort claims against the

govemment "for allowing the Dayton and County Police Department to assault him in violation

of the 4th Amendment" and his tort claims against federal employees who intentionally or

negligently acted in their administrative or judicial duties. Am. Compl. 10. In addition to citing

the Tucker Act, plaintiff cites to a multitude of constitutional provisions, statutes, federal cases,

and state law causes of action as the alleged bases for the Court's jurisdiction. These include the

Federal Torts Claims Act C'FTCA') as well as state common law tort causes of action, Am.

Compl. flfl i-iv, vi-xxvii, xxxvi, xlvii-lxii, clxvii-clxxx, cclxxvii-ccclxv; Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Am. Compl. flfl iv, xxviii-

xxxv, lxxiii; the Racketeering Influence Comrpt Organization (RICO) statute, Am. Compl. iv,

xxxvi-xxxvii, xl-xlvi, lxxxvi, ccclxvi-ccclxxiii; 42 U.S.C. $ 1983 and other civil rights starures;

and various Constitutional Amendments, Am. Compl. fl cxl (alleging violations of the Fourteenth

and Fifth Amendments), 28 U.S.C. $ 1343,42 U.S.C. $$ 1983, 1985, 1988, Am. Compl. flfl xxv,

cxxxxiii, cxl-clviii, cclxxvii; Monell v. Dep't of Soc. Servs. of N.Y.,436 U.S. 65S (1978), Am.

Compl. ifftf cxxvi, ccxxvii; 28 U.S.C. $$ 455, 1331, 1337 , 1367, t441,2341-51, Am. Compl. ,lfg

xxxvii, lxiv-lxv, cxxxix, cxlv; the Administrative Procedure Act, 5 U.S.C. $ 702, Am. Compl. flfl

lxii; and the Ohio Constitution as weil as Massachusetts and Ohio State laws, Am. Compl flfl

clix-clxvi. Finally, Mr. Ealy seeks to have this Court entertain his claims under the common law

doctrine of pendent jurisdiction as set forth in United Mine Workers of Am. v. Gibbs, 383 U.S.

715 (1996), Am. Compl. fl xxxviii. Unforlunately for plaintiff, none ofthese provides a proper

basis for this Court's jurisdiction, even if plaintiff s complaint is held to "less stringent standards

than formal pleadings drafted by lawyers." Haines,404 U.S. at 520.

In addition to naming the United States as a defendant, plaintiff names several federal

judges as well as the City of Dalton and various employees of the City of Day.ton. Am. Compl.

1-1 1 . See Compl. tf i. The Court lacks jurisdiction over actions against Federal judges.

Coleman v. United States, 116 Fed. Cl. 461,470 (2014); Coleman v. United States, No. 14-

413C,2014U.S.ClaimsLEXIS1396,at+ 8(Fed.Cl.Dec. 12,2014). Further,theUnitedStates

is the only proper defendant in this Court. United States v. Sherwood, 3l2 U.S. 584, 588 (1941).

The Court, therefore, lacks jurisdiction over all non-federal defendants. See Moore v. Durango

Jail. in Maricopa Cntv.. Phoenix. Ariz.,77 Fed. Cl.92,95 (2007) ("When a plaintiff s complaint

names . . . local, county, or state agencies, rather than federal agencies, this court has no

jurisdiction to hear those allegations.").

It is unclear from the complaint what claims (if any) Mr. Ealy is alleging against the

United States. But assuming that the United States has been named as a defendant in this case,

the Court lacks jurisdiction over the claims alleged. Thus, the Court lacks jurisdiction to reach

Mr. Ealy's claims that his civil rights under the Fourth Amendment, the Fifth Amendment Due

Process Clause, the Fourteenth Amendment or Federal Civil rights laws were violated. Miller v.

united states, 67 Fed. cl. 195, 199 (2005) ("Although this court may exercise jurisdiction over

claims 'founded . . . upon the Constitution,' the scope of this court's jurisdiction over

constitutional claims is limited to claims arising under provisions of the constitution that

mandate the payment of money.") (citing 28 U.S.C.$ 1a91(aX1)); LeBlanc v. United States, 50

F.3d 1025, 1028 (Fed. Cir. 1995) (observing that the court does not have jurisdiction over claims

under the Fourteenth Amendment); Camrth v. United States , 627 F .Zd, 1068, 1081 (Ct. Cl. l9g0);

(finding that the Court ofFederal Claims lacks iurisdiction over claims arisins under the Fifth

Amendment). Mr. Ealy's claims of violations of his Fourth Amendment rights under a Bivens

theory are similarly beyond this Court's jurisdiction. Brown v. United States, 105 F.3d 621, 623-

24 (Fed. Cn.1997). Further, claims under 28 U.S.C. $ 1343 and 42 U.S.C. $$ 1983, 1985, 1988

are properly brought in a United States District Court, not this Court. 42 U.S.C. $ 1343. Nor

does Monell, 436 U.S. 658, give rise to a cause of action in this court, as it pertains to local

govemments' liability under 42 U.S.C. $ 1983.

As to Mr. Ealy's claims that sound in tort, the Tucker Act expressly excludes such claims

from this Court's jurisdiction. 28 U.S.C. g 1a91(a)(1) (stating that the "Court of Federal Claims

shall have jurisdiction to render judgment upon any claim against the United States . . . in cases

not sonndins in tort" (emphasis added)); Brown, 105 F .3d at 623. Actions under the FTCA, 28

U.S.C. $$ 1346,267l-80, are properly brought in the United States District Courts, not this

one. See 28 U.S.C. $ 1346(bX1). And although Mr. Ealy also cites the Contract Disputes Act

C'CDA), 41 U.S.C. $ 7104(bX1), as a basis for his claim, he has failed to allege any facts

sufficient to show a contract with the United States or identify the terms ofthe contract or the

provisions that have been breached. Consequently, the CDA does not provide a basis for the

exercise of the Court's jurisdiction.

In his complaint, Mr. Ealy cites an assortment of other statutes that do not confer

jurisdiction on this Court because they are not money mandating. Thus 28 U.S.C. $ 455, which

governs judicial misconduct, is not money mandating. Uzamere v. United States, No. 10-585C,

2010 WL 3528897, at *3 (Fed. Cl. Sept. 3, 2010). Neither is the Administrative Procedure Act

(APA) a money-mandating statute. Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006).

Furthermore, the APA may not be used to review the actions of federal judges or state entities.

Pierce v. United States, 117 Fed. Cl. 798, 801 (2014);5 U.S.C. $ 702. l\h. Ealy's causes of

action based on the Ohio Constitution or the state laws of Massachusetts and Ohio are also not

within this Court's jurisdiction. 28 U.S.C. g 1a91(a\1) (providing the Court of Federal Claims

with jurisdiction to hear "any claim against the United States founded either upon the

Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any

express or implied contract with the United States, or for liquidated or unliquidated damages in

cases not sounding in tort"). Further, because the Court lacks jurisdiction over claims of

criminal misconduct, neither Title l8 nor RICO provide a basis for the exercise ofjurisdiction in

this case. Joshua v. United States, 17 F.3d 378,379 (Fed. Cir. 1994); Treviffo v. United States,

113 Fed. Cl.204,209 (2013) C'RICO is a criminal statute and this court lacks jurisdiction to

entertain claims brought under a criminal statute.").

Mr. Ealy also seeks to have this Court entertain his claims under the common law

doctrine of pendent jurisdiction as set forth in Gibbs, 383 U.S. at 725-26. Am. Compl. fl xxxviii.

Even assuming that this Court could ever exercise pendent jurisdiction, it could not do so here

because, as explained, it lacks original jurisdiction over any ofMr. Ealy's claims. See. e.s.,

Sioux Hone)' Ass'n v. Hartford Fire Ins. Co.,672F.3d 1041, 1055 (Fed. Cir.2012) (holding that

the Court of Intemational Trade may not exercise pendent jurisdiction over defendants where the

court had "no original jurisdiction over any ofthe claims" against those defendants).

Finally, as noted above, Mr. Ealy has filed numerous complaints in various jurisdictions

in an attempt to recover the damages to which he believes he is entitled. To the extent that Mr.

Ealy seeks in his complaint to appeal the decisions of the United States District Court and Sixth

Circuit that he was not entitled to any damages for the injuries he suffered during the incident in

1990, this Court is not the proper forum for such appeals. Decisions of the district courts are

appealable to the United States Courts ofAppeals. See 28 U.S.C. $ 1291. Decisions ofthe

Courts of Appeals are appealable to the United States Supreme Court. 28 U.S.C. $ 1254.

CONCLUSION

For the reasons stated above, the Court GRANTS the govemment's motion to dismiss

pursuant to RCFC 12(bX1). Accordingly, plaintiff s complaint is DISMISSED without

prejudice for lack ofjurisdiction.

\ -_,-..

PlaintifPs motions for summary judgment, ADR refenal, and extension of time to serve

defendants by cd-rom areDENIED as moot. Plaintiffs application to proceed in forma pauperis

is GRANTED for the limited purpose of dismissing the complaint.

The Clerk ofthe Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

A-/r(-

ELAINED, KAPLAN

Judge