Omran v. United States

ORIGINAI

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No. l5-186C

(Filed: June 30,2015) FILED

JUN 30 2015

NOT FOR PUBLICATION

MOHAMMED AHMED HASSAN OMRAN. 'Efe33'u8l*X5t

Plaintifl Pro Se Complaint; Rule l2(bXl)

Motion to Dismiss; Transfer;

28 U.S.C. ri 1631

THE UNITED STATES,

Defendant.

Mohammed Ahmed Hassan Ornran, Natchitoches, La., pro se.

Robert C. Bigler, with whom were Benjamin C. Mizer, Principal Deputy Assistant

Attorney General, Robert E. Kirschman. Jr., Director, and Donald E. Kinner, Assistant

Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, D.C., for def'endant.

OPINION and ORDER

CAMPBELL-SMITH, Chief Judge

Pro se plaintiff, Mohamrned Ahmed Hassan Abdallah Omran, filed a complaint in

this court on February 26,2015, raising claims under the Federal Tort Claims Act, the

Civil Rights Act, and the United States Constitution relating to his arrest, trial, and

conviction for immigration offenses. Compl. at l-2, Feb. 26,2015, ECF No. 1.

On August 30,2012, Mr. Omran was anested in New Hampshire for falsely

claiming U.S. citizenship in violation of 18 U.S.C. $ 911. See id. at 1. On September

5,2012, Mr. Omran was indicted on charges that he "falsely and willfully represented

himself to be a citizen of the United States on an Employment Eligibility Verification

Form" in violation of l8 U.S.C. $ 9l l. Indictment, United States v. Abdallah, No. 12-

00117 (D.N.FI. Sept. 5, 2012),ECF No. 1. Mr. Omran states that on September 24,

2012,Immigration and Customs Enforcement officers investigating this offense

conducted an illegal search and seizure at his home in violation of the Fourth

Amendment. Compl. at l Plaintiff also states that the lawyer appointed by the court to

represent him violated his right to effective assistance ofcounsel by filing, over his

objections, a motion to dismiss his case. ld. at2.

On February 27,2014, Mr. Omran was indicted on two counts of failing to depart

the United States after being issued an order of removal, in violation of 8 U.S.C. $

1253(a)(1)(C). Indictment, United States v. Omran, No. 14-00035 (W.D. La. Feb.27,

2014), ECF No. 1. He was tried in the United States District Court for the Western

District of Louisiana. Mr. Omran alleges that he was prohibited from calling witnesses

on his own behalf during his trial, in violation of his Sixth Amendment rights. Pl. Resp.

1-2,May 11, 2015, ECF No. 8.' On May 12,2015, Mr. Omran was found guilty on

both counts and was sentenced to imprisonment for six months. Judgment, United States

v. Omran, No. 14-00035 (W.D. La. May 12,2015), ECF No. 116. On May 18, 2015,

Mr. Omran filed a notice of appeal. Plaintiff claims that throughout these events, the

govemment violated his rights related to "unreasonable search and seizure, due process,

effective assistance of counsel, equal protection of the law, and right to property."

Compl. at 2.

On April 27,2015, defendant filed a motion to dismiss plaintiffls claims for lack

of subject matter jurisdiction, pursuant to Rule l2(bXl) of the Rules of the U.S. Court of

Federal Claims (RCFC). ECF No. 7. Also before the court are plaintiff s motion for

leave to proceed in forma pauperis, motion for trial by jury, and motion for the

appointment ofcounsel. ECF Nos. 5,6, 12.

The court GRANTS plaintiff s motion to proceed in forma pauperis for the

limited purpose of addressing this court's jurisdiction. For the reasons explained below,

the court finds it lacks jurisdiction over plaintiffs complaint. The court also finds it is

not in the interest ofjustice to transfer plaintiffs complaint to a federal district court in

which the complaint could have been brought. Accordingly, defendant's motion to

dismiss is GRANTED and the case is DISMISSED for lack ofjurisdiction pursuant to

RCFC l2(bXl). Plaintiff s motion for trial by jury and motion for the appointment of

counsel are DENIED.

I Plaintiffdid not allege thcse facts in his complaint but raised them for the first

time in his response to defendant's motion to dismiss. The court acknowledges that this

claim was not properly included in a pleading. See RCFC 7(a). However, because

plaintiff is proceeding pro se and his pleadings are to be construed liberally, the court has

chosen to address this claim.

I. Legal Standards

A. Subject-MatterJurisdiction

In evaluating subject-matter jurisdiction, "the allegations stated in the complaint

are taken as true and jurisdiction is decided on the face ofthe pleadings." Folden v.

United States, 379 F .3d 1344, 1354 (Fed. Cir. 2004) (internal quotation marks omitted).

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

pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Zulueta v. United

States, 553 F. App'x 983, 985 (Fed. Cir. 2014); Kelley v. Sec'y. U.S. Dep't of Labor, 812

F.2d 1378, 1380 (Fed. Cir. 1987).

The Tucker Act grants this court jurisdiction over "any claim against the United

States founded either upon the Constitution, or any Act ofCongress or any regulation of

an 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." 28 U.S.C. $

la91(a)(l) (2012). The Tucker Act is jurisdictional and does not create, by itself, any

substantive right to recovery against the United States. United States v. Mitchell,463

U.S. 206, 2 16 (1983); United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a

plaintiff in this court must rest his or her claim on a money-mandating provision of law

that confers a substantive right enforceable against the federal govemment for money

damages. See Testan, 424 U.S. at 398.

B. Transfer Under 28 U.S.C. S 1631

Should this court determines that it lacks jurisdiction over a plaintiff s claims, it

must transfer the case to a court where the action could have been brought if the transfer

"is in the interest ofjustice." 28 U.S.C. $ 1631 (2012); see also Tex. Peanut Farmers v.

United States, 409 F.3d 1370, 137 5 (Fed. Cir. 2005) (stating that the trial court may order

transfer sua sponte). According to the Federal Circuit, "[t]he phrase 'if it is in the

interest ofjustice' relates to claims which are nonfrivolous and as such should be decided

on the merits." Gallowa)r Farms. Inc. v. United States,834 F.2d 998, 1000 (Fed. Cir.

1987) (citing Zinger Constr. Co. v. United States ,7 53 F .2d 1053, 105 5 (Fed. Cir. 1985)).

Frivolous claims include "those whose disposition is obvious." Id.

In deciding whether transfer is in the interest ofjustice, this court considers

whether any of plaintiff s claims would be decided on the merits in federal district court.

II. Discussion

A. The Court Lacks Jurisdiction Over Plaintiff s Clarms

3

For the reasons that follow, the court finds that it lacks jurisdiction over plaintiff s

numerous claims. First, Mr. Omran alleges that U.S. Immigration and Customs

Enforcement officers unlawfully searched his home and seized his possessions, in

violation of the Fourth Amendment. "[F]or this Court to have jurisdiction over

constitutional . . . claims, the claims must be money mandating." Tasby v. United

States, 91 Fed. Cl. 344,346 (2010) (citing Mitchell,463 U.S. at216,2l8). The Fourth

Amendment, however, does not mandate the payment of money. Brown v. United

States, 105 F .3d 621 , 62314 (Fed. Cir. I 997) ("Because monetary damages are not

available for a Fourth Amendment violation, the Court of Federal Claims does not have

jurisdiction over such a violation."). Therefore, this court cannot hear plaintiffs Fourth

Amendment claims.

Plaintiff s other constitutional claims similarly fall outside of this court's

jurisdiction. Fifth Amendment due process claims, and Fourteenth Amendment due

process and equal protection claims do not mandate the payment of money damages and

thus cannot fumish a basis for jurisdiction. Smith v. United States, 709 F.3d I I14, 11 l6

(Fed. Cir. 2013); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). Nor is

plaintiff s Sixth Amendment ineffective assistance of counsel claim money mandating;

thus, it cannot be raised in this court. Turpin v. United States, I l9 Fed. Cl.704,'707

(2015); Smith v. United States, 51 Fed. Cl. 36, 38 (2001), affd, 36 F. App'x 444 (Fed.

Cir.2002).

Mr. Omran also invokes the Civil Rights Act and asserts that he is bringing a

"civil rights action." However, this court lacks jurisdiction over federal civil rights

claims. SeeMcCauleyv.UnitedStates,38Fed. Cl.250,265(199'7),afld, l52 F.3d948

(Fed. Cir. 1998)C'Itiswell settled that this court does not have jurisdiction over civil

rights claims brought under Title VII of the Civil Rights Act of 1964 or 42 U.S.C. $

1983.').

Plaintiff further alleges that he was wrongfully convicted. While under certain

circumstances this court has jurisdiction to hear a claim for money damages for unjust

conviction, 28 U.S.C. $ 1495, such jurisdiction is dependent on the challenged conviction

first having been reversed, set aside, or overturned after a new trial or hearing, or the

prisoner having received a pardon, 28 U.S.C. $ 25 13(a)( 1); Beadles v. United States, 1 15

Fed.CI.242,245(2014);Sharoev.UnitedStates, 112Fed.CI.468,417(2013). Mr.

Omran does not allege that his conviction has been reversed, set aside, or overturned and

provides no indication that he has been granted a pardon. Therefore, Mr. Omran fails to

meet the bar set by 28 U.S.C. $$ 1495 and2513, and this court does not have jurisdiction

to consider his wrongful conviction claim.

Plaintiff also invokes the Federal Tort Claims Act (FTCA) as grounds for his

complaint, although the contours of his tort claim are unclear. The United States district

courts have exclusive jurisdiction over FTCA cases. Bowling v. United States, 93 Fed.

Cl. 551, 557 (2010); see 28 U.S.C. $ 1346(bXl). Additionally, the Tucker Act makes

clear that this court does not have jurisdiction over tort claims against the govemment.

28 U.S.C. $ 1a9l(a)(1) (stating that this court "shall have jurisdiction to renderjudgment

upon any claim against the United States . . . in cases not sounding in tort" (emphasis

added)); see also Keene Corp. v. United States, 508 U.S. 200,214 (1993); Shearin v.

United States, 992F.2d 1195,ll97 (Fed. Cir. 1993). Therefore, to the extent plaintiff

raises any tort claims, the court lacks jurisdiction.

Plaintiff s motions for trial by jury and the appointment of counsel are both

denied. Because the court lacks jurisdiction over plaintiffs claims, there is no need for

counsel or a trial in this case. Moreover, "there is no right to a jury trial in this court and

this court does not conduct trials by jury." Ramos v. United States, 112 Fed. Cl. 79, 83

n.3 (2013) (citing Webster v. United States,74 Fed. Cl. 439,444 (2006)).

B. Transfer Is Not in the Interest of Justice

Mr. Omran raises claims relating to two arrests: one in New Hampshire and one

in Louisiana. The court will first address plaintiff s claims arising out of the New

Hampshire arrest. If Mr. Omran filed a claim in federal court in New Hampshire, it

would be bound by the precedent of the First Circuit Court ofAppeals.

The First circuit has held that res judicata, otherwise known as claim preclusion,

"applies if (l) the earlier suit resulted in a final judgment on the merits, (2) the causes of

action asserted in the earlier and later suits are sufficiently identical or related, and (3) the

parties in the two suits are sufficiently identical or closely related." Airframe Sys.. Inc.

v. Rafiheon Co., 601 F.3d 9, 14 (1st Cir. 2010).

on November 10,2014, Mr. omran filed a complaint in the united states District

court for the District of New Hampshire alleging many of the same claims he presents in

this court. Compl., Omran v. United States, No. 14-505 (D.N.H. Nov. 10, 2014).2 In

2 Mr. Omran also filed a substantially similar suit in the United States District Court

for the District of Massachusetts on October 14,2014. See Compl., Omran v. United

States, No. 14-13881 (D. Mass. Oct. 14,2014), ECF No. 1. A final decision on the

merits has yet to be issued in that case, so it does not have a res judicata effect on this

case. See Omran v. United States, 2015 WL 237631.4, No. 14-13881 (D. Mass. May 17,

2015). However, the fact that Mr. Omran has had multiple suits in federal district court

on similar claims strengthens the court's conclusion that transferring his complaint is not

in the interestof.iustice.

5

that action, plaintiff alleged the same facts about the warrantless search and seizure and

his attomey's failure to heed his wishes regarding the motion to dismiss the criminal

charges against him. Id. at 8-9. Plaintiff asserted claims under the Fourth Amendment,

the Due Process and Equal Protection clauses of the Fifth and Fourteenth Amendments,

the Sixth Amendment, the Civil Rights Act, and the FTCA, among others. Id. at 5, l0-

11. On February 10, 2015, the district court found that all of plaintiffs claims were

either frivolous or failed to state a claim and therefore, dismissed all claims pursuant to

28 U.S.C. gg 1915(e)(2)(B) and 1915A(b). Omran v. United States, 2015 WL 570723,

at*1,*9, No. l4-505 (D.N.H. Feb. 10,2015).

A dismissal for failure to state a claim is a final judgment on the merits. See

Airframe Sys., 601 F.3d at 14; AVX Corp. v. Cabot Corp. ,424 F.3d 28, 30 (lst Cir.

2005)- Additionally, the causes of action asserted in Mr. omran's November 10,2014,

complaint were sufficiently identical to the claims he raises in this court relatine to his

New Hampshire arrest. Finally, the parties in the two suits were essentially thJ same.

In the New Hampshire suit, Mr. omran sued the united States as well as numerous

federal and state offices and employees. Here, Mr. omran sues only the united states.

Since Mr. omran's claims against the united States have already beln dismissed in

the

District of New Hampshire, res judicata would bar Mr. omran fiom relitigating them in

federal court. Therefore, transfer of these claims would be futile and not in

G interest

ofjustice.

Plaintiffs wrongful conviction claim relates to his arrest and trial in the United

States District court for the western District of Louisiana for failure to depart. If the

plaintiff brought a case in Louisiana, it would be subject to the precedent

orthe pftrr

circuit court ofAppeals. In order to recover damages for an allegedly unconstitutional

conviction or imprisonment, a plaintiff "must prove ihat the conviction or sentence

has

been reversed on direct appear, expunged by executive order, declared

invalid b! a state

tribunal authorized to make such determination, or called into question by a

federal

court's issuance ofa writ ofhabeas corpus." Heckv. Humphrey,512 u:s.

477,ig6_g7

(1994); see also Boyd v. Biggers, 31 F.3d 279,282-83 (5iciti99+). since ptaintiff

has offered no evidence that his conviction has been reversed, expunged,

or otherwise

declared invalid, he would be barred from raising this claim in feiera-i district coun.

.becauseAdditionally, justice does not require the court to transfer plaintiffs

Mr. Omran will have

complaint

the opportunity to challenge his failure to depart conviction

on Sixth Amendment or other grounds through the direct appeal

ofthat conviction.

Plaintiff has already filed a notice ofappeal, and the case has been docketed in

the Fifth

circuit. United States v. omran, No. l5-30461 (5th cir. docketed May 22,2015).

Since plaintif'f s claims would not warrant a decision on the merits in federal

district court, and plaintiffhas had and will have other opportunities to raise these claims,

transfer of this case is not in the interest of iustice.

III. Conclusion

For the reasons discussed above, the court finds that it lacks jurisdiction over

plaintiff s claims. Defendant's motion to dismiss is GRANTED. Plaintiff s motion for

trial by jury is DENIED. Plaintiff s motion for appointment of counsel is DENIED.

Plaintiff s motion to proceed in forma pauLeris is GRANTED for the limited

purpose of addressing this court's jurisdiction. Pursuantto28 U.S.C. $ 1915(b),

prisoners who are allowed to proceed in forma pauperis are still required, over time, to

pay the full amount of the filing fee. Thus, plaintiff shall be assessed, as a partial

payment ofthe court's filing fee, an initial sum of twenty percent of the greater of (1) the

average monthly deposits into his account, or (2) the average monthly balance in his

account for the six-month period immediately preceding the filing of his complaint. Id.

$ 1915(b)(l). Thereafter, plaintiff shall be required to make monthly payments 01'

twenty percent of the preceding month's income credited to his account. Id. $

1915(bX2). The agency having custody of plaintiff shall forward payments from

plaintiff s account to the clerk of the court of Federal claims each time the account

balance exceeds $10 and until the filing fee is paid in full. Id.

The Clerk ofthe Court is directed to enter judgment for defendant. No costs.

IT IS SO ORDERED.

atricia E. C