Jordan v. United States

lfn tbe Wniteb ~tates

RIGINAL

<!ourt of jfeberal <!Iaims FILED

AUG 2 5 2016

No. 15-l 175C

U.S. COURT OF

(Filed: August 25, 2016) FEDERAL CLAIMS

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MELZA E. JORDAN, SR., * Motion to Dismiss; Application to Proceed

* In Forma Pauperis; Pro Se Plaintiff;

Plaintiff, * Procedural Due Process; Federal Rules of

* Civil Procedure; 28 U.S.C. § 1331;

v. * Constitution of the State of Illinois; "Bivens

* Action"; Second, Fourth, Fifth, Eighth,

THE UNITED STATES, * and Fourteenth Amendments to the United

* States Constitution; Lack of Jurisdiction

Defendant. *

*************************************

Melza E. Jordan, Sr., Joliet, Illinois, pro se.

Courtney D. Enlow, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Before the court is defendant's motion to dismiss plaintiffs pro se amended complaint

for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States

Court of Federal Claims ("RCFC"). In addition, plaintiff has filed an application to proceed in

forma pauperis. Plaintiff alleges that Judge Virginia M. Kendall of the United States District

Court for the Northern District of Illinois ("district court")-in both her individual and official

capacity-various federal employees, and the United States-as their employer-deprived him

of access to the district court by dismissing his complaint against a particular hospital and certain

doctors, and by ruling against him on various motions. Plaintiff brings suit pursuant to several

amendments to the United States Constitution, the Constitution of the State of Illinois, and 28

U.S.C. § 1331, among other sources of law. Although the court grants plaintiff's application to

proceed in forma pauperis, it possesses no jurisdiction to hear his claims. Accordingly, the court

grants defendant's motion and dismisses plaintiff's amended complaint.

I. BACKGROUND

Plaintiff Melza E. Jordan, Sr. alleges that he previously brought suit in the district court,

and that his case was assigned to Judge Virginia M. Kendall. According to plaintiff, his claims

arose from his being "wrongfully seized and detained against [his] will in the Psychiatric Ward

of Provena St. Joseph Medical [T]reatment Facility, and from [his] being subject to psychiatric

drugs and ... to the fraudulent seizure of monies from [his] medical insurance carrier." Am.

Compl. 6. On May 17, 2012, the district court dismissed his complaint for lack of subject matter

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jurisdiction pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(1 ). Plaintiff

subsequently moved for relief from judgment pursuant to FRCP 60(b)(6) and for permission to

file an amended complaint. On July 3, 2012, the district court denied the motion for relief from

judgment, but allowed plaintiff to file an amended complaint. Plaintiff filed an amended

complaint on July 30, 2012.

On October 9, 2015, plaintiff filed suit in this court. Subsequently, defendant filed a

motion to dismiss plaintiffs complaint, and then on March 14, 2016, plaintiff filed an amended

complaint. In his amended complaint, plaintiff brings suit against Judge Kendall in both her

official and individual capacities, certain "unknown administrative assistants," and the United

States-as their employer. Id. Plaintiff alleges that by dismissing his complaint, the district

court "deprived [him] of his rights to the full and equal benefit of ... procedural due process"

during the "limited pre-trial proceedings." Id. at 2. Plaintiff contends that defendants in this

case acted "intentionally, recklessly, and in careless disregard and in gross negligence." Id.

Plaintiff calls his case a "Bivens Action," and argues that his rights were violated under the

district court's local rules; the Federal Rules of Civil Procedure; Article I of the Constitution of

the State of Illinois; 28 U.S.C. § 1331; and the Second, Fourth, Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution. Plaintiff seeks compensatory, consequential,

general, proximate, and special damages in the sum of $250,000.

Defendant filed a motion to dismiss plaintiffs amended complaint, for lack of subject

matter jurisdiction, pursuant to RCFC 12(b)(l). The motion is fully briefed, and the court deems

oral argument unnecessary.

II. LEGAL STANDARDS

A. Tucker Act

The ability of the United States Court of Federal Claims ("Court of Federal 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).

A 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. § 1491(a)(l) (2012). However, the

Tucker Act is merely a jurisdictional statute and "does not create any substantive right

enforceable against the United States for money damages." United States v. Testan, 424 U.S.

392, 398 (1976). Instead, 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 tates, 27

F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).

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B. RCFC 12(b)(l) Motion to Dismiss

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, sua sponte, may challenge the existence of subject matter jurisdiction at any time.

Arbaugh v. Y&1 Corp., 546 U.S. 500, 506 (2006).

When considering whether to dismiss a complaint for lack of jurisdiction, a court

assumes that the allegations in the complaint are true and construes those allegations in the

plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A prose plaintiffs

complaint, "'however inartfully pleaded,' must be held to 'less stringent standards than formal

pleadings drafted by lawyers' .... " Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines

v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a prose plaintiff is not excused from

meeting basic jurisdictional requirements. See Henke, 60 F.3d at 799 ("The fact that [the

plaintiff] acted pro se in the drafting of his complaint may explain its ambiguities, but it does not

excuse its failures, if such there be."). In other words, a pro se plaintiff is not excused from his

burden of proving, by a preponderance of the evidence, that the court possesses jurisdiction. See

McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The plaintiff cannot rely solely on

allegations in the complaint, but must bring forth relevant, adequate proof to establish

jurisdiction. See McNutt, 298 U.S. at 189. Ultimately, ifthe court finds that it lacks subject

matter jurisdiction, then it must dismiss the claim. Matthews v. United tates, 72 Fed. Cl. 274,

278 (2006); see also RCFC 12(h)(3) ("If the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.").

III. DISCUSSION

In his amended complaint, plaintiff alleges that the district court violated his procedural

due process rights when it dismissed his complaint, and requests that this court award him

damages. The court lacks jurisdiction over plaintiffs claims. Consequently, plaintiffs

complaint must be dismissed.

A. The United States Is the Only Proper Defendant in the Court of Federal Claims

Although the court has read the complaint in the light most favorable to plaintiff, it

cannot locate any allegations that implicate the United States. Plaintiff instead brings suit

against individuals, namely, Judge Kendall, and certain administrative assistants who

presumably work for the district court and are thus federal employees. However, in the Court of

Federal Claims, "the only proper defendant ... is the United States, not its officers, nor any other

individual." tephenson v. United States, 58 Fed. Cl. 186, 190 (2003); accord RCFC lO(a).

Indeed, the "Tucker Act grants the Court of Federal Claims jurisdiction over suits against the

United States, not against individual federal officials." Brown v. United States, 105 F.3d 621,

624 (Fed. Cir. 1997); see also Cleavinger v. Saxner, 474 U.S. 193, 199 (1985) (recognizing that

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federal judges are immune from suit for damages for their official actions); Ealy v. United States,

120 Fed. Cl. 801, 805 (2015) ("The Court lacks jurisdiction over actions against Federal

judges."). Thus, the court lacks jurisdiction to entertain claims against Judge Kendall, and to the

extent that they are federal employees, the unnamed administrative assistants implicated by

plaintiff. Further, to the extent that the unnamed administrative assistants are not federal

government employees, this court has no jurisdiction to entertain claims against private parties.

Nat'! City Bank v. United States, 143 Ct. Cl. 154, 164 (1958) ("It is well established that the

jurisdiction of this court extends only to claims against the United States, and obviously a

controversy between private parties could not be entertained.").

Plaintiff also alleges that the United States is liable as the employer of the federal

officials he identifies in his amended complaint. This court lacks jurisdiction to entertain such

claims of vicarious liability. O'Connor v. United tates, No. 09-383C et al., 2009 WL 4884463,

at *5 (Fed. Cl. Dec. 9, 2009) (citing Hammitt v. United States, 64 Fed. Cl. 547, 548-49 (2005)).

Ultimately, the jurisdiction of the Court of Federal Claims "is confined to the rendition of money

judgments in suits brought for that relief against the United States, ... and if the relief sought is

against others than the United States, the suit as to them must be ignored as beyond the

jurisdiction of the court." Sherwood, 312 U.S. at 584. Accordingly, because plaintiff asserts

claims against parties who are not the United States, and against the United States as an

employer instead of as an entity in itself, his claims are dismissed for lack of jurisdiction.

B. The Court of Federal Claims Cannot Review the Decision of a District Court

Although the court has concluded that plaintiffs failure to assert a claim against the

United States deprives it of jurisdiction, it will briefly address plaintiffs claims as a matter of

completeness. First, plaintiff states in his amended complaint that "this action is not an attempt

to use this Court as a means to engage in any form of appellate court proceedings to seek the

reversal of the actions and/or inactions on the part of the U.S. District Judge Virginia M.

Kendall." Am. Campi. 2. "Rather," plaintiff contends, "this action is being brought forth to

redress grievances of being discriminated against and deprived of [the] right to due process of

law during the limited pre-trial proceedings" in the district court. Id. Although plaintiff states

that he does not seek reversal of the district court's judgment, to the extent that his allegations

can be construed as an attack on the district court's dismissal of his amended complaint, this

court lacks jurisdiction to entertain them. Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.

1994) ("[T]he Court of Federal Claims does not have jurisdiction to review the decisions of

district courts ... relating to proceedings before those courts."). Accordingly, such claims must

be dismissed.

C. Even if Plaintiff Alleged Claims Against the United States, the Court Lacks Jurisdiction

to Entertain Them

Moreover, this court lacks jurisdiction over claims premised on the sources of law that

, plaintiff references in his amended complaint. First, plaintiff states that his case is a "Bivens

Action." Am. Compl. 1. A "Bi-vens" action is one based on Bivens v. ix Unknown Named

Defendants, 456 F.2d 1339 (1972), a case in which the Supreme Court of the United States held

that a violation of one's Fourth Amendment rights by federal officials can give rise to a federal

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cause of action for an unlawful search and seizure. Here, plaintiff does not supply any facts

indicating that he was subjected to unlawful search and seizure. Instead, he contends that his

rights were violated when his complaint was dismissed in the district court. Nonetheless, even if

plaintiff had sufficiently pled a Bivens claim, this court would lack jurisdiction to hear it. Ealy,

120 Fed. Cl. at 805; see also Brown 105 F.3d at 623.

Second, plaintiff contends that defendants violated 28 U.S.C. § 1331, which states that

"[t]he district courts shall have original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (2012). Plaintiff is

mistaken. This statute is "jurisdictional," and therefore '"do[ es] not create any substantive right

enforceable against the United States for money damages."' Hall v. U nited tates, 69 Fed. Cl.

51, 57 (2005) (quoting DeVilbiss v. Small Bus. Adm.in., 661 F.2d 716, 718 (8th Cir. 1981)).

Further, to the extent that plaintiff cites the statute as a basis for jurisdiction, this court "does not

have federal question jurisdiction under 28 U.S.C. § 1331," Faulkner v. United States, 43 Fed.

Cl. 54, 55 (1999), because it is not a district court, Ledford v. United States, 297 F.3d 1378, 1382

(Fed. Cir. 2002) (per curiam).

Third, plaintiff alleges that defendants violated Article I of the Constitution of the State

of Illinois. However, the Tucker Act only provides for jurisdiction for claims arising under the

United States Constitution, not state constitutions. See 28 U.S.C . § 1491; 0 Diah v. United

States, 2016 WL 1019251, No. 15-332C, at *2 (Fed. Cl. May 19, 2016) (explaining that "the

Court of Federal Claims has no jurisdiction to rule on claims arising under any state

constitution") (citing Kurt v. United States, 103 Fed. Cl. 384, 388 (2012) (citing 28 U.S.C.

§ 1491)).

Fourth, plaintiff contends that defendants were in contravention of the local rules of the

district court and the Federal Rules of Civil Procedure. This court lacks jurisdiction over alleged

violations of those rules. See Young v. United States, 88 Fed. Cl. 283, 288 (2009) (finding that

the court lacked jurisdiction over alleged violations of the Federal Rules of Civil Procedure).

Fifth, plaintiff argues that defendants engaged in "intentional[], reckless[], and ...

careless disregard and in gross negligence." Am. Comp!. 2. These claims sound in tort. See

Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) (holding that claims "that defendant

engaged in negligent, fraudulent, or other wrongful conduct when discharging its official duties"

sound in tort). It is well settled that the Court of Federal Claims lacks jurisdiction over tort

claims. See 28 U.S.C. § 1491(a) ("The United States Court of Federal Claims shall have

jurisdiction to render judgment upon any claim against the United States ... in cases not

sounding in tort."); Ricks Mushroom erv., lnc. v. United States, 521 F.3d 1338, 1343 (Fed.

Cir. 2008); Woodrnffv. United States, 80 Fed. Cl. 806, 816 (2008); McCauley v. United

States, 38 Fed. Cl. 250, 264 (1997) ("Jurisdiction to hear tort claims is exclusively granted to the

United States District Courts under the Federal Tort Claims Act."), affd, 152 F.3d 948 (Fed. Cir.

1998).

Sixth, plaintiff raises claims under several amendments to the United States Constitution

over which this court lacks jurisdiction. Plaintiff invokes the Second Amendment, which states

that "[a] well regulated militia, being necessary to the security of a free state, the right of the

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people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. However, this

court lacks jurisdiction over such claims because the Second Amendment is not money-

mandating. lkins v. United States, 229 Ct. Cl. 607, 608 (1981) (per curiam) ("[E]xcept for the

taking clause of the fifth amendment, the other amendments do not require the United States to

pay money for their alleged violation,"); see also G sime v. United States, No. 14-506C, 2014

WL 6778581, at *6 (Fed. Cl. Nov. 26, 2014). Plaintiff also invokes the Fourth Amendment,

which provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to

be seized.

U.S. Const. amend. IV. Because the Fourth Amendment is not money-mandating, the court

lacks jurisdiction over plaintiffs claims brought pursuant to it. See Brown, 105 F .3d at 623;

accord Dupre v. United States, 229 Ct. Cl. 706, 706 (1981) (per curiam).

Plaintiff also asserts claims arising under the Due Process Clauses of the Fifth and

Fourteenth Amendments. The Due Process Clause of the Fifth Amendment provides, in relevant

part, "nor shall any person ... be deprived of life, liberty, or property, without due process of

law." U.S. Const. amend. V. Similarly, the Due Process Clause of the Fourteenth Amendment

states, "nor shall any state deprive any person of life, liberty, or property, without due process of

law.'' Id. at amend. XIV. However, this court lacks jurisdiction over such claims because

neither clause is money-mandating. LeBlanc v. United tates, 50 F.3d 1025, 1028 (Fed. Cir.

1995) ("[T]he Due Process Clauses of the Fifth and Fourteenth Amendments ... [are not] a

sufficient basis for jurisdiction because they do not mandate payment of money by the

government."); Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988) (holding that the

Due Process Clauses of the Fifth and Fourteenth Amendments "do not trigger Tucker

Act jurisdiction in the courts"). In addition, plaintiff cites the Eighth Amendment, which

provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." U.S. Const. amend. VIII. This constitutional amendment is not

money-mandating. See Ogden v. United States, 61 Fed. Cl. 44, 47 (2004); accord Trafny v.

United State , 503 F.3d 1339, 1340 (Fed. Cir. 2009) (per curiam). Accordingly, the court

possesses no jurisdiction over plaintifrs Eighth Amendment claims.

D. The Court Grants Plaintiff's Application to Proceed In Forma Pauperis

Finally, as noted above, plaintiff filed, concurrent 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.' See 28 U.S.C.

1

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 pauperi . See 28 U.S.C. § 2503(d)

(deeming the Court of Federal Claims to be "a court of the United States" for the purposes of 28

U.S.C. § 1915); see aJ Matthews, 72 Fed. Cl. at 277-78 (recognizing that Congress enacted the

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§ 1915(a)(l); see also Hayes v. United States, 71 Fed. Cl. 366, 366-67 (2006) (concluding that

28 U.S.C. § 1915(a)(l) applies to 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 belief

that they are entitled to redress. 28 U.S.C. § 1915(a)(l). Here, plaintiff has satisfied all three

requirements. The court therefore grants plaintiffs application and waives his filing fee.

IV. CONCLUSION

In sum, the court GRANTS defendant's motion, DISMISSES plaintiffs complaint for

lack of jurisdiction, and GRANTS plaintiffs application to proceed in forma pauperis. No

costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

Court of Federal 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. § 1915).

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