Krukowski v. United States

FILED

FEB 27

0Rl6[NAt U.S. COURT OF

2017

o u'A L c LAr M s

Iftt tllt @n f tr! 9ltuteg @ourt o f

No. 16-1708C (Pro Se)

f o ! rrut @ls infgt

(Filed: February 27 ,2017 | Not for Publication)

Keywords: Pro Se Complaint; Subject

ASHTON KRUKOWSKI, Matter Jurisdiction; Tucker Act; 28

U.S.C. $ 1491;Habeas Corpus; 28 U.S.C.

Plaintiff, $2241;28 U.S.C. $ 2254; Rehabilitation

Act; Prison Litigation Reform Act.

THE TINITED STATES OF AMERICA,

Defendant.

Ashton Krukows*i, Las Vegas, NV, Plaintiff Pro Se.

Russell J. upton,Tial Attomey, commercial Litigation Branch, civil Division, Departnent of

Justice, Washington, DC, for Defendant, with whomwere Patricia M. McCarthy, Assistant

Dfuector, Robert E. Kirschman, -Ir., Director, and, Chad A. Readler, Acting Assistant Attomey

General.

OPINIONAND ORDER

KAPLAII, Judge.

On December 27 ,2016, Mr. Krukowski, the pro se plaintiff, filed four handwritten

notices which the Clerk ofCourt construed together as a complaint. The notices relate to a writ

ofhabeas corpus and other, currently pending lawsuits in state and federal court. on February 6,

2077 , tae govemment filed a motion to dismiss, arguing that the court lacks subject matter

jurisdiction over the complaint, and altematively, that Mr. Krukowski has failed to state a claim

upon which reliefcan be granted. For the reasons set forth below, the Court concludes that it

lacks subject mafter jurisdiction over the complaint. Accordingly, the govemment's motion to

dismiss is GRANTED and the complaint is DISMISSED wirhout preiudice.

BACKGROUND

Prior to filing the notices referred to above, Mr. Krukowski filed a separate complaint in

this court on August I 5, 2016, asserting, inter alia, that state authorities in Nevada had falsely

anested him and violated his constitutional rights. See Krukowski v. United States, 129 Fed. Cl.

440,442 (2016).' That case was assigned to Judge wheeler, and on December 2,2016. Jud,se

wheeler dismissed rhe complaint for lack of subject maner judsdiction. See id. at 44344.irr.

I As

of December 2016,Mr. Krukowski was incarcerated in clark county Detention center in

Nevada. See Krukowski, 129 Fed. Cl. at 442; see also Compl. at l, Dockit No. 1.

?01q 1e00 0Bu0 t09l ttirq

Krukowski then filed a notice of appeal in the Court of Appeals for the Federal Circuit, on

January 5, 2017. Notice ofAppeal, Krukowski v. United States, No. 16-1010 (Fed. Cl.2017),

Docket No. 17. That appeal is crmently pending. See id.

On December 27,2016,Mr. Krukowski filed the documents at issue here, four separate,

one-page handwritten notices, which collectively the Clerk deemed a new complaint. See Compl.

They are each dated December 4, 2016. See id. The first notice is entitled "Notice ofPetition for

writ of Habeas corpus [P]ursuant [to] 28 U.S.C. $ 2241 with [A]dditional [I]nvoked [S]tatutes.,,

Id. at 1. The caption reads "Ashton Krukowski vs. United States et. a1." and includes on the

right-hand side "U.S. District Court of Nevada case # 2:16-CY -02445-APG-VCF" and *8th

District of Nevada Case # C-l6-312854-1 Dept. # 8." Id. In the body of this document, Mr.

Krukowski wrote only that he was "giv[ing] notice of Petition for Writ of Habeas Corpus

pursuant [to] 28 U.S.C. $ 2241 with additional invoked statutes listed in the Petition, case # 2:16-

CV-02445-APG-VCF in U.S. District Court of Nevada." Id.

ln the second notice, entitled'Notice of Additional Parties to Civil Action,,'Mr.

Krukowski simply listed the state of Nevad4 the Supreme court of Nevad4 the "U.s. District of

Nevada," the United States Court of Appeals for the Ninth Circuit, the United States Court of

Federal Claims, and the United States. Id. at 2. The caption is identical to the caption on tle first

notice, except that the case number for the Nevada state court case is absent. See id.

The third notice is entitled'Notice of Motion to Remove Civil Action to U.S. Court of

Federal claims pursuant [to] 28 u.s.c. g 2254 and under the Rehabilitation Act and prison

Litigation Reform Act." Id. at 3. The caption is identical to the first notice. See id. In this third

document, Mr. Krukowski "give[s] notice of [his] motion to remove [his] civil action to [the]

U.S. Court of Federal Claims pursuant to 28 U.S.C. $ 2254 and under the Rehabilitation Act and

Prison Litigation Reform Act." Id. He also appeared to describe the underlying civil action for

which he seeks removal as a "[c]ivil action pursuant [to] 28 U.S.c. g 2241 with additional

invoked statutes listed in the Petition for Writ of Habeas Corpus in U.S. District Court of Nevada

case # 2:16-cV-02445-APG-vcF." Id. Mr. Krukowski noted that "[a]dditional parties

[are]

listed in the Notice of additional Parties Document enclosed.,' Id.

Finally, the fourth notice states that it is an "Objection to the Petition for Rehearing case

# 71117 and 71118 in Supreme Court of Nevada." Id,. at 4.In this document, Mr. Krukowski

only stated that he objects to the purported rehearing on the "grounds ofa civil action filed in

process against the parties before the Petition." Id.

DISCUSSION

In determining whether the court has subject matter j urisdiction, it accepts as true all

undisputed facts in the pleadings and draws all reasonable inferences in favor of the olaintiff.

Trusted Inteqration. Inc. v. united states, 659 F.3d 1159, 1163 1Fed. Cir. 201l). However, ifa

movant disputes the basis ofthe court's jurisdiction, the allegations in the complaint are not

controlling and the Court may review evidence extrinsic to the pleadings. Cedars-Sinai Med. Ctr.

v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).

It is well-established that complaints that are filed by pro se plaintiffs, like this one, are

held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,

404 U.S. 519,520 (1972). Nonetheless, a plaintiff bears the burden of establishing subject matter

jurisdiction by a preponderance ofthe evidence. Brandt v. United States, 710 F.3d 1369,1373

(Fed. Cir. 2013); see also Reynolds v. Army & Air Force Exch. Serv.,846F.2d 746,748 (Fed.

Cir. 1988). Therefore, even pro se plaintiffs must persuade the Court tlut jurisdictional

requirements have been met. Bemard v. United States, 59 Fed. Cl. 497 , 499, aff d, 98 F. App'x

860 (Fed. Cir. 2004); see also Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 20i4)

("[T]he leniency afforded to a pro se litigant with respect to mere formalities does not relieve the

bwden to meet jurisdictional requirements." (quotation and citation omitted)).

The Tucker Act grants the United States Court of Federal Claims the power.,to render

judgment upon 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 ot implied

contract with the United States, or for liquidated or unliquidated damages in cases not sounding

in tort." 28 U.S.C. $ l49l(a). It serves as a waiver of sovereign immunity and a jurisdictional

grant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv.. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299,1306 (Fed. cir. 2008). A plaintiff, therefore, must establish

that "a separate source of substantive law. . . creates the right to money damages.,, Id. (quoting

Fisher v. United States ,402F .3d 1167, 1172 (Fed. cir. 2005) (en banc in relevant part)); Rick's

Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (stating that a

"plaintiff must look beyond the Tucker Act to identifu a substantive source of law that creates

the right to recovery of money damages against the United States" (citation omiued)).

The govemment's primary argument here is that Mr. Krukowski,s complaint must be

dismissed pursuant to 28 u.s.c. $ 1500 because "his underlying claims were pending in other

courts at the time Mr. Krukowski filed his Notices." Def.'s Mot. for Summ. Dismissal of pro se

Matter at 8, Docket No. 5. That statute reads, in pertinent part, that the "united states court of

Federal Claims shall not have jurisdiction ofany claim for or in respect to which the plaintiffor

his assignee has pending in any other court any suit or process against the united staies." 2g

u.s.c. $ 1500.

To an extent, these notices do relate to Mr. Krukowski's other pending legal actions. For

example, he lists district court and state court case numbers in the caption of each notice, and he

also seeks removal ofthe federal district court case to this court. See Compl. at 3. It is difficult,

however, to view these documents as attempting to institute new proceedings in this court based

upon the same underlying claims pending in those other courts. In fact, it is quite possible that

Mr. Krukowski did not intend these documents to institute any new proceeding in this court. The

notices are dated December 4,2016, only two days after Judge wheeler dismissed Mr.

Krukowski's first complaint. See id. at 1. considering that Mr. Krukowski's notices took

approximately twenty-three days to make their way to this court from the conectional center,

lcg

id., it is likely that he had not yet received notice of Judge wheeler,s dismissal when he mailed

the notices at issue here. Thus it may be that Mr. Krukowski was attempting to submit the

notices to the court in his then-pending case for which he had already rubmitt"d a complaint.

But in any event, to the extent these notices can be construed as a new complaint. the

court cannot determine whether they assert any claims "for or in respect to which" Mr.

Krukowski "has pending in any other court any suit or process against the United States,"

because they are entirely devoid of any legal claims or factual allegations. For that reason, the

Court must dismiss Mr. Krukowski's complaint for lack of subject matter jurisdiction.

The documents Mr. Krukowski filed do not assert any entitlement to money damages

from the United States based upon a source of substantive law. In other words, he fails to plead

the existence ofany basis for Tucker Act jurisdiction. In fact, the documents make no claim for

any type ofdamages whatsoever. Rather, Mr. Krukowski's first notice seeks a writ of habeas

corpus, citing 28 U.S.C. $ 2241 . Compl. at 1 . That statute addresses the power of specific courts

to issue a writ of habeas corpus; the Court ofFederal Claims is not among the courts listed as

having that power. 28 U.S.C. $ 22al@).ln fact, the Court is not empowered to grant a writ of

habeas corpus and a petition for the same is outside the Court's subject matter j urisdiction.

Ledford v. United States ,297 F .3d 1378, 1380-81 (Fed. Cir. 2002); see also Emerson v. United

States, 123 Fed. Cl. 126, 129 (2015).

With respect to the second notice, it makes no allegations or assertions, but simply lists

"additional parties" to Mr. Krukowski's suit. See Compl. at 2. To the extent it attempts to apply

any of Mr. IGukowski's allegations to the state of Nevada, the Supreme Court of Nevada, the

"U.S. District of Nevada," the Court of Appeals for the Ninth Circuit, and this court, those

claims must be dismissed, as the court has no jurisdiction over claims against any defendant

other than the United States. See United States v. Sherwood, 312 U.S. 584, 588 (19a1) ([I]f the

relief sought is against others than the United States the suit as to them must be ignored as

beyond the jurisdiction ofthe court."); Jiron v. United States, 118 Fed. Cl. 190, 198-99 (2014)

("It is well settled that the United States is the only proper defendant in the United States Court

of Federal Claims." (quotation omitted)).

Mr. Krukowski's third notice seeks removal ofhis pending civil action in district court to

thiscourt,baseduponthreegrounds:1)28u.s.c.92254;2)theRehabilitationAct;and3)the

Prison Litigation Reform Act. Compl. at 3. None ofthese statutes is a substantive source oflaw

giving rise to a right to money damages from the United States, and none provides grounds for

transferring Mr. Krukowski's existing civil action to this court.

The first statute, 28 u.s.c. $ 2254,is another habeas corpus statute, addressing petitions

by those persons held on the basis ofajudgment issued by a state court which that person asserts

is in violation ofthe constitution, federal law, or a treaty. Again, the court ofFederal claims is

not listed among the courts having the power to grant the wdt. 2g u.s.c. $ 225a@). Moreover,

the statute does not provide any basis for transferring a pending civil action to this court. See id.

And, as noted above, a writ of habeas colpus is outside the court's jurisdiction. Ledford, 297

F.3d at 1380-81.

The Rehabilitation Act is a law that was originally enacted in 1973, ard it addresses

vocational rehabilitation and employment ofthose with disabilities. See Rehabilitation Act of

1973, Pub. L.93-112,87 stat. 355. It has subsequently been amended and is codifred at 29

U.S.C' $$ 701 et seq., but it does not contain any provision regarding the transfer ofa civil case

to the court of Federal claims. See 29 u.s.c. $g 201 et seq. Further, the court..does not have

jurisdiction to review claims brought under the Rehabilitation Act of 1973.,, saseman v. United

States, 82 Fed. Cl.367,371 (2008).

The final statute cited by Mr. Krukowski, the Prison Litigation Reform Act, amended a

number ofstatutory provisions regarding federal litigation by prisoners. See Prison Litigation

Reform Act of 1995, Pub. L. 104-134, $$ 801-10, 110 Stat. 1321. It did not provide aright to

money damages for purposes of Tucker Act jurisdiction, nor did it provide for the transfer ofa

civil action to this court.2 See id.

Finally, Mr. Krukowski's last notice also fails to provide any basis forjurisdiction in this

court. It only addresses petitions apparently pending before the Supreme Court ofNevada and

does not make any allegations against the United States.

In short, it is difficult to construe Mr. Krukowski's notices as forming a new complaint in

this court. To the extent they can be so construed, the "complaint" fails to make any allegations

ofa right to money damages from the United States based on a separate source of substantive

law. Rather, the notices relate to other pending court actions, seek removal to this court, and seek

a writ ofhabeas corpus, without pleading a basis forjurisdiction in this court. Because Mr.

Krukowski fails to allege the existence ofany basis for Tucker Act jurisdiction, the Court must

dismiss his complaint. Accordingly, the govemment's motion to dismiss is GRANTED and the

complaint is DISMISSED without prejudice.

CONCLUSION

For the reasons set forth above, the govemment's motion to dismiss for lack ofsubiect

maner jurisdiction is GRANTED and Mr. Krukowski's complaint is DISMISSED without

prejudice. The Clerk is directed to enter j udgment accordingly. Each party shall bear its own

costs.

IT IS SO ORDERED.

tL/4,L-

ELAINE D. KAPLAN

Judge

' The Act did, however, amend the in forma pauperis statute, 28 U.S.C. $ 1915, which imposes

specific requirements on prisoners attempting to institute litigation without paying fees. Here,

Mr. Krukowski has neither filed an application to proceed in forma pauperis nor has he paid the

filing fee. See Docket. This in and of itself provides a sufficient basis to dismiss his complaint.

See Brown v. United States, 88 Fed. CL.795,798 (2009); see also 28 U.S.C. g 1926; Rute

77.1(c) ofthe Rules ofthe Court ofFederal Claims.