Fisher v. United States

3Jn tbe Wniteb ~tates ~ourt of jfeberal ~laims FILED

No. 17-1971C (Pro Se)

(Filed: March 15, 2018 I Not For Publication) · MAR 1 5 2018

U.S. COURT OF

FEDERAL CLAIMS

) Keywords: Pro Se Plaintiff; Subject

DARREL R. FISHER ) Matter Jurisdiction; RCFC 12(b)(l);

) Statute of Limitations; 25 U.S.C.

Plaintiff, ) § 2501.

)

v. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

_ ______ _______ )

Darrel R. Fisher, Butner, NC, prose.

Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, DC, with whom were Lisa L. Donahue, Assistant

Director, Robert E. Kirschman, Jr., Director, and Chad A. Readier, Acting Assistant

Attorney General, for Defendant.

OPINION AND ORDER

KAPLAN, Judge.

Plaintiff Darrel R. Fisher, representing himself prose, filed a ~omplaint in this

Court on December 18, 2017. Docket No. 1. The government has moved to dismiss Mr.

Fisher's complaint for lack of subject matter jurisdiction. Docket No. 8. For the reasons

discussed below, the government's motion is GRANTED, and Mr. Fisher's complaint is

DISMISSED without prejudice. ·

BACKGROUND

Mr. Fisher's handwritten complaint is difficult to decipher. See id. As best the

Comi can tell, Mr. Fisher alleges that the government has "fail[ed] to follow the rules of

Government," including Article I, section 8 of the U .S. Constitution. Id. at 1. In

pa1iicular, Mr. Fisher complains that that a number of individuals trespassed on his

property in 1997 and 1998. Id. at 1, 4; see also Docket No. 5 at 1 (proposed amended

complaint). 1 Perhaps in connection with this allegation, he asserts that "the federal

1

The ~ourt has received a number of documents from Mr. Fisher that purport to amend

his complaint. Thus, on January 11 , 2018, the Court received a handwritten document

from Mr. Fisher that failed to comply with several of the Court's rules regarding filings.

7016 3010 DODO 4308 4454

government's possession of [his] personal property, stolen ... by armed federal

employees" constitutes a "taking of private property for public use." Comp!. at 4. Mr.

Fisher's amended complaint also references a "paper easement," though how this

allegation connects to his other allegations is unclear. See Docket No. 5 at 4.

Beyond his allegations related to personal property, Mr. Fisher alleges that the

federal government "used [the] highway trust fund to pay the cops to patrol every mile of

US highway daily," id. at 1 (quotations omitted); and claims that "[t]he subsidized

cops ... accused [him] of speeding," id. at 4. He also appears to allege that he was

"brutally batter[ed]" and "struck in the face," perhaps in connection with being stopped

while speeding, and that he was "illegally kidnapped by the federals." Id. at 4-5.

Mr. Fisher's complaint also contains allegations regarding his employer or former

employer, Copp Transportation. Id. at 3. As best the Court can tell, he alleges that Copp

Transportation failed to pay him an agreed-upon rate for certain work he performed for

them over the course of three years. See id.

Based on these allegations, Mr. Fisher states that he is entitled to damages in the

amount of"$17,250,500.00 more or less" for "losses sustained at the hands of [the]

government since Feb. 6, 1997." Id. at 1.

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 of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163

(Fed. Cir. 2011). However, the court may also "inquire into jurisdictional facts" to

determine whether it has jurisdiction. Rocovich v. United States, 933 F.2d 991, 993 (Fed.

Cir. 1991). It is well established that complaints filed by prose plaintiffs (as is this one),

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

Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even prose plaintiffs must persuade the

See Docket Nos. 5--6. The Court elected to treat the document as a motion to amend Mr.

Fisher's complaint, and warned Mr. Fisher that future non-compliant filings might be

returned to him unfiled. See Docket No. 6. Mr. Fisher has since filed another motion to

amend his complaint. Docket No. 7. These motions are GRANTED, and the Court has

accounted for the allegations contained therein to the extent it can make them out.

Further, on January 17, 2018, and February 6, 2018, the Court received additional non-

compliant filings from Mr. Fisher. The documents are largely incomprehensible and

appear to describe generalized grievances against a variety of state and local officials.

Because Mr. Fisher failed to comply with the Court's rules regarding filings, and because

the Court would lack jurisdiction over such claims in any case, see United States v.

Sherwood, 312 U.S. 584, 588 (1941), the Clerk is directed to return these documents to

Mr. Fisher unfiled.

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Court that jurisdictional requirements have been met. Bernard v. United States, 59 Fed.

Cl. 497, 499 (2004), affd, 98 Fed. App'x 860 (Fed. Cir. 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 of

Congress 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. § 1491(a)(l) (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, 424 U.S. 392, 398 (1976). Therefore, a plaintiff seeking to invoke the

court's Tucker Act jurisdiction must identify an independent source of a substantive right

to money damages from the United States arising out of a contract, statute, regulation or

constitutional provision. Jan's Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d

1299, 1306 (Fed. Cir. 2008).

Applying these standards, the Court concludes that Mr. Fisher's entire complaint

falls outside of the Court's jurisdiction. In the first place, the Court lacks jurisdiction over

claims against any defendant other than the United States. See Sherwood, 312 U.S. at 588

("[I]fthe relief sought is against others than the United States the suit as to them must be

ignored as beyond the jurisdiction of the court.") The court thus has no jurisdiction over

claims Mr. Fisher may be asserting against private individuals or companies.

It also appears that many of Mr. Fisher's claims fall outside of the Court of

Federal Claims's six-year statute oflimitations, 28 U.S.C. § 2501, which is jurisdictional

in nature. Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008); Martinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane).

Further, the Tucker Act expressly excludes claims "sounding in tort" from the

Court's jurisdiction. See 28 U.S.C. § 1491(a)(l); Keene Com. v. United States, 508 U.S.

200, 214 (1993). The Court thus has no power to hear claims for assault, battery, trespass,

conversion, or similar torts. Likewise, the Court lacks the power to grant relief under

federal civil rights statutes such as 42 U.S.C. § 1983. See Johnson v. United States, No.

97-5107, 1998 WL 39162, at *2 (Fed. Cir. Feb. 3 1998) (per curiam); Lowe v. United

States, 76 Fed. Cl. 262, 266 (2007) ("[T]he United States Court of Federal Claims does

not have jurisdiction over claims arising under 42 U.S.C.§ 1983 and may not

adjudicate ... claims arising thereunder."); see also Brown v. United States, 105 F.3d

621, 624 (Fed. Cir. 1997) (holding that claims asserted against federal agents under

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971), "lie outside the jurisdiction of the Court of Federal Claim" because "[t]he Tucker

Act grants the Court of Federal Claims jurisdiction over suits against the United States,

not against individual federal officials"). Thus, to the extent Mr. Fisher alleges that he has

been deprived of rights under color of law by state and/or federal law enforcement

agents, the Court lacks jurisdiction to rule on such claims.

To the extent the Court can understand its substance, Mr. Fisher's claim based on

Article I, section 8 of the Constitution must also be dismissed, as the provisions found in

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that section of the Constitution are not money mandating. See Struck v. United States,

Nos. 15-788, 15-822, & 15-831, 2015 WL 4722623, at *2 (Fed. CL Aug. 7, 2015).

Finally, although claims under the Fifth Amendment' s Takings Clause generally

fall within the Court's jurisdiction, Mr. Fisher has not provided the Court an intelligible

factual background upon which to assess his takings claim. Dismissal for lack of subject

matter jurisdiction is appropriate under such circumstances. See Steel Co. v. Citizens for

a Better Env't, 523 U.S. 83, 89 (1998) (holding that " [d]ismissal for lack of subject-

matter jurisdiction because of the inadequacy of the federal claim is proper ... when the

claim is 'so insubstantial, implausible, foreclosed by prior decisions . .. or otherwise

completely devoid of merit as not to involve a federal controversy'" (second alteration in

original) (quoting Oneida Indian Nation ofN.Y. v . Cty. of Oneida, 414 U.S. 661 , 666

(1974))). Further, Mr. Fisher's takings claim appears to fall outside of the statute of

limitations, which (as noted) presents an independent jurisdictional bar. 2

In short, the Court lacks jurisdiction over all of Mr. Fisher's claims. Accordingly,

his complaint must be DISMISSED without prejudice.3

CONCLUSION

For the reasons discussed above, the government's motion to dismiss is

GRANTED and Mr. Fisher's complaint is DISMISSED without prejudice. The clerk

shall enter judgment accordingly. Each side shall bear its own costs.

IT IS SO ORDERED.

ELAINE D. KAPLAN

Judge

2 Even ifthe Court had jurisdiction over Mr. Fisher's takings claim, that claim would be

subject to dismissal on the merits under Rules of the Comi of Federal Claims 12(b)(6) for

failure to plausibly state a claim upon which relief may be granted. See Ashcroft v . Iqbal,

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2008)).

3Mr. Fisher has also filed a "Motion Requesting Guidance to Issue Subpoena." Docket

No. 9. In light of the Court' s conclusion that it lacks jurisdiction over Mr. Fisher' s

complaint, that motion is DENIED as moot.

4