Bess v. United States

Opinion

llrt\t @nfte! btutts [,surt of /eDrrat @tsimd No. l9-1634C

(Filed: Novemb er 12,2019)

* :r * +: * :t {< * * * {. * + * ,t *++********** r( *** !* * ,r * * KEVIN BESS,

Plaintiff,

Pro Se Plaintiff; Sua Sponte Dismissal; Subject Matter Jurisdiction; RCFC l2(hX3); Proper Defendant; Civil Rights THE LINITED STATES, Claims; In Forma Pauperis

Defendant. * *************r***** :t * :r * jt ** :t * !* + :r,* * * * * *

Kevin Bess, Charleston, MO, pfo SS.

Sonia W. Mumhy, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Chief Judge

Plailtlff Kevin Bess, proceeding prq se in this matter, alreges that corrections .the -Missouri -.

Department of co'ections

officers at

violated his civil rights. Mr. Bess seeks monetary damages and various other forms ofreliel and he has also filed formapaupeqa. As explained below, the court lacks jurisdictron to an application to pro"..J i'

consider Mr. Bess,s claims.

Thus, without awaiting a response from defendant, the court grants Mr. Bess's application to proceed in forma oauperis and dismisses his complaint.

I. BACKGROUND

Mr. Bess is currently incarcerated at the Southeast Correctional Center in Charleston,

Missouri, a facility of the Missouri Department of corrections. Ex., ECF No. 1-2 at 7. He filed his complaint on october 21,2019. Documents filed with the complaint reflect that Mr-Bess worked in food service at the prison and was alrowed a shower at the end of his shift. However, Mr. Bess alleges that a conections officer at the prison a owed him to shower.,onry for a few minutes," compl. l, a limitation that he maintains violates his civil rights, id. at 3. 'r\4r. Bess does not claim that this alleged violation occurred more than once.

A Conduct violation Report dated January 17,201g, was fired along with the complaint.

Ex', ECF No' l-2 at 7 ' The report indicated that vr. iess retumed from his food service work at approximately l0: I 0 AM on that date, and subsequentry entered the shower. Id. It further stated that although Mr. Bess "had been . . . giuen nu-erous iirectives over the intercom to exit the

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shower and lockdown starting at 10:31 AM," he did not exit the shower until approximately 10:49 AM. Id. Mr. Bess was cited for "fail[ure] to comply with an order." Id. at 7-9.

Mr. Bess seeks relief in a variety of forms. For monetary reliel he seeks a lump sum of $90,000.00. Id. at 1 I . He also seeks "[t]o be released [from prison] within the next year." Id. Finally, Mr. Bess appears to seek the following as part ofhis compensation: (1) ideniification documents, such as a driver's license, birth certificate, and social iecurity card; (2) car registration, with license plates; (3) a one-year reservation at a St. Louis hotel; (4) a car; (5) various items of clothing and bedding; and (6) suitcases. Id.

II. LEGALSTANDARDS

A. Pro Se Plaintiffs

Pro se pleadings are "held to less stringent standards than formar pleadings drafted _ lawyers" and are "to be liberally pardus, by

construed." Erickson v. 55r u.s. s9, 9I (2007) (per curiam) (intemal citation omitted). However, the "leniency afforded to a prq_lg litigant with

respect to mere formalities does not relieve the burden to meet jurisdictio;al require-ments.,'

Minehan v. United States, 75 Fed. cl.249,253 (2007); accord Henke v. United states,60 F.3d 795'799 (Fed. cir. i995) ("The fact that [the prainriff] u"t"a Ep-qs in th" a*ting oflri, complaint may explain its ambiguities, but it does not excuse its failures, if such ihere be.',).

In

other words, a pro se plaintiffis not excused from his burden ofproving, by a preponderance of

that the court possesses jurisdiction. See Banks v. united stales rui p'.sa n6g, :]iq.l*, , 2014)(citingRevnoldsv.army&RirForceExch.serv.,846F.2d746,74g(Fed.cir.

1277

tl:1'9t 1988).

B. Subject Matter Jurisdiction

.wlether the court possesses jurisdiction to decide the merits ofa case is a..threshold matter.". Steel co. v. citizens for a Better Env't, 523 u.s. g3, g4-g5 (199g).

Subject matter

jurisdiction cannot be waived or forleited because it.,involves a court's power to h.u. u cur".', united states v. cotton, 535 u.s. 625,630 (2002). "without jurisdiction the court cannot

proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exrst, the only function_remaining to the court is ihat ofannouncing the fact and dismissing the cause.,, Ex oartg McCardle,74 U.S. (7 wall) 506, 514 (1868). Therefore, it is,,an inflexible threshord

matter that must be considered before proceeding to evaluate the merits of a case.,, Matthews v.

United States. 72 Fed. cr. 274.2i8 tzooor, asard K.-con etae. sv... rn.. u. unii.a F'3d 1000, 1004-05 (Fed. cir. 20r5). eim.. putty, oittt*urr sua s;E;t

sponte, may challenge the courl's subject matter jurisdiction at any time. eitauqn u. y a H Co.p.i46 U.S. 500,;06

(2006); see also Jeun v. United states, rza r"a. a62oe-to poi-; lcottecting cases).

In determining whether subject matter jurisdiction exists, the court generally,,must accspt as true all undisputed facts asserted in the plaintiffs complaint and &aw all reasonable infavor of rhe plaintiff.' Trusted Integration. Inc. v. united States, 659 F.3d ll!:"*": I163 (Fed. cir. 2011). However, th" .ou.t h^ 1r 59,

ni-*bjlt.*uer jurisdiction over frivorous

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claims. Moden v. united States, 404 F.3d 1335, 1340-41 (Fed. cir. 2005). For example, there is no subject matter jurisdiction over claims that are "so insubstantial, implausible, foreClosed by prior decisions . . . , or otherwise completely devoid of merit as not to involve a federal controversy." Id. at 1341 (citations omitted). If the court finds that it lacks subiect matter jurisdiction over a claim, Rule 12(h)(3) of the Rules of the United States Court of Federal Claims

(.'RCFC') requires the court to dismiss that claim.

C. The 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 consenrs to be sued." United states v. Sherwood,312 u.s.5s;,5g6 (1941). The waiver of immunity "may not be infened, but must b- unequivocally ."pr.rr"i.,, Unit.d

States y. white Mountain Apache Tribe, 537 u.s. 465,472 (2003) (intemal quotation m.arks

omitted).

The Tucker Act, the principal statute goveming the jurisdiction ofthis . 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, ort expiess or implied conftact with the united stares. 2g u.s.c. g 1ag1(a)(l)

lzbts;; whrte l,tountain, s37 u.S. at 472. However, the Tucker Act is merely a jurisdiciional statute and "does rrot create any

substantive right enforceable against the United States for money damages.,, united st;tes v.

TEs:&stan' 424 u.s. 392, 298 (1976). Instead, the substantive right must law, such as a "money-mandating constitutional provision, statute, or ufp.u. in *Jt rource of "r

regulation, the violation of which supports a claim for damages against the united states.,, James vl caldera, 159 F.3d 573,

580 (Fed. Cir. 1998).

III. DISCUSSION

Under a liberal construction of Mr. Bess's prsie complaint, Mr. Bess alleges that his

civil rights were violated by a state entity. Becausi the court of Federal Claims Jlearly lacks

jurisdiction over this claim, Mr. Bess's complaint must be dismissed.

A' The united states Is the onry proper Defendant in the court of Federar Craims

Although the court has liberally construed the compraint in the light most favorable to

Mr' Bess, thecrux of the allegations aie lodged against the Missouri Dep-artment of Correctlons.

However, in the court of Federal claims, ',tt"

notv proper defendant . . . is the United Stares, not its officers, nor any orher individuar." stephenson-v.

united states, 5g Fed. cl. 1g6, r90 (2003);

ac-cord RCFC l0(a). Because "th. unit"d stut"rlGlf i, the only proper defendani in the court ofFederal Claims' this court lacks jurisdiction "over any claims alleged against states, localities, state and local govemment entities, or state and local government ofFrcialiand

An*rren vl Llrrited States, 117 Fed. cl. 330, 331 lzoi+1. lnother words, ,,ifthe".ptoy""r."

r;lieisought [in

CoYrt of Federal Claimsl is against otherthan tir" unlt"o lhe States the suit as to them must be rgnoreo as beyond the Jurisdiction ofthe court."

sherwood, 312 u.s. at 5gg. Accordinslv.

4

Mr. Bess complains of improper conduct by parties other than the United States federal because govemment, this court lacks jurisdiction over this claim, and it must be dismissed.

B. The Court of F ederal Claims Lacks Jurisdiction Over Civil Rights Claims

To the extent that Mr. Bess asserts civil rights violations, his claim is outside the reach of this court's Tucker Act jurisdiction. First, the Court of Federal Claims is not a federal district court. Ledford v. United States,297 F.3d1378, 1382 (Fed. Cir.2002); see also Lightfoot v. Cendant Mortg. Com., 137 S. Ct. 553, 563 (2017) (distinguishing between the,.Court of Federal Claims" and "federal district courts"). Second, only federal district coufts possess jurisdiction to entertain claims alleging civil rights violations. See. e.g., Jones v. united states, 104 Fed. cl. 92, 98 (2012) (explaining that the Court ofFederal Claims has no jurisdiction over claims based on, among other causes of action, alleged "violations of . . . civil rights"); Marlin v. united states, 63 Fed. CI.475, 476 (2005) (explaining that Bivens claims and claims alleging violations of42 U.S.C. $$ 1981, 1983, and 1985 must be heard in federal district courts). In short. the court must dismiss any civil rights claims asserted by Mr. Bess.

IV, APPLICATION TO PROCEED IN FORMA PAUPERIS

As noted above, Mr. Bess filed, concurrent with his complaint, an application to proceed in forma pauperis. courts of the united States are permitted to waive the prepayment oi payment of filing fees and security under certain circumstances.l 2g U.S.C. 1915(a)(l).

$

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 beliefthat they are entitled to redress.!! Furlher, prisoners must file,,a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint . . . obtained from the appropriate official of each prison at which the prisoner is or was confined," id. g 1915(a)(2), a requirement that can be satisfied in the court ofFederal claims by executing and filing a "Prisoner Authorization" that authorizes the custodial facility to send the court a copy ofthe prisoner's trust fund account statement. Finally, pursuant to what is known as the three-strikes rule, coleman v. Tollefson, 13 5 s. ct. l7 59, l7 61-62 (201 5), if a prisoner has filed three or more suits or appeals that were dismissed as frivolous, malicious, or failing to state a claim upon which relief can be granted, he or she is barred from initiating further suits or appeals without firsr paying the filing fee, unless he or she is "under imminent danger of serioui physical injury.,' 28 U.S.C. g 19ls(g).

Mr. Bess has substantially satisfied the requirements set fofih in 2g u.S.c. g 1915(a) and does not appear to have three strikes as described in 28 U.S.c. 19l5(g). The court therefore $

grants Mr. Bess's application to proceed in forma pauperis and waives his prepayment ofthe

I while the court of Federal claims is not generally considered to be a,,court of the United States" within the meaning of title 28 of the United States Code, the court has iurisdiction to adjudicate applications to proceed in forma pauperis. see 2g u.s.c. 25031d;

$ ldeeming the

court of Federal claims to be a "court of the United States" for purposes or zs'u. i.c. g l91 5).

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filing fee. Notwithstanding the court's waiver, prisoners seeking to proceed in forma pauperis are required to pay, over time, the filing fee in full. Id. $ 1915(b). Thus, Mr. Bess 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. See id. $ 1915(bX1). Thereafter, Mr. Bess shall be required to make monthly payments of twenty percent ofthe preceding month's income credited to his account. See id. 1915(b)(2). The $

agency having custody of Mr. Bess shall forward payments from his account to the clerk ofthe Court ofFederal Claims each time the account balance exceeds $10 and until such time as the filing fee is paid in full. See id.

V. CONCLUSION

The Court ofFederal Claims lacks jurisdiction over claims involving civil rights and claims against defendants other than the United States. Therefore. the court has no iurisdiction to consider any aspect of Mr. Bess's complaint.

Accordingly, Mr. Bess's complaint is DISMISSED WITHOUT pREJUDICE for lack of subject matter jurisdiction. In addition, although the court GRANTS Mr. Bess's application to proceed !g;lorm4aagp91ig, it directs Mr. Bess to pay the filing fee in full pursuant to 2g u.S.c. $ 1915(b), as described above. No costs. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.