PARKER v. USA, No. 1:2011cv00314 - Document 7 (Fed. Cl. 2011)

Court Description: UNPUBLISHED MEMORANDUM OPINION and FINAL ORDER granting 4 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Susan G. Braden. (dls) Copy to parties.

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FtF i1 --I .: :. is kt;fi# i x Irt[ 'lTitl IJn tbe @nite! $.tstes @ourt of feDers[ @lsfms No. 11-314 Filed: November 2,2011 :i*'i**,1.:t ********* *** *r.'******* ******** FILED *1.{' NOv 2 2011 U.S, COURT OF FEDERALCLAIMS DONALD PARKER. Plaintiff, pro se, THE I.INITED STATES, Defendant. * * * * *:+ *:t*:1.:t:i * * * * ** + * * * * * * ** * * * * ** * ** * ** Donald Parker, New Orleans, Louisiana, Plaintiff, pro se. Steven J. Gillingham and christopher A, Bowen, united states Department of Justice, Division, Washington, D.C., Counsel for the Govemment. civil MEMORANDUM OPINION AND F'INAL ORDER BRADEN, "/zdge. I. ''' BACKGROTJND AND PROCEDURAL HISTORY DISTRICT COURTS IN LOUISIANA. IN THE UNITED STATES On Aprit 25,2007, Donald L. Parker and Lakiesha Parker lcollectively, the ,.parkers,,) filed a Complaint in the United States District Court for the Eastem District of Louisiana ("Eastem District court"), alleging that several defendants stole their money via a private real estate transaction. See Parker v. Lagniappe Realty,No. 07-cv-2656, Doc. No. l6 (8.D. La. July 24,2007) ("Parker l'). On July 24,2007, the Eastem District Court dismissed the case, without prejudice, for lack of subject-matter jurisdiction, because the Complaint did not present a federal question under 28 u.s.c. $ 1331, nor did the parties satisfy the diversity requirement under 2g U.S.C. $ 1332. Id. at5-6. On February 7, 2008, the Parkers filed a second Complaint in the United States District for the Western District of Louisiana against the same defendants and three others. This Court Complaint alleged the same claims as the prior suit, but also included several federal causes of action, i.e., securities fraud, conspiracy claims, and mortgage fraud claims. See Parker v. Blake, No. 08-cv-184, Doc. No. 52 at 3-8 (W.D. La. Ang.29,2008) ("Parker 11'). Service appears not to have been made on any of the defendants, although one defendant entered a notice of appearance. Id. at3. On June 17,2008, Magistrate Judge James D. Kirk denied the Parkers' motion for service on the other defendants, because the Parkers had not followed the court's instructions to mail waivers of service. See Parker II, No. 08-cv-184, Doc. No.29 (W.D. La. June 17,2008). On August 29,2008, the Honorable James T. Trimble, Jr., of the Westem District of Louisiana, also dismissed this case, with prejudice, under FBo. R. Clv. P. l2(bx6), because the Parkers' federal-question claims failed to state any cognizable claims. See Parker II, No. 08-cv184, Doc. No. 52 at 5-9. The United States District Court suggested that the Parkers consider filing their case in state court and cautioned that refiling in federal court likely would result in future dismissals . Id. at9-10. On July 22,2008, the Parkers filed another suit in the Eastern District Court of Louisiana against Robert H. Shemwell, Clerk of the Westem District of Louisiana, and Kathy Kiefer, a Docket Clerk in that same court. ,See Parker v. Shemwell, No. 08-cv-3987, Doc. No. 1 (E.D. La. Jlly 22,2008) ("Parker III'). This complaint alleged rhat Mr. Shemwell and Ms. Kiefer did not properly scan the retum receipts of the complaints and summons that the Parkers alleged were mailed in Parker II, resulting in a wrongful .recommendation by Magistrate Judge Kirk to dismisstheJuly22,200SParkerIIIComplaint.tId.at3-4;seealsoparkerIII,No.08-cv-1622, Doc. No. 24 at 2 (W .D. La. Jat 28,2009) (discussin g the J.u/,y 22,2008 complaint). On October 27,2008, the Eastem District Court transfened the Parker III case to the Westem District Court. Parker III,No. 08-cv-3987, Doc. No. 14 (E.D. La. Oct.27,2008). See on January 28,2009, the Honorable Tom Stagg dismissed the July 22, 200g suit for failure "to state a federal claim under the broadest reading." Parker III, No. 08-cv-1622, Doc. No.24 at 6 (W.D. La. Jalrr.28,2009).' on June 15, 2009, the Parkers filed a notice of appeal in the United States court of Appeals for the Fifth circuit. .see Parkr v. shemwell, No. 09-30527, Doc. No. 51917261 at 2 I Judge Trimble, however, dismissed the complaint in parker 11 not because of the failure to perfect service, but because the Parkers failed to state any valid federal claim. .See Parker II, No. 08-cv-184, Doc. No. 52 aI 5-9. 2 The Parkers had alleged rhat the Parker lll defendants' actions were in violation of 18 u.s.c. $ l70l (2006) (tampering with the mail), 18 u.s.c. g 1702 (2006) (obstruction of mail conespondence), and 18 U.S.C. g 371 (2006) (conspiracy). Id. at 4-6. (5th Cir. Sept. 3, 2009) ("Parker IIr). On September 3,2009, the United Srates Courr of Appeals for the Fifth Circuit dismissed the appeal as untimely.r II. PROCEDURAL HISTORY IN THE UNITED STATES COURT OF FEDERAL CLAIMS. On May , 2011, Donald Parker filed a Complaint in the United States Court of Federal claims ("compl.") against the united states Department of Justice, Judge Trimble, clerk of Court Shemwell, and Docket Clerk Kiefer. Compl. at Specifically, the May 17 , 2001 Complaint alleges that Judge Trimble violated the Fourteenth Amendment "when he ienored the Memorandum order by United States Magistrate Judge James D. Kirk." Id. at 4. iaddition, Judge Trimble did not follow an unidentified order by the appellate court when he dismissed the Parkers' claim for lack of subject-matter jurisdiction. 1d 17 L The May 17,2011 complaint also alleges that Judge Trimble violated 42 u.s.c. g l9g5 when he "dismissed the claim on the behalf of his friend in Natchitoches, La," i.e., in the August 29,2008 order, concluding that "service has not been perfected as to all defendants." Id. ar 5. In addition, the complaint alleges that the parkers perfected service, but the clerks in the westem District ofLouisiana "conspired together in not scanning the documents [proving proper servicel to the system." Id. at 5-6. If they had performed their duties, a default judgment would have been issued against those defendants who did not app eu. Id. at 6. The May 17,2011 Complaint also alleges that Defendants' conduct violated the Due Process clause of the Fifth and Fourteenth Amendments. Id. at 3-s. Finally, the complaint alleges violation of the Good Behavior Clause of Article III of the United Staies Constitution, describing the behavior of Judge Trimble, Clerk of Court Shemwell, and Docket Clerk Kief'er as "unprofessional." Id. at 7. on July 18, 2011, the Govemment filed a Motion to Dismiss ("Gov,t Mot."), pursuant ro RCFC Rules 12(a) and 12(bx1), rogether with Exhibits (,,Gov't Mot. Ex. 1-5,') higfifighting the disposition of the Parkers prior larvsuits. on August 15,2011, the parkers filei a -Response opposing the Motion to Dismiss ("P1. Resp."). on August 24,2011, the Government filed a Reply ("Gov't Rep."). III. JURISDICTION. jurisdiction of the United States Court ofFederal Claims is established by the Tucker AcL see 28 u.s,c. $ i491 (2006). The Tucker Act authorizes the court ..to render judgment upon 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. $ 1a9l(a)(l) (2006). The 3 The Parkers' appeal was required to be filed by March 30,2009, i.e., within sixtv davs Judge Stagg's January 28,2009 judgment. Id. at l-2 (citing Fao. R. App. ir. of the entry of 26(a)(2)). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. . . . [T]he Act merely confers jurisdiction upon it whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, or executive agency regulation that provides a substantive right to money damages. see Fisher v. United states,402 F.3d 1167, 1172 (Fed' Cir. 2005) (en banc) ("The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages."). The burden of establishing jurisdiction falls on the plaintiff. see FWpBS, Inc. v. Dallas, 493 u.s. 215, 231 (1990) (holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction); see a/so RCFC 12(bX1). The IV. jurisdictional defects in the May l7,20ll Complaint are discussed below. STANDARD FOR ANALYSIS OF THE GOVERNMENT'S MOTION. A. Standard For Decision On Motion To Dismiss pursuant To RCFC l2(bxl). A challenge to the United States Court ofFederal Claims' "general power to adjudicate in specific areas of substantive- l1y ' . . . is properly raised by a [Rule] 12(bX1) motion[.]" Palmer v. united states,168 F.3d 1310, 1313 (Fed. cir. 1999); see oi"o n-Ec'riiui(l) (.Evlry defense, in law or fact, to a claim for relief in any pleading, whether a claim, countiictaim, oi third-party claim, shall be asserted in the responsive pteading thereto if one is required, excepr that the following defenses may at the option of the pleadei be made by motion: (l) lack of jurisdiction over the subject mafter[.]"). When consideiing whether to dismiss an action tor tack of subject matter jurisdiction, the court is "obligated to assume all factual allegations of the complaint to be true and to draw all reasonable inferences in plaintiffs favor." Hinke v. United states, 60 F.3d 795, 797 (Fed. Cir. 1995). Nonetheless, the plaintiffbears the burden ofestablishing jurisdiction by a preponderance of the evidence. see Reynolds v. Arny & Air Force Exch. seii., g46 F.2d, %a,'lci (Fed. cir. 1988) ("[o]nce the [trial] court's.subjecr matter jurisdiction put in quesiion . . . . 1tr," [is] plaintiffl bears the burden of establishing subject matter jurisdiition by a pieponderance of the evidence."). B. Pro Se Litigants, The pleadings of a pro se Plaintiff are held to a less stringent standard than those of litigants represented by counsel. see Hughes v. Rowe,449 u.s. s, (holding that pro se lresoy complaints, "however inartfully pleaded," are held to .,less stringent standard, ihan fbrmal pleadings drafted by lawyers" (citations omitted) (intemal quotation marks omitted)). Indeed, it has been the tradition of this court to examine the record "to see if [a pro se] plainti#has a cause of action somewhere displayed." Ruderer v. united states,412F.rd 12g5, izsz qct. cl. 1969). l Nevertheless, while the court may excuse ambiguities in a pro se Plaintiffs complaint, the court "does not excuse [a complaint's] failures." Henke,60F.3dat799. V. DISCUSSION. A. The Government's July 18, 2011 Motion To Dismiss The May 17, Complaint For Lack Of Subject-Matter Jurisdiction. 20ll The Govemment argues that the court does not have jurisdiction to adjudicate claims alleged in the May 17,2011 Complaint because they fail to cite a federal law or constitutional provision mandating money damages. Gov't Mot. at 7. Although the May 17,2011 complaint cites the Fourteenth Amendment and arguably alleges a claim under the Due Process Clause of the Fifth Amendment, neither ofthese constitutional provisions obligates the federal goverrment to pay money damages. Gov't Mot. at 7-9. Likewise, the May 17, 2011 complaint's reference to the First Amendment ooes nor provide a basis for the court to award money damages. see (Jnited states v. Connollv. 716 F .2d. 882, 887 (Fed. cir. 1983) (holding that the First Amendment does not mandate money damages;. . As for the May 17 , 2011 complaint's citation of 42 u.s.c. g 19g5, only United States Dishict courts have original jurisdiction to hear violations thereof. see 2g U.s.c. g 1343(a) (2006) ("The district courts shall have original jurisdiction of any civil action authorizJd by law to be commenced by any person [under section 42 u.s.c. 1915.]). since the court is not a $ federal "district court," it does not have jurisdiction to adjudicate such claims. See Marlin v. united states,63 Fed. cl. 475,476 (2005) ("trlhe court does not have jurisdiction to consider civil rights claims brought pylyry to 42 U.s.c. $$ 1981, 1983, or l9l5 because jurisdiction over claims arising under the civil Rights Act resides exclusively in the district courts.,'). To the extent that Plaintiff alleges claims related to or arising out of the actions of the of Louisiana, tle court does not have such authority. Joshuav. united states, 17 F.3d, 3'18,3g0 (Fed. cir. 1994). Moreover, the plaintiff failed to appeal.his cases to the appropriate court of appeals in a timely manner. Gov't Mot. at 9 (citing united States District courts thel]nitedSlelesCourtofAppealsfortheFifthCircuit'sdismissaloftheparkers'caseinparker No. 09-30527, Doc. No. 5191726D. /( _ of Accordingly, the Govemment moves that the May r7, 2o1r compraint be dismissed for lack subject matter jurisdiction. Gov't Mot. at B. The Plaintiffs August lS,20ll 9. Response, Plaintiff responds that Rule 60(a) of the Federal Rules of Civil procedure allows fbr "corrections Based on clerical l\4istakes; oversight and omissions." pl. Resp. (citinf Feo. R. ctv. P. 60(a)). Specifically, plaintiff argues thit ,,[i]r's not my fault ttrat ttre ictertlsl aian't follow the Order from the Fifth Circuit . . . in claim 08-cv-184." Pl. Resp.a Plaintiff also cites Conley v. Gibson,355 U.S. 41 (1957), for the proposition that a court should not dismiss a complaint for failure to state a claim, unless the plaintiff can prove no set of facts warranting relief. Id. at 45-46 ("In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.").' C. The Government's August 24, 2011 Reply. The Govemment replies that Plaintiff s response fails to address the fact that the court lacks jurisdiction to adjudicate claims under the First Amendment, Fourteenth Amendment, Due Process Clause of the Fifth Amendment, or 42 U.S.C. 1985. Gov't Rep. at 2. $ As to Plaintiffs citation to Rule 60(a) of the Federal Rules of Civil Procedure, the motion thereunder, is based on a clerical error must be filed with the relevant federal District Coun, Le. the United states District court for the westem District of Louisiana. Gov't Rep. at 2 (citing Joshua, 17 F'3d at 380 ("[T]he Court of Federal Claims does not have jurisdiction to review the decisions of district courts or the clerks of district courts relating to before those iroceedings courts.")). The Govemment states that it does not know what Plaintiff argues when stating that,,the Fifth circuit settled the $78,000,000.00 asked in claim 0g-cv-184." Gov't Rep. at (q"uoting pl. 3 Resp.). The record does not show that Plaintiff filed a notice of appeal in tire Oistrict'court's case No. 08-cv-184 (Parker II) ro the unired states court of Aiieals for the Fifth circuit. Gov't Rep. at 3. Finally, Plaintiffs reliance on Conley is misplaced because that case dealt with failure to jurisdiction. Gov't Rep. at 3. when jurisdiction is challenged, a plaintiff must offer_ competent proof of jurisdiction and cannot ,i.fty-r"rt on allegations in the complaint. see McNutt v. Gen. Motois Acceptance Corp.,29g u.i.'tzs, tss (1936) (explaining that, throughout litigation, the plaintiff maintains "the burden of showing that he is properly in court"). state a claim, not the lack of subjecfmatter 'Presumably, _ and Docket this statemeni_ refers to the alleged acts of negligence or conspiracy by the clerk clerk of the western District court in ,.not scaruring the documents,, to confirm Plaintiffs proofofservice on defendants in parker II. .!ee compl. i 5-6. 5 This language in Conrey has been abrogated by the United states Supreme court. ,See Bell Atlantic Corp. v. Twonbley, 550 U.S. 544, 562'-63 (2007) (,,Conley,s ,no ser of facrs, language has been questioned, criticized, and explained away long . . . pltris ramous observation has eamed its retirement. The phrase is best foigottJr "nougr. * ui io"oo,pi"i"l *gutiu. gloss on an accepted pleading standard: once a craim has been stated adequatllj, it.uy o. supported by showing any set offacts consistent with the allegations in the complaint.,') D. The Court's Resolution. In this case, the May l7,2011 Complaint alleges violations of the Due Process clauses of the Fifteenth and Fourteenth Amendments to the United States Constitution, premised upon misconduct by a federal district court judge in dismissing his claim, and based on errors by the Clerk and Docket Clerk of the United States District Court for the Western District of Louisiana. Parker II, No. 08-cv-184 (w.D. La. Au'g.29,2008). The united states court of Federal claims does not have subject-matter jurisdiction to adjudicate claims under the Fourteenth Amendment or the Due Process Clause of the Fifth Amendment because those provisions are no1 moneymandating. see LeBlanc v. united states, 50 F.3d 1025,l02g (Fed. cir. 1g95) (holding that the Due Process Clauses of the Fifth and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment, do not provide "a sufficient basis for jurisdiction [under the Tucker Act,l because they do not mandate payment of money by the [G]ovemmenf'). These failures foreclose a favorable judgment, and because such claims are outside the iurisiiction of this court, they must be dismissed under RCFC l2(bXl).6 To the extent that the May 17, 201 I complaint alleges a claim under the First . Amendment, the court does not have jurisdiction see connolly, 716 F.2d at gg7 (,,[T]he first amendment, standing alone, cannot be so interpreted to command the payment of money.,'). Thus, even assuming the May 17,2011 Complaint's reference to this conititutional provision is one basis for his claim, such a claim would not fall within this court,s limited jurisdiciion. , Regarding the May 17,20rl complaint's claim under 42 u.s.c. g 19g5, the united States Court of Federal Claims does not have jurisdiction to adjudicate such actions, iecause this court is not a "district court" under 28 u.s.c. $ l3a3(a). see-Anderson v. united states,22 cl. ct 178, 179 n.2 (cl. ct 1990x'[T]his court has... no jurisdiction over cases arising under the !1v! ruents Act;'), affd,937,.F.2d 623 (Fed. cir. 1991)ttable); see atso wiilis v. uited states, 96 led. Cl. 467' 470 (Fed. Cl. 2011) C'It is wellsettled that jurisdiction for civil rights ctaims, including section 1985 claims, lies exclusively in the district courts; not in the Court of Federal Claims."). To the extent that the May 17,2011 complaint alleges a claim of judicial misconduct against Judge Trimble, such a-claim must be brought in the circuit in which the subject judge sits- ,see 28 u.s.c. g 351(a) (2006) ("Any person illeging that ajudge has engaged in conduct prejudicial to the effective and expeditious administration of the business or th! iu.ts . . .may file with the clerk of the court of appeals for the circuit a written complaint[.],'); ,r, oi"o n. eon Juorcrel CoNoucr & JuDrcrAl DrsABrLrry pRocEaoncs 7(a)(l) (200-S) Gimil;). As to the claims alreged regarding Mr. Shemwell and Ms. Kiefer for mishandling Plaintiffs service, they are claims of negligence. under the Tucker Act, this court does not have jurisdiction to hear cases "sounding in tort." see 2g u.s.c. g lagl(aXl). Furthermore, the court 6In addition, the court cannot reasonably construe the Plaintiffs reference to the Fifth Ameldment as asserting a Takings clause claim against the Govemment which would be within the jurisdiction of this court. Plaintiff has noialleged that the Govemment deprived him ofany private property for public use. 1 of Appeals for the Federal Circuit has explained that "[t]he Tucker Act grants the Court of Federal Claims jurisdiction over suits against the United States, not against individual federal olficials." Brown v. United States,105 F.3d 621,624 (Fed. Cir. 1997). For these reasons, the court, having construed Plaintiffs allegations as generously as possible, has determined that it lacks jurisdiction to adjudicate the claims alleged in the May 17, 201 I Complaint.' VI. CONCLUSION. I For the reasons stated above, the Govemment's July 18, 201 Motion To Dismiss, pursuant to RCFC l2(bxl), is granted. Accordingly, the Govemment's Motion To Dismiss, pursuant to RCFC 12(bX6) is not required. The Clerk of the United States Court of Federal Claims is directed to dismiss the Mav 17. 201 1 Complaint. IT IS SO ORDERED. ? Finally, with respect to the allegations arising under parker advised to consider Judge Trimble's admonition: I and parker { Plaintiffs may, and perhaps should, file suit against these defendants plaintiff is in a Louisiana state court, as their allegations tend to demonstrate a state law cause of action, rather than a federal law cause of action. plaintiffs are cautioned that refiling this lawsuit in federal court will likely result in future dismissals for the reasons we have outlined in this ruling and, therefore, are not an efficient use of plaintiffs' limited resources or those ofthis court. Parker II, No. 08-cv-1622, Doc. No. 52 at 10. 8

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