LEFFEBRE v. USA, No. 1:2016cv00599 - Document 15 (Fed. Cl. 2016)
Court Description: REPORTED MEMORANDUM OPINION and ORDER granting 9 Motion to Dismiss - Rule 12(b)(1); directing the Clerk is to enter judgment and accept NO OTHER ACTIONS OR FILINGS BY PLAINTIFF WITHOUT AN ORDER FROM THE CHIEF JUDGE OF THE UNITED STATES COURT OF FEDERAL CLAIMS. Signed by Judge Susan G. Braden. (dls) Copy to parties. (Plaintiff served via certified mail; Article No. 7014 1200 0000 9093 9676)
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LEFFEBRE v. USA Doc. 15 FILED ocT 3 I 20t6 U.S. COURT OF CIR[ffifr$,lAt FEDERAL CLAIMS lln tbe @nfte! $tutes [.ourt of felerst @lsims No. 16-0599 Filed: October 31,2016 ,6**:f **:t** ***:f ** * * * * * ,. * * * * * * * * * * *' * * * * * *+* 28 U.S.C. $ 1491 ANDRE D. LEFFEBRE, Plaintiff, pro se, THE UNITED STATES, Defendant. ** ** * ** * ** * * * * * * * '* r. * * * * * ** * ** * '* *:1. ** * * * * {. (TuckerAct Jurisdiction); 28 U.S.C. $ 19i5(g) (Prison Litigation Reform Act of 1996); 28 U.S.C $ 2401 (Federal Tort Claim Act); 28 C.F.R. S 543.32 (Federal Bureau of Prisons Administrative Tort Claims); Rules of the United States Court of Federal Claims C'RCFC') Rules 1 1(b) (Baning Frivolous Filings), 12(bxl) (Subject Matter Jurisdiction). Andre D. Leffebre, Atlanta, Georgia, pro se. Michael A. Rodriguez, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Govemment. MEMORANDUM OPINION AND ORDER GRANTING THE GOVERNMENT'S MOTION TO DISMISS BRADEN, Jadge. I. RELEVANT F'ACTUAL BACKGROUND.' Mr. Andre Leffebre is an inmate at the United States Penitentiary in Atlanta. Compl. at 7. On May 18, 2012, federal prison employees failed to keep inmates separated; Mr. Leffebre engaged in a fight with another inmate. Compl. at 5. After the frght, Mr. Leffebre began suffering dizzy spells and migraines. Compl. at 2-3, 5. Federal prison employees did not respond to Mr. Leffebre's sick call requests and failed to document his medical condition. Compl. at 3-4. Because Mr. Leffebre believes he can no longer trust the federal prison health services, he requests the ability to purchase private health care. Compl. at 6. ' The relevant facts were derived from the May 19,2016 Complaint ("Compl."). ?Bl,q 1,a00 0000 1093 th?b Dockets.Justia.com II. PROCEDURALHISTORY. On May 18,2012, a Federal Bureau of Prisons Discipline Hearing Officer ("DHO") issued an incident report determining that Mr. Leffebre committed "Assaulting Any Person," and "Possession of a Dangerous Weapon." Compl. Ex. 3. On October 28,2013, Mr. Leffebre filed an administrative appeal of the DHO's decision. Compl. Ex. 2 at 9. Therein, Mr. Leffebre requested "monetary damages, reinstatement into the Step-Down Program or transfer to USP Pollock, restoration of [his] good conduct time, and expungement ofthe incident report." Compl. Ex. 3. On May 8, 2014, the National Inmate Appeals Administrator issued a Decision, remanding the May 18,2012 incident report to the DHO. Compl. Ex. 3. Mr. Leffebre was also informed by thc Administmtor that, if he sought monetary compensation based on the negligence of staff, he had the option ofexhausting the relevant administrative procedures and then fi1ing a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. $ 2401. Compl. Ex.3. Mr. Leffebre was advised, however, that no monetary damages could be awarded under the administrative remedy process he used to appeal the May 18,2012 incident report.2 Compl. Ex. 3. On May 19,2016, Mr. Leffebre ('Plaintiff) frled a pro se Complaint in the United States Court of Federal Claims alleging personal injury and negligence by Federal Bureau of Prisons employees and seeking relief in the amount of $250,000 in damages. Compl.at1,7. Onthe same day, Plaintiffalso filed a Motion For Leave To Proceed In Forma Pauperis. On July 18, 2016, the Govemment filed a Motion To Dismiss or, in the alternative, a Motion To Stay ("Gov't Mot."). On August 2,2016, Plaintiff filed a Motion To Transfer this case to the United States District Court for the District of Columbia ("P1. Reply"). On August 8, 2016, the Govemment filed a Response To PlaintifPs Motion To Transfer ("Gov't Resp."). On August 23, 2016, Plaintiff filed a Reply regarding his Motion To Transfer ("P1. SwReply"). ' Appeals to the National Inmate Appeals Administrator are made pursuant to the Bureau of Prisons' Administrative Remedy Program. ,See 28 C.F.R. $ 542.15 ("An inmate who is not satisfied . . .may submit an Appeal . . . . [T]o the National Inmates Appeals Administrator[.]"). The purpose of the Administrative Remedy Program "is to allow an inmate to seek formal review of any issue relating to an aspect of his confinement." 28 C.F.R. $ 542.10. A separate administrative process govems claims for money damages made by prisoners pursuant to the Federal Tort Claims Act. See 28 C.F.R. $ 543.30 ("Pursuant to the Federal Tort Claims Act, a claim for money damages . . . must be frled against the United States by the injured party with the appropriate Federal agency for administrative action. . . . The provisions in this subpart describe the procedures to follow when filing an administrative tort claim with the Bureau ofPrisons."). UI. JURISDICTION. jurisdiction of the United States Court of Federal Claims is established by the Tucker Act. See 28 U.S.C. $ 1491 (2006). The Tucker Act authorizes the court "to render j udgment upon any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation of an executive department, or upon any express or impiied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. The $ 14e1(a)(1). 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 [the United States Court of Federal Ciaims] 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 ofaction; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identifu a separate source of substantive law that creates the right to money damages."). The burden of establishing jurisdiction falls upon 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(bxl). IV. DISCUSSION A. Standard For Decision On Motion To Dismiss Pursuant To RCFC 12@Xf). A challenge to the United States Court ofFederal Claims' "general power to adjudicate in specific areas of substantive law . . . is properly raised by a [Rule] 12(bX1) motion[.]" Palmer v. United States,168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(bX1) ("Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction[.]"). When considering whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to assume all factual allegations ofthe complaint to be true and to draw all reasonable inferences in plaintiffs favor." Henke v. United States, 60 F.3d 795,797 (Fed. Cir. 1995). B. Standard of Review for Pro Se Litigants. Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding that pro se complaints, "however inartfully pleaded," are held to "less shingent standards than formal pleadings drafted by lawyers"). The court traditionally examines the record "to see if [a pro se] plaintiff has a cause of action somewhere displayed." Ruderer 1). United Stdtes, 412 F.2d, 1285, 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s complaint, the court "does not excuse [a complaint's] failures." Henke, 60 F.3d at799. C. The Government's July 18,2016 Motion To Dismiss Or, In The Alternative, Motion To Stay The Action Until Plaintiff Pays The Required Filing Fee. 1. The Government's Argument. The Govemment argues that the May 19, 2016 Complaint should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"), because the claim alleged by the May 19,2016 Complaint is based in tort. Gov't Mot. at 3. The Govemment adds that the court should not transfer this case to the United States District Court for the District of Columbia, because Plaintiffs tort claim is baned by the statute of limitations. Gov't Resp. at 1. In addition, the Government contends that Plaintiff is not entitled to in forma pauperis filing fee; if he fails to do so, the May 19,2016 Complaint should be dismissed under the "three strikes" rule ofthe Prison Litigation Reform Act of 1996 C'PLRA'),28 U.S.C. $ 1915(9). Gov't Mot. at 5. The Govemment also cites numerous other cases dismissing prior claims filed by Plaintiff as frivolous, malicious, or for failure to state a claim. See, e.g., Lefibbre v. Lapin,No.08-1286 (D.D.C. July 28, 2008) (dismissing complaint for failure to state a claim); Lefebre v. Kent, No. 09-1328 (D.D.C. July 17, 2009) (dismissing complaint for failure to state a claim); Lffibre v. Fed. Corp., No.07-0546 (S.D. Tex. Dec. 10, 2007) (dismissing claim as frivolous); Leffebre v. United Srales, No. 14-956 (Fed. Cl. Dec. 16, 2014) (granting Govemment's motion to stay case pending payment of filing fee because t}ree status and should be required to pay the strikes rule applied) 2. Plaintiff s Response. Plaintiff responds that employees of the Federal Bureau of Prisons created a dangerous environment and caused his injuries by failing to separate him from fellow inmates and the medical staff did not document his medical issues. Compl. at 3-5. By the August 2, 2016 Motion, Plaintiff requests to transfer this case to the United States District Court for the District of Columbia. Pl. Reply at 2. Plaintiff also requests the assistance ofcounsel. Pl. Sur-Reply at 2. D. The Court's Resolution. 1. The United States Court Of Federal Claims Does Not Have Jurisdiction To Adjudicate Plaintiff s Tort Claims. PlaintifFs May 19,2016 Complaint seeks "personal injury and damages committed by employees of the Govemment. Compl. at 1. Money damages claims arising from personal injury sound in tort. See Blacr's Lew DrcloNARy (1Oth ed.2014) (defining a tort as "[a] civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages"); see also id. (defrning a personal tort as a "tort involving or consisting in an injury to one's person, reputation, or feelings"). The United States Court of Federal Claims does not have jurisdiction to adjudicate tort claims. See 28 U.S.C. $ 1a91(a) ("The United States Court of Federal Claims shall have jurisdiction 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." (emphasis added)); see also Aetna Cas. & Sur. Co. v. United States, 655 F.2d 1047, 1059 (Ct. Cl. 1981) ("Tort claims are expressly beyond our Tucker Act jurisdiction."). . 2. The May 19,2016 Complaint Should Not Be Transferred To A United States District Court, Pursuant To 28 U.S.C. $ 1631. Section 1631 of Title 28 ofthe United States Code provides: Whenever a civil action is filed in a court as defined in section 610 ofthis title or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want ofjurisdiction, the court shall, if it is in the interest ofjustice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. $ 1631. The United States Court of Federal Claims is authorized to transfer the May 19,2016 Complaint, but only when the conditions of Section 163 1 are met. See Tex. Peanut Farmers v. United States,409 F.3d 1370, 1375 (Fed. Cir. 2005) ("[T]he trial court could have ordered transfer without being asked to do so by either party[.]"). The decision to transfer rests within the discretion of the transferor court. ,See In re Vistaprint Ltd., 628 F .3d 1342, 1344 (Fed. Cir. 2010) (stating that "[the] trial court has broad discretion in transfer decisions") see also Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 816-17 (1988) (holding that a transfer order should be affirmed unless "clearly erroneous"). In order for a case to be transferred under Section 1631, the court must determine that: (1) the transferring court lacks subject matter.jurisdiction; (2) the case could have been brought in the transferee court at the time the case was filed; and (3) transfer is in the interest of justice. See Tex. Peanut Farmers, 409 F.3d at 1374 (holding that transfer is appropriate under Section 1631 when the court finds that there is a want ofjurisdiction, the action could have timely been brought in another court, and transfer is in the interest ofjustice). The first requirement of Section 163 1 is met in this case, because the United States Court ofFederal Claims does not have subject matter jurisdiction to adjudicate the tort claims alleged in the May 19,2016 Complaint. Compl. at 1 (alleging "personal injury and damages committed by employees of the Govemment"). The second requirement of Section 163 1 is not met, however, because the United States District Cou( for the District of Columbia did not have iurisdiction over Plaintiff s tort claims when the May 19, 2016 Complaint was filed. An action may be filed under the FTCA only after admini strative remedies are exhausted. Section 2401(b) ofthe FTCA provides: A tort claim against the United States shall be fbrever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented 28 U.S.C. $ 2a01(b); see also 28 U.S.C. $ 2675(a) (requiring that prior to being filed in a United States District Court, an FTCA claim "shall have first [been] presented. . . to the appropriate Federal agency and [the] claim shall have been finally denied by the agency in writing and sent by certified or registered mail."). Plaintifl allegedly incurred injury on May 18, 2012. Compl. at 2. Accordingly, Plaintiff was first required to file an Administrative Tort Claim with the Federal Bureau of Prisons no later than May 18,2014. ,See 28 U.S.C. $ 2a01(b); see also 28 C.F.R. $ 543.32 (Bureau of Prisons regulation authorizing administrative tort claim procedures). If Plaintiff s claim was denied, then he was required to file a complaint with a United States District Court within six months. See 28 U.S.C. $ 2401(b); see also 28 C.F.R. g 543.32(g) (requiring that a prisoner may request reconsideration of an administrative tort claim and may, if dissatisfied with the reconsideration, file suit in "an appropriate [United States] District Court as no further administrative action is available"). in the record indicates that Plaintiff exhausted the required administrative Cout of Federal Claims. In fact, the National Inmate Appeals Administrator's May 8,2014 Decision instructed that if Plaintiff wished "to seek monetary compensation based on the negligence of stafl [he] must file [his] claim through the administrative procedures applicable to the basis of [his] claim[.]" Compl. Ex. 3. Because the May 19,2016 Complaint does not state that Plaintiff exhausted the relevant administrative procedures within the applicable timeframe, as a matter of law his claim is baned. See 28 U.S.C. $ 2401(b). Nothing remedies before filing the May 19, 2016 Complaint with the United States Assuming arguendo that the National Inmate Appeals Administrator's May 8, 2014 Decision satisfied 28 U.S.C. $ 2401(b), Plaintiff nevertheless failed to file a complaint with a United States District Court within six months after receiving the administrative decision, i.e., by November 8, 2014. Section 1631 requires that upon transfer, "the action... shall proceed as if it had been filed or noticed for the court to which it is transferred on the date upon which it was actually filed on or noticed for the court from which it is transferred." 28 U.S.C. $ 1631. Even if Plaintiff had filed the May 19, 2016 Complaint in the correct forum-the United States District Court for the District of Columbia-his claim would be baned by the statute of limitations. Finaliy, Section 163l requires any transfer to be in the interest ofjustice. Section 1631 further provides that a transfened case retains its original filing date. See 28 U.S.C. $ 1631. Transfer is in in the interest ofjustice when the plaintiff has a viable interest in preserving the original filing date. See AGP, L.P. v. United Stqtes,4l Fed. Cl. 607,610 (1998) ("Because dismissal would not preserve the earlier filing date, transfer is the preferable altemative for [the] plaintiffs. . . . Transfer, rather than dismissal, would serve the interest ofjustice."). Transfer is futile, however, when the claim would be time barred even its original filing date. See Cavin v. United States, l9 Cl. Ct. 190, 197-98 (1989) ("[I]f the claim would have been time barred even if it had been brought in the proper court, then a transfer is improper, and the case should be dismissed."). ln this case, Plaintiffls claim is baned regardless ofwhether this court dismisses the May 18, 2016 Complaint or transfers tlre case to the United States District Court. Accordingly, the circumstances of this case do not require transfer, and "transfer would unduly burden the judicial system[ -f" Tex. Peanut Farmers, 409 F.3d at 1375. 3. The Prison Litigation Reform Act Applies To Plaintiff. Under the PLRA, 28 U.S.C. $ 1915, a federal prisoner may commence a suit in any court ofthe United States without prepayment offees or security thereof, r. e., a federal prisoner may file in"informa pauperis;' 28 U.S.C. $ 1915(a). Section 1915(g) of the PLRA, however, states: In no event shall a prisoner bring a civil action or appeal ajudgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court ofthe United States that was dismissed on the grounds that it is frivolous, rnalicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. $ 191s(g). In short, the PLRA provides a "three strikes rule"; a prisoner may not proceed in forma pauperis if the prisoner has brought 3 or more actions dismissed either as frivolous, malicious, or for failure to state a claim. 28 U.S.C. $ 1915(9). As the court observed in Leffebre v. United Stales, No. 14-956 (Fed. Cl. Dec. 16,2014), Plaintiff has filed at least thirty-four civil actions in various federal district courts, and the "three strikes rule" has been invoked to bar Plaintiff from proceeding unless he pays the filing fee. 1d In any event, the court is required to dismiss an action once it is apparent that the "three strikes" rule applies and the prisoner is not in imminent danger of serious physical injury. See 28 U.S.C. $ 1915(9) ("1n no event shall a prisoner bring a civil action . . . .") (emphasis added); see also Johnson v. United States, 82 Fed. Cl. 150, 154 (2008) (determining that, because Section 1915(g) applied, the plaintiffs "complaint must be dismissed"). There is nothing in the record that demonstrates that Plaintiff is in imminent danger of a serious physical injury. Therefore, in this case, even if the May 19, 2016 Complaint was not dismissed for lack of subject matter jurisdiction, Plaintiff would be barred from proceeding in forma pauperis by operation of the "three strikes rule." See 28 U.S.C. $ 1915(g). V. CONCLUSION For the foregoing rezrsons, the Clerk of the Court is directed to dismiss the May 19,2016 Complaint for lack of subject mauer jurisdiction under RCFC l2@)(l). The Clerk is further directed to accep no other actions or filings by Andre David Leffebre without an order from the Chief Judge of the United States Court of Federal Claims. ln seeking leave to file any actions in this court, Mr. Leflebre must explain how his complaint raises new matters properly before this court. See RCFC I 1(b) (baning the filing of unwananted or frivolous claims). IT IS SO ORDERED. Judge
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