STRAIN v. USA, No. 1:2018cv01137 - Document 14 (Fed. Cl. 2018)

Court Description: ORDER AND OPINION: granting 12 Motion to Dismiss - Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Senior Judge Robert H. Hodges, Jr. (ac7) Service on parties made.

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STRAIN v. USA Doc. 14 @nfte! $tates @ourt of fre\ersl @lsims No. l8-l137 C November 15,2018 TIMOTHY MARK STRAIN. Plaintiff, UNITED STATES OF AMERICA, Defendant. Timothy Mark Stain, Baton Rouge, LA, pro se. Michael Duane Austin, Esquire, United States Department Division, Washington, D.C. for defendant. of Justice, Civil ORDERAND OPINION Hodges, Senior Judge. Plaintiff Timothy Mark Strain filed a complaint against the United States alleging "misidentification" and seeking damages for slander, libel, wrongful imprisonment, and infringement on his property. Defendant filed a motion to dismiss pursuant to RCFC l2(bXl) asserting that the pleadings allege insufficient, tort-based, or criminal violations. The Supreme Court has ruled that pleadings hled by plaintiffs proceeding pro se, "however inarlifully pleaded," are held to less rigid standards than those by counsel. Hughes v. Rowe,449 U.S. 5, 9 (1980). A court should be "receptive Io pro se plaintiffs and assist thern." Demes v. United States,52 Fed. Cl. 365,369 (2002). Nevertheless, a pro se plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence. See McNun v. Gen. Motors Acceptance Corp.,298 U.S. 178, 189 (1936). The complaint must suppon allegations with "competent proof' of jurisdiction and cannot rely solely on conclusory allegations. McNutt,298 tJ.S. at 189. The court must dismiss an action if we determine "at any time that [we] lack subject matter jurisdiction." RCFC 12(hX3). Congress has authorized this court to hear "any claim against the United States founded either upon the Constitution, or any Act of bongre., o. uny regulation of an -1- 701? l,'+50 0000 13'{t Ia7? Dockets.Justia.com 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)(1) (Tucker Act). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages . . ." United States v. Testan, 424 U.S. 392, 398 (1976). A plaintiff must identifu and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages separate from the Tucker Act. Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004). A complaint must allege a source of substantive law that "can fairly be interpreted as mandating compensation by the Federal Government." Testan,424 U.S. at 400. Mr. Strain for an infringement of his property" for a violation of the Fifth Amendment Takings Clause. See U.S. Const. amend. V. (Takings Clause); see seeks "damages also Jan's Helicopter Serv., Inc. v. F.A-A.,525 F.3d 1299, 1309 (Fed. Cir. 2008) (holding that the "Takings Clause is a money-mandating source for purposes of Tucker Act jurisdiction"). However, the claim is unsupported by any facts in the pleadings. Our court is authorized to "render judgment upon any claim for damages by any person unjustly convicted ofan offense against the United States" under 28 U.S.C. $ 1495. A claimant must: (l) prove that his conviction was reversed or set aside; (2) that he did not commit the acts charged; and (3) submit a certificate from the trial court as proof of his pardon. 28 U.S.C. $ 2513. Mr. Strain has failed to plead any facts related to his alleged wrongful imprisonment. As for the allegations of slander and libel, these are torts or criminal claims not usually included in this jurisdiction. See 28 U.S.C. g la9l(a)(1); Sanders v. United States, 252 F .3d 1329, 1333-34 (Fed. Cir. 2001). We have reviewed the complaint in a light most deferential to this plaintiff and taken into consideration the Judiciary's obligation to consider the allegations ofpro se pleadings with wide latitude compared to those drafted by attorneys. Nevertheless, we cannot discern a claim within our jurisdiction . United States v. Ford Motor Co.,497 F .3d 133 1, 1336 (Fed. Cir.2007). For the reasons stated, we GRANT defendant's Motion to Dismiss. The Clerk Court will DISMISS plaintiff s Complaint pursuant to RCFC 12(b)(l). No costs. IT IS SO ORDERED, -2- of

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