                                   OR!GINAt
       lln tbe @niteb $ltutes @ourt of :felerst                         @latms
                                         No. 15-374 C
                                    (Filed: June 18,2015)                    FILED
                                  NOT FOR PUBLICATION                       JUN I I 20t5
                                                                           U.S. COURT OF
                                                                          FEDERAL CLAIMS
BYRON J. BEDELL,
                                                   Prisoner; Pro Se; 28 U.S.C.
                     Plaintiff,                    $ l9l54;28 U.S.C. $ l9l5(g)r
                                                   Sua Sponte Dismissal for Failure
                                                   to State a Claim Upon Which
                                                   Relief May Be Granted
THE UNITED STATES,

                     Defendant.


Byron J. Bedell, Lewisburg, Pa., pro   se.


Alexis J. Echols, Trial Attorney, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Attomey General; Robert E. Kirschman. Jr., Director; Brian A. Mizoguchi,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant.

                                   OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

       Plaintiff, Byron Bedell, brings suit against two agencies within the United States
Department of Justice, the Federal Bureau of Prisons (BOP) and the Civil Division,
Torts Branch (Torts Branch) (collectively, defendants), for entry of a default judgment.
Mr. Bedell is a prisoner incarcerated in the federal penitentiary in Lewisburg,
Pennsylvania. He brings his claim without counsel.

        Mr. Bedell's dispute centers on the lact that despite his lack ofconsent, he is in
BOP custody. Mr. Bedell alleges his custody is the result of an act of kidnapping, and
thus constitutes false imprisonment. Mr. Bedell offered each defendant the opportunity
to "settle" with hirn by entering into a contractual agreement by which it admitted its
wrongdoing and compensated him accordingly. Neither defendant replied to Mr.
Bedell's unsolicited contractual agreement. Mr. Bedell now claims that defendants'
silence indicated acquiescence to both his allegations of wrongdoing and his settlement
requests. Given this acquiescence, Mr. Bedell asks this court to enter a default judgment
in his favor. Prior to filing this complaint, Mr. Bedell had no complaint pending in this
court. Mr. Bedell seeks to have his criminal conviction vacated, to be released from
federal custody, and to be paid approximately $225 million.

    Mr. Bedell also filed an application to proceed in forma pauoeris, which the court
GRANTS.

       The court is obliged to review any complaint "in which a prisoner seeks redress
from a governmental entity," and if the court finds the complaint "is frivolous,
malicious, or fails to state a claim upon which relief may be granted," the court must
dismiss the complaint. 28 U.S.C. $ l9l5A(a)-(b) ("Screening" statute).

       Having reviewed Mr. Bedell's complaint, the court finds that it fails to state    a
claim for which relief may be granted. According, Mr. Bedell's complaint is
DISMISSED.

I.     Background

       Mr. Bedell's complaint, together with supporting affidavits, exhibits, and copies
of legal authority on which Mr. Bedell attempts to rely, totals over I l0 pages. Compl.,
ECF No. 1. Neither Mr. Bedell's complaint, nor its supporting documents, are a model
of clarity. Nonetheless, the gist of his dispute is clear.

       Sometime before January 2010, Mr. Bedell was taken into federal custody,
charged, tried, and convicted for an unstated felony. See Compl. 110 (Judgment, United
States v. Bedell, No. 08-cr-00299 (M.D. Pa. Jan. 26,2010)). In January 2010, Mr.
Bedell was sentenced to serve 106 months in the custody of the BOP. Id.t

       Mr. Bedell terms his custody to be    a transfer or an extradition, and asserts that the
BOP needed his    permission to make   such a transfer. ld. at24 (citing 18 U.S.C. $
a100(b); 18 U.S.C. $ 4107). As Mr. Bedell terms it, "[a] dispute has arisen between the
Plaintiff and the defendant as to the validity of the United States . . . properly extraditing
Plaintiff from the (Republic) asylum of the Commonwealth State Pennsylvania into U.S.
custody." 2 Id. at 5, fl 1.

I      The cited page numbers are those affixed by the court's CMi€,CF system at the
top ofeach page, as they are the only fonn of consistent pagination within plaintiffs
complaint.

2      It is unstated exactly where Mr. Bedell was at the time he was taken into custody
on the charges that eventually led to his current incarceration. Regardless, this
information is not relevant to this opinion.
       As he never gave permission for any transfer, Mr. Bedell characterizes the BOP
taking custody of him as an act ofkidnapping. Id. at2,fln7-8. Mr. Bedell characterizes
his incarceration as false imprisonment. Id. at 2, fl 8.

       From October 2013 to October 2014,Mr. Bedell engaged in Freedom of
Information Act (FOIA) correspondence with both defendants. Id. at2, !f 3-6; id. at 3,'lf
9-10; id. at 5, fl 4. Mr. Bedell sent FOIA requests seeking the documents by which he
gave his permission for transfer to federal custody. Compl.79,81. Each defendant
replied that it could locate no responsive documents. Id. at 80, 82.

       Now in possession ofa letter from each defendant allegedly confirming that he
never gave the BOP permission to take him into federal custody, Mr. Bedell began his
attempts to secure a settlement agreement with first the BOP, and later the Torts Branch.

       In November 2013, Mr. Bedell sent his unsolicited contractual agreement to the
BOP regional office in Philadelphia, Pennsylvania, by which it could admit to
kidnapping and false imprisonment, and settle with him by vacating the judgment in his
criminal case, releasing him from federal custody, and paying him approximately $225
million. Id. at3,fl ll;id. at3l-35,70-78. TheBOPmadenoreply. Compl. 3,fl 12.

         In July 2014, Mr. Bedell sent the same unsolicited contractual agreement to the
Torts Branch in Washington, D.C.3 Compl. 5. fl 5; id. at 12, 19-30. Mr. Bedell
contacted the Torts Branch "due to the silence" of the BOP, and because he understood
that it "speaks for the U.S. Dept. ofJustice . . . and Federal Bureau ofPrison[s]."
Compl.20.

        In February to March 2015, having received no reply from the Torts Branch, Mr.
Bedell followed up by sending the Torts Branch various notices of default and
certificates ofnon-response. Compl. 6, fl 9; id. at 7, tlll I l-12; id. at 38-66.

       The unsolicited contractual agreement Mr. Bedell sent both defendants included
express notice that he would interpret silence as acquiescence to both his allegations of
wrong doing and to his settlement request. Compl. 3-4, flfl 13-14. As he told the BOP,
"[y]our failure to reply to Notice & Demand (submissions) will result in a clear
understanding and assent of the minds ofyour agreement to pay the full amount of

r      Mr. Bedell alternately refers to the U.S. Department of Justice Risk Management
Section, Compl. 19, 20, and the Civil Division, Torts Branch, id. at 38, 42,59. The
correspondence Mr. Bedell received has been from the Torts Branch. Add'l Evidence 6,
10, 13, ECF No. 8. That Mr. Bedell alternately referred to other agencies within the
Department of Justice is not relevant to this opinion.
damages being demanded . . .    ."
                                 Id. at 70. Mr. Bedell provided similar notice to the
Torts Branch. Compl.27 ("Your failure to properly and timely respond is your
agreement with the statements and the averments that I have made herein.").

        Which brings us to Mr. Bedell's complaint in this court. On April 13, 2015, Mr.
Bedell filed his complaint requesting a Rule 55 default judgment based solely on the
unsolicited contractual agreement he mailed to both the BOP and the Torts Branch. Id.
at I (citing Rule 55 of the Rules of the United States Court of Federal Claims (RCFC));
id. at 7-8, flfl 13-14.

         Relying on the notice he provided regarding the consequence ofsilence, Mr.
Bedell claims each defendant "acquiesced" to both his allegations ofwrongdoing and his
settlement request, thus he is entitled to judgment. See Compl. 6, fl 7 (stating that the
BOP never responded to his claim, "thereby invoking the doctrine of acquiescence"; id.
at 7, !l 10 (claiming that as the Torts Branch failed to reply to his claims within the time
allowed, it had admitted to plaintiff s "claims, the liability and the contractual
agreement").

       On May 15, 2015, Mr. Bedell filed an additional seventeen pages of documents in
further support of his complaint. Add'l Evidence, ECF No. 8. The additional
documents are primarily correspondence regarding his claim, either between Mr. Bedell
and the Torts Branch, or between the BOP and the Torts Branch. The documents
include no new allegations.

       On June 12,2015, defendants filed a motion to dismiss for lack ofjurisdiction
under Rule 12(bX1). Def.'s Mot., ECF No. 10. Despite defendants' motion, as Mr.
Bedell is a prisoner seeking redress from a govemmental entity, the court is first obliged
to screen his complaint under 28 U.S.C. $ 1915'4'.

II.    Application to Proceed In Forma Pauperis

       Mr. Bedell filed an application to proceed in forma pauperis, IFP Appl., ECF No.
3, and subsequently filed his trust fund account statement in support ofthat application,
Notice of Filing, ECF No. 6. Defendant filed no response to Mr. Bedell's motion.

       A prisoner is required to provide "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 or notice of appeal, obtained from the
appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C.
$ 1e1s(a)(2).

      The trust fund account statement Drovided bv Mr. Bedell was not certified. See
Notice of Filing 2-3. Review of the two-page statement shows that it is Mr. Bedell's
"lnmate Statement" printed from the prison's "TRUWEB" system.a On April 23,2015,
Mr. Bedell had an account balance of $11.83, which was also his six months average
daily balance. ld. at2. This court has previously accepted such a statement as an
"institutional equivalent" ofa certified copy of the trust fund account statement. See
Soencer v. United States, 98 Fed. Cl.349,354 n.8 (2011).

      The court is satisfied that Mr. Bedell has complied with the requirements for
proceeding in forma pauperis. The court GRANTS Mr. Bedell's motion to proceed in
forma pauperis.

m.     Legal Standard

       "A document filed   p1q se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal
citations and quotation marks omitted). Nonetheless, a pro se complaint must still
"allege facts 'plausibly suggesting (not merely consistent with)' a showing of
entitlement to relief'to avoid dismissal for failure to state a claim. Acceptance Ins. Cos.
v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009) (quoting Bell Atl. Corp. v.
Twomblv, 550 U.S. 544,557 (2007)).

        "Dismissal for failure to state a claim . . . is a decision on the merits which
focuses on whether the complaint contains allegations, that, ifproven, are sufficient to
entitle a party to relief." Gould. Inc. v. United States, 67 F .3d 925,929 (Fed. Cir.
 1995)." In determining whether plaintiff has failed to state a claim, the court "must
accept as true all the factual allegations in the complaint" and make "all reasonable
inferences" in favor of the plaintiff. Sommers Oil Co. v. United States , 241 F .3d 137 5,
 1378 (Fed. Cir. 2001) (intemal citations ornitted). "Factual allegations must be enough
to raise a right to reliefabove the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at
555 (internal citation omitted). The court is "'not bound to accept as true a legal
conclusion couched as a factual allegation."' Id. (quoting Papasan v. Allain, 478 U.S.
26s,286 ( 1986).




4      TRUWEB is an "application used by various non-financial management staff
within the BOP in order to view inmate financial information contained in [Trust Fund
Accounting and Commissary System (TRUFACS)1." Fed. Bureau of Prisons, Privacy
Impact Assessment for the Trust Fund Network (TRUNET) 3 (2014), available at
http ://www.bop. gov/foia,/trunet.pdf.
IV.     Discussion

       A.     Rule 55 Default Judgment

     Mr. Bedell asks this court to enter   a default   judgment in his favor under Rule 55.
Compl. I (citing RCFC 55).

        Entry ofa default judgment is a two-step process. First, a party must seek entry
ofa default under Rule 55(a). "When a party against whom a judgment for affirmative
reliefis sought has failed to plead or otherwise defend, and that failure is shown by
affidavit or otherwise, the clerk must enter the party's default." RCFC 55(a). Second,
after the clerk enters a default, the party seeking the default judgment "must apply to the
court for a default judgment. A default judgment may be entered only if the claimant
establishes a claim or right to reliefby evidence that satisfies the court." RCFC
ss(bx2).

        Rule 55(b), like all the court's rules, "govern[s] the procedure in the United States
Court of Federal Claims in all suits." RCFC 1. And here is where Mr. Bedell's claim
for a default judgment must fail. At the time he filed his complaint that is the subject of
this dismissal, Mr. Bedell had no suit pending in this court.s The court may enter a Rule
55(b) default judgment only against a party who has failed to defend a claim brought in
this court. It is beyond the reach of the court to enter a default judgment against a party
who failed to defend itself from allegations of wrongdoing and settlement requests
contained only in an unsolicited contractual agreement.

        Accordingly, Mr. Bedell's claim for entry of a default judgment under Rule 55
fails to state a claim for which relief may be granted.

       Construing his complaint liberally, Erickson, 551 U.S. at 94, the court also
considers whether Mr. Bedell has stated a contract claim or a tort claim.

       B.     Existence of either an Express Contract or an Implied-in-Fact Contract

        Mr. Bedell asserts that by their silence, each defendant acquiesced to the
allegations in his unsolicited contractual agreement. Compl. 3-4, flfl 13-14.

             In absence of a clear written contract between us, this Notice and
       Caveat will result in a clear understanding and assent of the minds ofyour
       agreement to pay the full amount of damages being demand in the attached

5       Mr. Bedell later filed a second complaint against the United States Department of
Justice. Complaint, Bedell v. United States, No. l5-522 (Fed. Cl. May 19,2015). That
suit is pending in front of anotherjudge.
       Tort Claim (Standard Form 95) with the party(s)/undersigned clearly
       identified here. Your failure to properly and timely respond is your
       agreement with the statements and the averments that I have made herein.

ld. at27 (Torts Branch) (emphasis added); id. at 70 (informing the BOP that "[y]our
failure to reply to Notice & Demand (submissions) will result in a clear understanding
and assent of the minds ofyour agreement to pay the full amount ofdamages being
demanded . . .").

       Mr. Bedell's reference to an "assent of the minds," Compl.27, suggests an
implied-in-fact contract. "An agreement irnplied in fact is 'founded upon a meeting of
minds, which, although not embodied in an express contract, is inferred, as a fact, from
conduct of the parties showing, in the light ofthe surrounding circumstances, their tacit
understanding."' Hercules. Inc. v. United States, 516 U.S. 417,424 (1996) (quoting Balt.
& Ohio R.R. Co. v. United States, 261 U.S. 592,597 (1923)).

        The elements ofan implied-in-fact contract are the same as those required for an
express contract: (1) mutuality of intent; (2) lack of ambiguity in offer and acceptance;
(3) consideration; and (4) actual authority to bind the government. See Hanlin v. United
States, 316 F.3d 1325, 1328 (Fed. Cir. 2003); Trauma Serv. Gm. v. United States, 104
F.3d 1321, 1325 (Fed. Cir.1997). Regardless of the type of contract Mr. Bedell rnight
assert exists, such contract claim fails on every element.

       L      Intent to Contract and Lack of Ambiguity in Offer and Acceptance

      Mr. Bedell points to no affirmative statement or conduct on the part of either
defendant that would convey its intent to contract with him. Rather, in his claim that
each defendant "acquiesced" to his allegations, Mr. Bedell relies entirely on silence to
show both intent to contract and acceptance. Compl. 6, !l 7 (BOP); id. at7, fl l0 (Torts
Branch).

        The general rule regarding contract formation is that "silence does not, except in
unusual circumstances . . . constitute acceptance ofan offer to enter into a contract."
Sheppard v. United States, No. 11-295C, 201I WL 6370078, at *5 (Fed. Cl. Dec. 20,
201l) (citing Radioptics. Inc. v. United States,62l F.2d I I13, I121 (Ct. Cl. 1980)
("Silence may not be construed as an acceptance ofan offer in the absence ofspecial
circumstances existing prior to the submission of the offer which would reasonably lead
the offeror to conclude otherwise.")); see also Restatement (Second) Contracts $ 69 cmt.
a (1981) ("The mere receipt ofan unsolicited offer does not impair the offeree's freedom
of action or inaction or impose on him any duty to speak.").
       While limited exceptions to this general rule exist, Mr. Bedell alleges no facts
that would bring his unsolicited contractual agreement within the recognized exceptions,
which are:

       (a) Where an offeree takes the benefit of offered services with reasonable
       opportunity to reject them and reason to know that they were offered with
       the expectation of compensation[;]
       (b) Where the offeror [here, Mr. Bedell] has stated or given the offeree
       reason to understand that assent may be manifested by silence or inaction,
       and the offeree [here, defendants] in remaining silent and inactive intends
       to accept the offer[;and]
       (c) Where because of previous dealings or otherwise, it is reasonable that
       the offeree should notifu the offeror if he does not intend to accept.

Restatement (Second) Contracts $ 69 ( 1981).

       Mr. Bedell has failed to show that either defendant intended to conhact with him.
and also has failed to show acceotance of his offer bv either defendant.

       2.     Consideration

       "Itis often stated that the consideration required to support a promise is a
detriment incurred by the promisee [here, Mr. Bedell] or a benefit received by the
promisor at its request [here, defendants]." Williston on Contracts $ 7:4; see also
Bogley's Estate v. United States , 514 F .2d 1027 , 1033 (Ct. Cl. 1975) (same). This court
has previously held that because govemment officials lack authority to commit the
government to a contract in which it receives no benefit, any detrirnent to a promisee,
without more, is insufficient to show consideration. "Additionally, in the context of
government contracts this court has held that consideration must render a benefit to the
govemment, and not merely a detriment to the contractor; government officials do not
have authority to make contracts in which no benefit flows to the govemment."
Metzger. Shadyac & Schwarz v. United States, 12 Cl. Ct. 602,605 (1987).

       Nothing in Mr. Bedell's unsolicited contractual agreement suggests either a
benefit to defendants or a detriment to Mr. Bedell. Rather, Mr. Bedell would benefit by
having his criminal conviction vacated, being released from federal custody, and
receiving approximately $225 million. And at Mr. Bedell's urging, the BOP in turn
would admit wrongdoing on its part, and one or both defendants would be obligated to
pay Mr. Bedell a very large sum of money-hardly an outcome that could be considered
beneficial to either defendant.

       Mr. Bedell has allesed no facts that would show consideration.
        3.     Actual Authority

        Finally, "contract with the United States also requires that the Government
                   a
representative who entered or ratified the agreement had actual authority to bind the
United States." Trauma Serv. Grp., 104 F.3d at 1325; see also Doe v. United States, 100
F.3d 1576, 1584 (Fed. Cir. 1996) ('Absent actual authority on the part ofthe
Government's agent to bind the Govemment in contract, no binding contract can exist . .
..').
        Mr. Bedell provides no authority to support a finding that any Department of
Justice employee had actual authority to vacate his criminal conviction, release him from
the federal prison to which he was sentenced by a federal judge, and pay him hundreds
of millions of dollars-the settlement requests included in his unsolicited contractual
agreement.

       As Mr. Bedell failed to allege facts sufficient to show any element of a either an
express or an implied-in-fact contract, any contractual claim fails to state a claim for
which relief may be granted.

        C.     Kidnapping and False Imprisonment Allegations

        Next, the court considers Mr. Bedell's underlying allegations of kidnapping and
false imprisonment leveled against the BOP. See Compl. 2, U 8. Kidnapping and false
imprisonment are torts, and thus outside the jurisdiction of this court. 28 U.S.C. $
I491(a)(1) (2012); Lawson v. City of Coatesville, 42 F. Supp. 3d 664,668 (E.D. Pa.
2014) (referring to false imprisonment as a tort); Muhammad v. Dempsey, No. 11-350,
2012WL983574, at *2 (M.D. Pa. Mar. 22,2012) (refening to kidnapping as a tort).

       Nonetheless, if Mr. Bedell had stated a tort claim, this court would be obliged to
consider whether transfer ofthat claim to a district court in which it could have been
brought was in the interest ofjustice. See 28 U.S.C. g 163 I (2012). Accordingly, the
court considers whether Mr. Bedell has stated a tort claim.

        Tort claims against the United States may be brought under the Federal Tort
Claims Act (FTCA), through which the govemment waived sovereign immunity for
torts committed by federal govemment employees acting within the scope of their
employment. 28 U.S.C. $ 1346(bXl) (2012). FTCA liability is derermined by the law
ofthe state in which the alleged tort occurred. Lomandov. United States,667F.3d363,
372 (3d Cir.201l). Mr. Bedell alleges that he was taken from Pennsylvania into federal
custody, Compl. 5, fl I, thus any tort committed against Mr. Bedell occurred in the
commonwealth of Pennsylvania. Accordingly, the court considers Pennsylvania law in
evaluating whether Mr. Bedell stated a tort claim for either kidnapping or false
imprisonment.

        Kidnapping is defined as "unlawfully remov[ing] another a substantial distance
under the circumstances from the place where he is found." 18 Pa. Cons. Stat. Ann. $
2901(a) (20 12). The elements of false imprisonment under Pennsylvania law are two-
fold: (1) detention of another person (2) that is unlawful. Davila v. N. Reg'l Joint
Police Bd., Nos. 13-070 & 12-070,2014 WL 3735631, at *4 (W.D. Pa. July 28,2014)
(citing Manley v. Fitzeerald,99T A.2d 1235, l24l (Pa. Commw. Ct. 2010)).

        Mr. Bedell's sole factual allegation is that the BOP transferred him to federal
custody without his permission. Compl. 5, fl 2. His legal argument is that under l8
U.S.C. $ 4100(b) and 18 U.S.C. $ 4107, his permission was necessary for this transfer.
Id. Both $ 4100(b) and $ 4107 govern transfer ofan offender from the United States to a
foreign country. As Mr. Bedell makes no allegation that he was transferred outside the
United States, any protections provided by $ 4 100(b) and $ 4107 simply do not apply to
him. Absent $ 4100(b) and $ 4107, Mr. Bedell provides no support for his contention
that the BOP needed his permission to take him into federal custody, or that the lack of
permission renders his custody by the BOP unlawful.

        Mr. Bedell has failed to allege facts sufficient to support a claim for either
kidnapping or false imprisonment, and any such claim fails to state a claim for which
relief may be granted.




                                            l0
V.     Conclusion

       The court GRANTS Mr. Bedell's application to proceed in forma pauperis.

        Taking all Mr. Bedell's allegations to be true, and construing his complaint
liberally, the court finds that Mr. Bedell has failed to state a claim for which relief may
be granted. Under 28 U.S.C. $ 1915,{, Mr. Bedell's complaint is DISMISSED. The
Clerk of Court will enter judgment for defendant. No costs.

       This dismissal is a "strike" under 28 U.S.C. $ 19l5(9).6


       IT IS SO ORDERED.




                                                    ATzuCIA E. CAMPBEL
                                                   lhiefJudge




0       Under 28 U.S.C. $ 1915, a prisoner may not bring a civil action without payment
of the court's filing fee, 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, malicious, 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. $ 1915(g). This is commonly known as
the "three strikes ruIe."

                                             ll
