                                                                                            FILED
                                                                                          APR     s0   20t5

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                                      No. 14-1218C
                                         Pro    Se
                                                                                        '*ie8oo'-'SJoflL

                                   (Filed: April30,2015)


LARRYE. EALY,                                        Tucker Act; 28 U.S.C. g l49l; Subject
                                                     Matter Jurisdiction; RCFC l2(b)(1);
                      Plaintiff,                     Fourth Amendment; Fifth Amendment
                                                     Due Process Clause; Fourteenth
                                                     Amendment; Federal Tort Claims Act;
                                                     28 U.S.C. $$ 1346, 2671-80; Contract
THE UNITED STATES OF AMEzuCA,                        Disputes Act;41 U.S.C. g 71Oa@Xl);
                                                     Pendent Jurisdiction.
                      Defendant.




       Larry E. Ealy,Tro|wood, Ohio, Plaintiff, pro      se.

       Melissa M. Devine, Commercial Litigation Branch, Civil Division, United States
       Department of Justice, Washington, D.C., for defendant. With her on the briefs
       werc Deborah A. Bynum, Assistant Director, and Robert E. Kirschman, Jr.,
       Ditector, Joyce R. Branda, Acting Assistant Attorney General.


                         MEMORANDUM OPINION AND ORDER

       Kaplan, Judge.

        Plaintiff, Lany E. Ealy ofTrotwood, Ohio, appearing pro se, filed a complaint
contending that, among other things, he is entitled to money damages for injuries he suffered
following a beating by six police officers employed by the city of Dayton, Ohio. The United
States (hereinafter "the govemment") has moved to dismiss the complaint for lack ofsubject
matter jurisdiction or, in the altemative, for failure to state a claim upon which reliefcan be
granted. For the reasons discussed below, the Court concludes that it lacks jurisdiction to
address plaintiff s claims. Accordingly, the government's motion to dismiss pursuant to RCFC
12(b)(1) is GRANTED and this case is DISMISSED without prejudice.

                                       BACKGROUND

        According to plaintiff, on March 14, 1990, he went to the Dayton Municipal Court
Complex C'DMCC') to address several traffic violations. Am. Compl. Ex. 12 at.2. plaintiff
alleges that he was assaulted by city ofDayton and county police while he was "handling his
business inside the [DMCC]." Am. Compl. fl lxxii. Plaintiff further alleges that various public
officials and his lawyer intentionally or negligently conspired to deprive him ofhis constitutional
rights and the consequent damages for the assault. Am. Compl. u ciii.

          Plaintiff filed an action under 42 U.S.C. $ 1983 in the United States District Cou( for the
Southem Dishict of Ohio against the officers involved in the incident. See Ealv v. Citv of
Dayton,No.95-3969,1996U.S.App.LEXIS33236(6thCir.Dec. 16, 1996). Followingalgg4
trial, the jury found that although the defendant had used excessive force, the defendant had not
proximately caused Mr. Ealy's injuries, and it therefore rendered a verdict against Mr. Ealy and
awarded him no damages. Id. at * 1-2. Mr. Ealy sought judgment as a matter of law or, in the
altemative, a new trial, both of which the district court denied; the United States Court of
Appeals for the Sixth Circuit affirmed this decision. ld. at *2.

        Dissatisfied with the result of the trial and the Sixth Circuit decision, Mr. Ealy has filed
numerous complaints and petitions for writs ofhabeas corpus in various United States District
Courts against Federal and Ohio judges as well as Ohio officials and entities. See. e. g., Ohio v.
Ealy, No. l:09-cv-245,2009 U.S. Dist. LEXIS 41240, at *4-17 (S.D. Ohio Apr. 24,2009)
(providing a history of Mr. Ealy's litigation in the Southem District of Ohio). In addition, Mr.
Ealy has twice petitioned the Sixth Circuit for a writ of mandamus and other relief retating to his
1994 trial, which the Court denied. See In re Elbey, No. 11-3597, 201 1 U.S. App. LEXIS 26690
(6th Cir. Aug. 5, 2011); In re Ealy, No. 09-3422, 2009 U.S. App. LEXIS 29849 (6th Cir. June
12,2009).

                                           DISCUSSION

         In deciding a motion to dismiss for lack of subject matter jurisdiction, the court accepts as
true all undisputed facts in the pleadings and draws all reasonable inferences in favor ofthe
plaintiff. Trusted Integration v. United States,659 F.3d 1159, 1163(Fed.Cir.2011). The
plaintiff bears the burden ofestablishing subject matter jurisdiction by a preponderance ofthe
evidence. Brandt v. United States, 710 F.3d 1369,1373 (Fed. Cir. 2013). It is well established
that complaints that are filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even
pro se plaintiffs must persuade the Court that jurisdictional requirements have been met.
Bemard v. United States, 59 Fed. Cl. 497, 499 (2004), affd, 98 F. App'x 860 (2004).

         The Court of Federal Claims has jurisdiction under the Tucker Act to hear "any claim
against the United States founded either upon the Constitution, or any Act ofCongress or any
regulation ofan executive department, or upon any express or implied contact with the united
States, or for liquidated or unliquidated damages in cases not sounding in tort.', 28 U.S.C. g
1491(a)(1) (2012). The Tucker Act waives the sovereign immunity of the United States to allow
a suit for money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not
confer any substantive rights. United States v. Testan,424U.5.392,398 (1976). Therefore, a
plaintiff seeking to invoke the court's Tucker Act jurisdiction must identifii an independent
source ofa substantive right to money damages from the United States arising out ofa conuacr,
statute, regulation, or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation
Admin., 525 F.3d 1299,1306 (Fed. Cir. 2008).



                                                  2
         Plaintiff contends that the Court has jurisdiction to hear his tort claims against the
govemment "for allowing the Dayton and County Police Department to assault him in violation
of the 4th Amendment" and his tort claims against federal employees who intentionally or
negligently acted in their administrative or judicial duties. Am. Compl. 10. In addition to citing
the Tucker Act, plaintiff cites to a multitude of constitutional provisions, statutes, federal cases,
and state law causes of action as the alleged bases for the Court's jurisdiction. These include the
Federal Torts Claims Act C'FTCA') as well as state common law tort causes of action, Am.
Compl. flfl i-iv, vi-xxvii, xxxvi, xlvii-lxii, clxvii-clxxx, cclxxvii-ccclxv; Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), Am. Compl. flfl iv, xxviii-
xxxv, lxxiii; the Racketeering Influence Comrpt Organization (RICO) statute, Am. Compl. iv,
xxxvi-xxxvii, xl-xlvi, lxxxvi, ccclxvi-ccclxxiii; 42 U.S.C. $ 1983 and other civil rights starures;
and various Constitutional Amendments, Am. Compl. fl cxl (alleging violations of the Fourteenth
and Fifth Amendments), 28 U.S.C. $ 1343,42 U.S.C. $$ 1983, 1985, 1988, Am. Compl. flfl xxv,
cxxxxiii, cxl-clviii, cclxxvii; Monell v. Dep't of Soc. Servs. of N.Y.,436 U.S. 65S (1978), Am.
Compl. ifftf cxxvi, ccxxvii; 28 U.S.C. $$ 455, 1331, 1337 , 1367, t441,2341-51, Am. Compl. ,lfg
xxxvii, lxiv-lxv, cxxxix, cxlv; the Administrative Procedure Act, 5 U.S.C. $ 702, Am. Compl. flfl
lxii; and the Ohio Constitution as weil as Massachusetts and Ohio State laws, Am. Compl flfl
clix-clxvi. Finally, Mr. Ealy seeks to have this Court entertain his claims under the common law
doctrine of pendent jurisdiction as set forth in United Mine Workers of Am. v. Gibbs, 383 U.S.
715 (1996), Am. Compl. fl xxxviii. Unforlunately for plaintiff, none ofthese provides a proper
basis for this Court's jurisdiction, even if plaintiff s complaint is held to "less stringent standards
than formal pleadings drafted by lawyers." Haines,404 U.S. at 520.

          In addition to naming the United States as a defendant, plaintiff names several federal
judges as well as the City of Dalton and various employees of the City of Day.ton. Am. Compl.
 1-1 1 . See Compl. tf i. The Court lacks jurisdiction over actions against Federal judges.
Coleman v. United States, 116 Fed. Cl. 461,470 (2014); Coleman v. United States, No. 14-
413C,2014U.S.ClaimsLEXIS1396,at+ 8(Fed.Cl.Dec. 12,2014). Further,theUnitedStates
is the only proper defendant in this Court. United States v. Sherwood, 3l2 U.S. 584, 588 (1941).
The Court, therefore, lacks jurisdiction over all non-federal defendants. See Moore v. Durango
Jail. in Maricopa Cntv.. Phoenix. Ariz.,77 Fed. Cl.92,95 (2007) ("When a plaintiff s complaint
names . . . local, county, or state agencies, rather than federal agencies, this court has no
jurisdiction to hear those allegations.").

        It is unclear from the complaint what claims (if any) Mr. Ealy is alleging against the
United States. But assuming that the United States has been named as a defendant in this case,
the Court lacks jurisdiction over the claims alleged. Thus, the Court lacks jurisdiction to reach
Mr. Ealy's claims that his civil rights under the Fourth Amendment, the Fifth Amendment Due
Process Clause, the Fourteenth Amendment or Federal Civil rights laws were violated. Miller v.
united states, 67 Fed. cl. 195, 199 (2005) ("Although this court may exercise jurisdiction over
claims 'founded . . . upon the Constitution,' the scope of this court's jurisdiction over
constitutional claims is limited to claims arising under provisions of the constitution that
mandate the payment of money.") (citing 28 U.S.C.$ 1a91(aX1)); LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed. Cir. 1995) (observing that the court does not have jurisdiction over claims
under the Fourteenth Amendment); Camrth v. United States , 627 F .Zd, 1068, 1081 (Ct. Cl. l9g0);
(finding that the Court ofFederal Claims lacks iurisdiction over claims arisins under the Fifth
Amendment). Mr. Ealy's claims of violations of his Fourth Amendment rights under a Bivens
theory are similarly beyond this Court's jurisdiction. Brown v. United States, 105 F.3d 621, 623-
24 (Fed. Cn.1997). Further, claims under 28 U.S.C. $ 1343 and 42 U.S.C. $$ 1983, 1985, 1988
are properly brought in a United States District Court, not this Court. 42 U.S.C. $ 1343. Nor
does Monell, 436 U.S. 658, give rise to a cause of action in this court, as it pertains to local
govemments' liability under 42 U.S.C. $ 1983.

        As to Mr. Ealy's claims that sound in tort, the Tucker Act expressly excludes such claims
from this Court's jurisdiction. 28 U.S.C. g 1a91(a)(1) (stating that the "Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States . . . in cases
not sonndins in tort" (emphasis added)); Brown, 105 F .3d at 623. Actions under the FTCA, 28
U.S.C. $$ 1346,267l-80, are properly brought in the United States District Courts, not this
one. See 28 U.S.C. $ 1346(bX1). And although Mr. Ealy also cites the Contract Disputes Act
C'CDA), 41 U.S.C. $ 7104(bX1), as a basis for his claim, he has failed to allege any facts
sufficient to show a contract with the United States or identify the terms ofthe contract or the
provisions that have been breached. Consequently, the CDA does not provide a basis for the
exercise of the Court's jurisdiction.

         In his complaint, Mr. Ealy cites an assortment of other statutes that do not confer
jurisdiction on this Court because they are not money mandating. Thus 28 U.S.C. $ 455, which
 governs judicial misconduct, is not money mandating. Uzamere v. United States, No. 10-585C,
2010 WL 3528897, at *3 (Fed. Cl. Sept. 3, 2010). Neither is the Administrative Procedure Act
 (APA) a money-mandating statute. Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006).
Furthermore, the APA may not be used to review the actions of federal judges or state entities.
Pierce v. United States, 117 Fed. Cl. 798, 801 (2014);5 U.S.C. $ 702. l\h. Ealy's causes of
action based on the Ohio Constitution or the state laws of Massachusetts and Ohio are also not
within this Court's jurisdiction. 28 U.S.C. g 1a91(a\1) (providing the Court of Federal Claims
with jurisdiction to hear "any claim against the United States founded either upon the
 Constitution, or any Act ofCongress or any regulation ofan 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"). Further, because the Court lacks jurisdiction over claims of
 criminal misconduct, neither Title l8 nor RICO provide a basis for the exercise ofjurisdiction in
this case. Joshua v. United States, 17 F.3d 378,379 (Fed. Cir. 1994); Treviffo v. United States,
 113 Fed. Cl.204,209 (2013) C'RICO is a criminal statute and this court lacks jurisdiction to
 entertain claims brought under a criminal statute.").

        Mr. Ealy also seeks to have this Court entertain his claims under the common law
doctrine of pendent jurisdiction as set forth in Gibbs, 383 U.S. at 725-26. Am. Compl. fl xxxviii.
Even assuming that this Court could ever exercise pendent jurisdiction, it could not do so here
because, as explained, it lacks original jurisdiction over any ofMr. Ealy's claims. See. e.s.,
Sioux Hone)' Ass'n v. Hartford Fire Ins. Co.,672F.3d 1041, 1055 (Fed. Cir.2012) (holding that
the Court of Intemational Trade may not exercise pendent jurisdiction over defendants where the
court had "no original jurisdiction over any ofthe claims" against those defendants).

        Finally, as noted above, Mr. Ealy has filed numerous complaints in various jurisdictions
in an attempt to recover the damages to which he believes he is entitled. To the extent that Mr.
             Ealy seeks in his complaint to appeal the decisions of the United States District Court and Sixth
             Circuit that he was not entitled to any damages for the injuries he suffered during the incident in
             1990, this Court is not the proper forum for such appeals. Decisions of the district courts are
             appealable to the United States Courts ofAppeals. See 28 U.S.C. $ 1291. Decisions ofthe
             Courts of Appeals are appealable to the United States Supreme Court. 28 U.S.C. $ 1254.

                                                      CONCLUSION

                    For the reasons stated above, the Court GRANTS the govemment's motion to dismiss
             pursuant to RCFC 12(bX1). Accordingly, plaintiff s complaint is DISMISSED without
             prejudice for lack ofjurisdiction.
\   -_,-..
                   PlaintifPs motions for summary judgment, ADR refenal, and extension of time to serve
             defendants by cd-rom areDENIED as moot. Plaintiffs application to proceed in forma pauperis
             is GRANTED for the limited purpose of dismissing the complaint.

                    The Clerk ofthe Court is directed to enter judgment accordingly.

                    IT IS SO ORDERED.

                                                                    A-/r(-
                                                               ELAINED, KAPLAN
                                                               Judge
