                                      ORI#EF$At
            llntbt @nftr! $ltilen               @ourt of fplersl @luims
                                             No. 16-653C
                                       Filed November 8,2016
                                      NOT FOR PUBLICATION                         FILED
                                                                                 Nov - I 2016
 THOMAS WASHAM,                                                                 U.S. COURT OF
                                                                               FEDERAL CLAIMS
                         Plaintiff,
                                                       Pro Se; Rule l2(bXl), Subject-
                                                       Matter Jurisdiction; 28 U.S.C. $ 1495;
                                                       28 U.S.C. $ 2513, Unjust Conviction; 28
 THE UNITED STATES,                                    U.S.C. $ l49l(a); In Forma Pauperis.

                         Defendant.


       Thomas llasham, Dallas, PA, plaintiffpro se.

       John S. Groat, Trial Attomey, Elizabeth Hosford, Assistant Director, Robert E.
Kirschman,,./r., Director and Benjamin C. Mizer, Principal Deputy Assistant Attomey General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC, for defendant.

                           MEMORANDUM OPINION AND ORDER
GRIGGSBY. Judee

I.     INTRODUCTION

       Plaintiffpro   se, Thomas Washam, brought this action seeking review of the decisions       of
the United States District Court for the Middle District of Pennsylvania to dismiss and/or transfer
two cases that he filed challenging his state criminal conviction and sentence to incarceration.
Compl. at   l   The govemment has moved to dismiss plaintifPs complaint for lack of subject-
matter jurisdiction, pusuant to Rule   l2(b)(l) ofthe Rules of the United   States Court of Federal

Claims ("RCFC"). In addition, plaintiff has filed motions for summary judgment, for judgment
on the pleadings and forjudgment, pursuant to RCFC 56, 12(c) and 54(b), respectively.       Plaintiff
has also moved to proceed in this matter   informa paupens. For the reasons set forth below, the
Court: (l) GRANTS the govemment's motion to dismiss; (2) DENIES plaintifPs motion for
summary judgment, motion for judgment on the pleadings and motion for judgment as moot; and
(3) GRANTS plaintiff s motion to proceed informa pauperis.




                                                                ?tl1,'{ Le00 8000       l0l3    5?3?
I        FACTUAL AI\D PROCEDURAL BACKGROUND'

         A.   Factual Background

         Plaintiff pro se, Thomas Washam, commenced this action on May             3   1,   2016.   See

generally Compl. Plaintiff is cunently incarcerated at the State Conectional Institution located
in Dallas, Pennsylvania in connection with his conviction for first degree murder under
Pennsylvania state law.2 Pl. Mot. to Proceed 1n Forma Pauperis at 2-3; see 28 U.S.C. $ 1915(a);
see   also28 U.S.C. $ 2503(d).

         Plaintiff s complaint is difficult to follow.   ,See   generally Compl. But, it appears that the
gravamen of plaintiff s complaint is a challenge of the decisions ofthe United States District
Court for the Middle District of Pennsylvania to dismiss and/or transfer two cases that plaintiff
previously filed in that court challenging his conviction and sentence to incarceration. See
generally Compl.

         On December 14,2015, plaintiff filed a civil case in in the United States District Court
for the Middle District of Pennsylvania challenging his conviction and sentence to incarceration.
See   generally complaint, Ilasham v. Mahallay, et al., 1:15-cv-2397 (M.D. Pa. Dec. 14,2015).
On January 20,2016, the district court dismissed that case with prejudice. Order, I4/asham v.
Mahallay, et ql.,l:15-cv-2397 (M.D. Pa. Jan.20,2016). On April 4, 2016, plaintiff
subsequently filed a petition for a writ ofhabeas corpus in the United States Dishict Court for
the Middle District of Pennsylvania raising similar claims. Petition for        Writ of Habeas Corpus,
ll/asham v. Mahallay, l:16-cv-564 (M.D. Pa. Apr. 4, 2016). On May 9,2016, the district court
translerred that case to the United States District Court for the Eastem District ofPennsylvania,




I The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint and the
exhibits attached thereto ("Compl.") and the govemment's motion to dismiss ("Def. Mot."). Except
where otherwise noted, the facts recited herein are undisputed.

2
  ln 1987, plaintiff was convicted offirst degree murder, possession ofan instrument of crime and
possession of a firearm without a license in the State of Pennsylvania. Washam v. Delaware County
Court of Common Pleas, et al.,No.95-cv-5697,2006 U.S. Dist. LEXIS 88154, *2 (E.D. Pa. Dec. 5,
2006). Subsequently, plaintiffwas sentenced to life in prison. Def. Mot. at 1; see also Memorandum,
l{asham v. Proud,No. l3-0606 (8.D. Pa. June 10, 2013) at p.2. On March 9, 1990, the Pennsylvania
Superior Court affirmed the judgment of sentence. .fd.
where the case is pending. Order,lVasham v. Mahallay, et al.,l:16-cv-564 (M.D. Pa. May 9,
2016); l(asham v. Mahallay,2:16-cv-2250 (8.D. Pa. May 9, 2016).

               In the complaint in this matter, plaintiff alleges that "the transfer ofthe case ofThomas
Washam v. Lawrence Mahallay in the United States District Court [for] the Middle District                                   of
Pennsylvania Civil Action No.                  1 :   l6-cv-0564, dated May 91h,2016 is without power or authority
and cannot be enlarged by Congress." Compl. at                        2. Plaintiff   also attaches as an exhibit to the

complaint a copy of the United States District Court for the Middle District of Pennsylvania's
Order dated May 9,2016, transferring this case to the Eastern District of Pennsylvania. Compl.
at Ex      I   .   In addition, plaintiff attaches as an exhibit to the complaint a copy of the United States
District Court for the Middle District of Pennsylvania's Order dated January 20,2016,
dismissing his other litigation before that court with prejudice. Id. at Exh.                       L




               Lastly, plaintiff names Lawrence Mahallay, the warden for the State Correctional
lnstitution; United States District ChiefJudge Christopher C. Conner; and Andrew S. Kovach,
Esq., district attomey of Delaware County Court of Common Pleas as defendants in this action.
1d.   at   1   .   As relief, plaintiff seeks to recover       $   1,000,000.00 in damages from the United States.
Id. at 7.

               B. ProceduralBackground
               Plaintiff filed the complaint in this matter on May 31, 2016.                See   generaily Compl. On

June 24, 2016,           plaintiff filed   a   motion for leave to proceed      in   forma pauperis. See generally Pl.
Mot. to Proceed In Forma Pauperus. On July 6,2016, plaintiff filed                          a   motion for summary
judgment, pursuant to RCFC 56. See generally PL Mot. for Sum. Judg.

               The government did not file a timely response to plaintiff s complaint. And so, on
August 8, 2016, the Court issued an order directing the government to show cause, on or before
August 12, 2016, as to why a response was not timely filed pursuant to RCFC l2(a)(l). See
generally Order to Show Cause. On August 10,2016, the govemment filed amotion to dismiss
the complaint for lack of subject-matter jurisdiction, pursuant to RCFC 12(bX                           I   ).   See   generally
Def. Mot. On August 12,2016, the govemment filed a response to the Court's Order to Show
Cause. See generally Def. Resp. to Order to Show Cause.
         On August 22,2016, plaintiff filed a response to the govemment's motion to dismiss.
See   generally PL Resp. On August 30,2016, plaintiff filed a motion for judgment on the
pleadings. See generally Pl. Mot. Jmt. on Pl. On September 13,2016, plaintiff filed a
supplemental response to the govemment's motion to dismiss. See generally PL Suppl. Resp.
Lastly, on October 26,2016, plaintiff filed a motion forjudgment, pursuant to RCFC 54(b). See
generally Pl. Mot. Jmt.

III.     STANDARDSOFREVIEW
         A.   Pro Se Litigants

         Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., lnc.,535 F.App'x919,
925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp.,501 F.3d 1354, 1356 (Fed.
Cir. 2007)).

         When determining whether a complaint filed by apro se plaintiff is sufficient to survive a
motion to dismiss, this Court affords more leeway under the rules topro se plaintiffs than to
plaintiffs who are represented by counsel.     See Haines v.   Kerner,404 U.S. 519,520 (1972)
(holding rhat pro se complaints, "however inartfully pleaded," are held to "less stringent
standards than formal pleadings drafted by lawyers."); Matthews v. United States,750 F.3d 1320,

1322(Fed. Cir.2014). But, there "is no duty on the part ofthe trial court to create a claim which

[the plaintiffl hasnotspelledoutinhispleading;'Lengenv.UnitedStates,100Fed.Cl.3i7,
328 (2011) (brackets existing; citations omitted). And so, while "apro se plaintiff is held to a
less stringent standard than that of a   plaintiff represented by an attomey, . . . lhe pro   se   plaintiff,
nevertheless, bears the burden ofestablishing the Court's jurisdiction by a preponderance of the

evidence." Riles v. UnitedStares,93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States,
303 F.3d 1357, 1359 (Fed. Cir. 2002)). Given this, the Court may excuse ambiguities, but not
defects, in the complaint. See Colbert v. United States,6lT F.      App'x 981,983 (Fed. Cir.2015);
see also Demes v. United States,52 Fed. Cl. 365, 368 (2002)        ("[T]he leniency afforded pro se
litigants with respect to mere formalities does not relieve them ofjurisdictional requirements.")
(citation omitted).
         B. Jurisdiction And RCFC l2(bxt)
         It is well established that this Court's subject-matter jurisdiction must be established
before it addresses the merits of a claim. Plains Comm. Bankv. Long Family Land & Cattle Co.,
554 U.S. 316,324 (2008) (citing S/eel Co. v. Citizensfor a Better Env'l, 523 U.S. 83, 88-89
(1998) (Subject-matter jurisdiction is "a threshold question that must be resolved . .     .   before
proceeding to the merits.")). When deciding a motion to dismiss upon the ground that the Court

does not possess subj ect-matter j uri sdiction pursuant to RCFC 12(bX1), this Court must assume

that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences
in the non-movant's favor. Ericl<son v. Pardus,551 U.S. 89,94 (2007); see a/so RCFC 12(bxl).
But, plaintilfbears the burden ofestablishing subject-matter jurisdiction, and he must do so by a
preponderance of the evidence. Reynolds v. Army &       Air Force Exch. Serv., 846 F .2d 7 46,7 48
(Fed. Cir. 1988). And so, should the Court determine that     "it   lacks jurisdiction over the subject

matter, it must dismiss the claim," Matthews v. United States,72Fed.Cl.274,278 (2006)
(citing l2(h)(3)).

         In this regard, the United States Cour! of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute . . .     ."   Kokkonen v

Guardian Life Ins. Co. ofAm.,5l1 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:

         [A]ny 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.

28 U.S.c. $   lael(a)(l) (2011).

         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 ofFederal Claims] whenever the substantive right
 exists;' United States v. Testan,424 U.S.392,398 (1976). And so, to pursue a substantive right
against the United States under the Tucker Act, a    plaintiff must identifu and plead a money-
mandating constitutional provision, statute, or regulation; an express or implied contract with the
United States; or an illegal exaction of money by the United States. Cabral v. United States, 317
F.   App'x 979,981 (Fed. Cir. 2008) (citing F,rher v. United States,402F.3d 1167, 1173 (Fed.
Cir.2005)); Norman v. United States,429F.3d 1081, 1095 (Fed. Cir.2005). "[A] statute or
regulation is money-mandating for jurisdictional purposes       ifit'can fairly    be interpreted as

mandating compensation for damages sustained as a result ofthe breach ofthe duties [it]
impose[s]."' Fisher,402 F.3d at 1173 (quoting United States          v.   Mitchell,463 U.S. 206,219
( r e83)).


         Specifically relevant to this matter, it is well established that the Court "does not have
jurisdiction to review the decisions ofdistrict courts or the clerks ofdistrict courts relating to
proceedings before those cowts." Joshua v. United Stutes,17 F.3d 378,380 (Fed. Cir. 1994));

see also Jones v. United States,      No. l5-1044,2016 WL 447144, *1 (Fed. Cl. Feb.4,2016). And
so, the Court must dismiss a claim seeking to review the decisions          ofdistrict courts for lack of
subject-matter jurisdiction. /d.

IV.      DISCUSSION
         A. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Claim
         The govemment has moved to dismiss plaintiffs complaint for lack of subject-matter
jurisdiction upon the ground that the Court does not      possess   jurisdiction to consider plaintiffs
challenge ofhis state court criminal conviction and sentence to incarceration. Def. Mot. at 1-2.
For the reasons discussed below, the Court agrees that it does not possess jurisdiction to consider
plaintiff    s   claim. And so, the Court must dismiss the complaint for lack of subject-matter
jurisdiction. RCFC l2(bXl).

                     |.   The Court Does Not Possess Jurisdiction To Consider
                          Plaintiff s Challenge Of The District Court's Decisions

         As an initial matter, to the extent that plaintiffseeks to challenge the district court's
decisions to dismiss and/or transfer his cases before that court, the Court does not possess
jurisdiction to consider plaintiffs claim. In the complaint, plaintiff alleges that the United States
District Court for the Middle District of Pennsylvania's decision to transfer his petition for         a   wfit
ofhabeas corpus to the United States District Court for the Eastem District ofPennsylvania is
"without power or authority." Compl. at 2. Plaintiff also narnes the United States District Judge
who presided over that case, as well as over plaintiff s other district court litigation challenging
his conviction and sentence to incarceration, as a defendant in this action. See generally Compl,.
            The United States Court ofAppeals for the Federal Circuit has held that the United States

Court ofFederal Claims does not possess jurisdiction to review the decisions ofdistrict courts
relating to proceedings before those courts. Joshua, 17 F.3d at 3 80 (Court lacks jurisdiction to
entertain appeal ofdistrict court review of state criminal proceedings); Mora v. United States,
1   I8   Fed. Cl. 713,716 (201a) (" [T]his court does not have jurisdiction to review the decisions      of
state courts, federal bankruptcy courts, federal district courts, or federal circuit courts    of
appeals."); Jones, No. l5-1044,2016        WL 447144, *1 (Fed. Cl. Feb.4,2016);see also Carter           v.

United States,228 C|.Cl.898,900 (1981). It is also well established that this Court does not
possess     jurisdiction !o review or consider criminal matters. See Cooper v. United States, 104
Fed. Cl. 306, 311-12 (2012) (holding that this Court cannot review criminal matters).          A careful
reading ofthe complaint demonstrates that a review ofthe district court's decisions with respect

to plaintiff s criminal conviction and sentence to incarceration is precisely the reliefthat plaintiff
is seeking in the complaint. And so, the Court must dismiss plaintiff s complaint for lack          of
subject-matter jurisdiction.3 RCFC 12(bX1).


                   2,   The Court Does Not Possess Jurisdiction To
                        Consider Plaintiff s Unjust Conviction Claim

            In addition, to the extent that plaintiff asserts an unjust conviction claim in the complaint,
plaintiff    has also failed to demonstrate that the Court possesses   jurisdiction to consider that

claim. In this regard, it is well established that this Court    possesses   jurisdiction to "render
judgment upon any claim for damages by any person unjustly convicted of an offense against the

United States and imprisoned." 28 U.S.C. $ 1495. It is also without dispute in this case that
plaintiff    s sentence   to incarceration stems from his conviction ofvarious criminal offenses under
Pennsylvania state law. See generally ll/asham v. DeL Cty Court of Common Pleas, et al.,No.



3
  The Court is also without jurisdiction to consider plaintiffs claims against private individuals. United
States y. Sherwoo4 312 U.S. 584, 588 (1941) (holding that, for suits filed in the United States Court of
Federal Claims, "ifthe relief sought is against others than the United States the suit as to them must be
ignored as beyond thejurisdiction ofthe court"); Stephenson v. United States,58 Fed. Cl. 186, 190 (2003)
(holding that "the orly proper defendant for any matter before this court is the United States, not its
officers. nor anv other individual").
95-cv-5697,2006WL3524384,*2(E.D.Pa.Dec.5,2006). Giventhis,plaintiffhasnot
demonstrated that his unjust conviction claim involves a claim for damages by an individual who
has been unjustly convicted for an offense against the United States and imprisoned. And so,

plaintiffhas not met his burden to show that the Court          possesses   jurisdiction to consider this
claim. Id.

        B. Plaintiff      s Requests   For Other Relief Are Moot

        The Court must also deny several motions that plaintiff has filed seeking various reliefas
moot. First, on July 6, 2016, plaintiff filed       a   motion for summary judgment, pursuant to RCFC
56.   See   generally Pl. Mot. for Sum. Judg. On August 30,2016, plaintiff also filed a motion for
judgment on the pleadings, pursuant to RCFC 12(c). See generallyPL Mot. Jmt. on Pl. Lastly,

on October 26,2016, plaintiff filed a motion forjudgment, pursuant to RCFC 54(b). See
generally Pl. Mot. Jmt. Because the Court has determined that it does not possess subject-matter
jurisdiction to consider plaintiff     s   claim, the Court dismisses plaintiff   s   motions as moot. See,

e.g., Ilojtczakv. UnitedStates,No. l2-449C,2012WL4903025,at*4 (Fed. Cl. Oct. 17,2012)
("Because . . . plaintiff still has not raised allegations over which this cowt has jurisdiction, the

court denies these motions as moot.").

        C. Plaintiffs Motion For Leave To Proceed
           In Forma Pauperr.t Satisfies The Statutory Requirement

        As a final matter, plaintiff filed a motion to proceed informa pauperis in this matter on
June   24,2016.    See   generally Pl, Mot. to Proceed,lri Forma Pauperis. This Court may authorize
commencement of a lawsuit without prepayment of fees when a plaintiff submits an affidavit
including a statement of all assets, a declaration that he or she is unable to pay the fees, and a
statement    ofthe nature of the action and a beliefthat he or she is entitled to redress.        See 28

U.S.C. $ 1915(aXl); see also 28 U.S.C. 0 2503(d). In cases where the plaintiff is a prisoner, as
is the case here, the    plaintiff must also submit "a certified copy of [his] trust      fr.rnd account

statement (or institutional equivalent) . . . for the 6-month period immediately preceding the

filing of the complaint[.]" Bedell v. United States, No. l5-374, 2015 WL 3823946, at *3 (Fed.
Cl. June 18, 2015) (quoting 28 U.S.C. $ 1915(a)(2)); Spencer v. United States,98 Fed. Cl. 349,
354 n.8 (2011). In addition, a prisoner granted in forma pauperis status is still "required to pay
the full amounr of a filing fee" over rime.4 28 U.S.C. $ l9l5(b)(1).


        In this case, plaintiffhas provided a certified copy of his trust fund account statement in
support of his motion to proceed in forma pauperis. See generally PL Mot. to Prcceed In Forma
Pauperis. After reviewing plaintiff     s submission, the Court finds that    plaintiff   has satisfied the

statutory requirements to proceed, informa pauperis, And so, the Court grants plaintiffs motion
to proceed informa pauperis for the limited purpose of resolving the government's motion to
dismiss.


V.      CONCLUSION

        In sum, when construed in the light most favorable to plaintiff, the complaint fails to
demonstrate that the Court possesses subj ect-matter jurisdiction to consider       plaintiff   s   claims.
And so, the Court must grant the govemment's motion to dismiss and dismiss the complaint for
lack of subjeclmatter jurisdiction. RCFC l2(b)(l).
        Because the Court concludes that it does not possess subj ect-matter j uri sdiction to

consider plaintifPs claims, the Court also denies as moot plaintiff s motions for summary
judgment, forjudgment on the pleadings and forjudgment. Lastly, in light of plaintiff s pro se

status-and plaintiff   s representation that he is unable   to pay the Court's filing fee-the Court
grants plaintifPs request to proceed in this matter in forma pauperis for the limited purpose            of
resolving the jurisdictional issues raised by the complaint.

        And so, for the foregoing reasons, the Court:

            (1) GRANTS the government's motion to dismiss;



" The Court is required to "assess and, when funds exisl collect, as a partial payment ofany court fees
required by law, an initial partial filing fee of 20 percent of the greater o(A) the average monthly
deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6-
month period immediately preceding the filing of the complaint or notice of appeal." 28 U.S.C.
$ l9l5(bXl). Following payment of the initial partial filing fee, "the prisoner shall be required to make
monthly payments of20 percent ofthe preceding month's income credited to the prisoner's account."
l9l5(bX2). ln addition, a prisoner may not proceed in forma pauperis if the prisoner, while detained,
previously had three or more complaints dismissed as frivolous, malicious, or for failure to state a claim
upon which relief may be granted, "unless the prisoner is in imminent danger of serious physical injury."
28 U.S.C. $ l9l5(g). The dismissal ofthis case counts as a "strike" under 28 U.S.C. $ l9l5(g).
         (2) DENIES    as moot   plaintif s motion for sunmary judgrnent motion for judgrnent
             on the pleadings and motion for judgnent; and

         (3) GRANTS plaintiffs motion to proceed informa pauperis.

      The Clerk's Office is directed to ENTER final judgrnent in favor of the governmeNlt
DISMISSING the complaint.

      No Costs,

IT IS SO ORDERED.




                                              l0
