       3Jn tbe Wniteb ~tate5
                                          ORIGINAL
                                            <!Court of jfeberal (!Claint.S
                                          No. 15-585 C
                                    (Filed October 22, 2015)
                                   NOT FOR PUBLICATION
                                                                      FILED
**** ********************
                         *                                           OCT 2 2 2015
                                               *                    U.S. COURT OF
DENNY-RAY HARDIN,                              *                   FEDERAL CLAIMS
                                               *
                     Plaintiff,                *
             v.                                *
                                               *
THE UNITED STATES,                             *
                                               ·);



                     Defendant.                *
                                               *
* * * ** ** ** **   •k•ic   * * * ** * * ** * ~-

                     MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       The matter before the Court is the defen dant's motion to dismiss this case for
lack of subject-matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the
United States Court of Federal Claims (RCFC). For the reasons discussed below,
defendant's motion is GRANTED due to plaintiffs failure to state a claim within
this court's jurisdiction.

                                       I. BACKGROUND

       Plaintiff Denny-Ray Hardin is a prisoner at the Federal Correctional
Institution in Big Spring, Texas.1 Mister Hardin filed t his case against the United
States on June 9, 2015, alleging conspiracy, deprivation of his civil rights, First and
Eighth Amendment violations, and due process violations. The government moved
to dismiss plaintiffs complaint for lack of subject-matter jurisdiction.



       1 Mister Hardin was found guilty of 21 counts of fraud in violation of 18
U.S.C. § 514 (creating fictitious obligations) and 18 U.S.C. § 1341 (mail fraud), and
is consequently serving a 120 month sentence. United States u. Hardin, 489 F.
App'x 984 (8th Cir. 2012).
       Mister Hardin has previously filed at least three different cases with the
Court of Fod01·al Claims. Two of these cases were dismissed for lack of subject-
ma tter jurisdiction and failure to state a claim ; the third case is still pending. See
Hardin v. United States, No. 1:13-cv-00812-MCW, (Fed. Cl. February 24, 2014);
Hardin u. United States, No. 1:14-cv-00557-CFL, (Fed. Cl. September 26, 2014);
Hardin u. United States, No. 1:15-cv-00426-MMS, (Fed. Cl. April 28, 2015).
Additionally, plaintiff has two cases currently pending in the Northern District of
Texas. See Hardin v. Batts, No. 15-cv-00021-P (N.D. Tex. January 26, 2015);
Hardin u. Batts, No. 15-cv-00043-P (N.D. Tex. March 2, 2015).

       The facts supporting plaintiffs complaint can be separated into two different
categories: allegations against Judge Jorge A. Solis of the Northern District of
Texas and his clerks, and allegations against Bureau of Prisons staff. First, Mr.
Hardin claims that Judge Solis and his clerks have conspired to obstruct justice,
depriving him of his First Amendment right s and giving rise to a cause of action
under 42 U.S.C §§ 1985 (2), (3) . See Compl. at 2-3. Mister Hardin complains that
Judge Solis and his clerks conspired to restrict his First Amendment right to
petition the government by refusing to issue a summons to Wardon Myron L. Batts.
Id. This relates to the first of the two district court cases pending before Judge
Solis. Hardin v. Batts, No. 15-cv-00021-P (N. D. Tex. January 26, 2015). Plaintiff
contends that Judge Solis's failure to issue a subpoena to Warden Batts is evidence
of a conspiracy to deprive plaintiff of his civil rights protected by the First
Amendme nt. Compl. at 3.

       Second, plaintiff alleges that Warden Batts, Director of the Federal Bureau of
P risons Ch arles Samuels, and Case Manager Yarbar conspired to keep him in
isolation, which h e argues has resulted in the infliction of cruel and unusual
punishment. Id. Plaintiff alleges that his rights were violated when t he
aforementioned government officials refused to relocate him to a prison facility
closer to his domicile a nd family. Id. at 13-14. Mister Hardin contends that he h as
suffered mental anguish, gained fifty pounds, and experienced insomnia as a result
of being so far removed from his family. Id. Plaintiff alleges that the named
government officials conspired to deprive him of his constitutional rights when t h ey
denied him his relocation request, thereby giving rise to a cause of action under 42
U.S.C. § 1983 and violating 18 U.S.C. § 241 (conspiracy against rights) and 18
U.S.C. § 242 (deprivation of rights under color of law). Id. at 3.

       Based on these alleged injuries an d on a variety of causes of action, plaintiff
seeks damages for pain and suffering, punitive damages, and an order of relocation.
Id. at 14. Tho majority of the complaint, pages four through twelve, is the original
argument filed in case No. 15-21, which is still pending before Judge Solis. See
Def.'s Mot. to Dismiss App. at A39-A50, A63.




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       The government's response argues that plaintiffs claims do not fall under our
court's subject-matter jurisdiction and thus, under RCFC 12(b)(l), the case must be
dismissed. Mot. to Dismiss at 1, 6- 10. Defendant also notes that plaintiff has a
simila1· case pending before the Northern District of Texas, which additionally bars
Mr. Hardin from seeking redress in this court. Id. at 6-7 (citing 28 U.S.C. § 1500).
Finally, the government contends that the type of relief plaintiff seeks is not
available in this court. Id. at 7, 10. Plaintiff has submitted two documents
opposing the government's motion, the second of which has been filed as a sur-roply.
See Answer to Def.'s Mot. to Dismiss, (August 3, 2015), ECF No. 6 (Pl.s' Resp.); Pl.'s
Opp. to Def.'s Mot. to Dismiss, (August 28, 2015), ECF No. 9 (Pl.'s Sur-reply). Both
have been reviewed and considered by the Court.

                                  II. DISCUSSION
A. Subject-Matter Jurisdiction

         Under RCFC 12(b)(l), this court must dismiss claims that do not fall within
its subject-matter jurisdiction. When considering a motion to dismiss a case for lack
of subject-matter jurisdiction, courts will accept as true all factual allegations the
non-movant made and draw all reasonable inferences in the light most favorable to
that party. See Scheuer u. Rhodes, 416 U.S. 232, 236 (1974); Pixton u. B&B Plastics,
Inc. , 291 F.3d 1324, 1326 (Fed. Cir. 2002) (requiring that on a motion to dismiss fo1·
lack of subject-matter jurisdiction this court views "the alleged facts in the
complaint as true, and if the facts reveal any reasonable basis upon which tho non-
movant may prevail, dismissal is inappropriate"); CBY Design Builders v. United
States, 105 Fed. Cl. 303, 325 (2012).

       While a pro se plaintiffs filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside this court's jurisdiction from being dismissed. See, e.g., Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). The party invoking a court's jurisdiction
bears the burden of establishing it and must ultimately do so by a preponderance of
the evidence. See McNutt u. General Motors Acceptance Corp., 298 U.S. 178, 189
(1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1998); Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991).

B. Analysis

      While the Court must interpret the complaint liberally, the majority of the
complaint, pages four through twelve, is, by Mr. Hardin's own admission "the
original arguments and law" initially brought before Judge Solis. Compl. at 4. To
the extent that plaintiff is seeking review of Judge Solis's actions, the Court lacks
subject-matter jurisdiction. Also, to the extent that the claims that Mr. Hardin
brings are ones he stated in his pending district court cases, the Court docs not
have jurisdiction.

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       The remaining claims, construed broadly, fall into three categories: civil
rights claims, criminal claims, and constitutional claims. This court does not have
jurisdiction over those claims. To the extent that one could construe plaintiffs
claims as requesting a review of his criminal conviction, this court lacks
jurisdiction. Jones v. United States, 440 F. App'x 916, 918 (Fed. Cir. 20 11); Carter v.
United States, 228 Ct. CL 898, 900 (1981).

       As to relief, plaintiff specifically requests an unspecified sum of money for
pain and suffering, punitive damages, and an order requiring the Bureau of Prisons
to relocate him to a facility closer to his h ome and family. Compl. at 14. The Court
cannot award punitive damages and cannot order the Bureau of Priso ns to relocate
Mr. Hardin. As the Court does not have jurisdiction over any of Mr. Hardin's
claims, t he Court cannot award any money damages. 2

       1. The Court Lachs Subject-Matter Jurisdiction to R eview Judge Solis's
          Actions

       This court lacks s ubject-matter jurisdiction over plaintiffs request to review
Judge Solis's actions (or inactions) in his case in the Northern District of Texas. See
Compl. at 14. This court "does not have jurisdiction to review the decisions of
district courts ... relating to proceedings before those courts." Joshua v. United
States, 17 F.3d 378, 380 (Fed. Cir. 1994).3 Moreover, "[t]his Court lacks jurisdiction
to consider claims which amount to collateral attacks on criminal convictions."
Perkins v. United States, No. 13-023C, 2013 WL 3958350, at *3 (Fed. Cl. July 31,
2013).4 Accordingly, this court lacks the jurisdiction to review the case before Judge
Solis and evaluate whether he or his clerks "conspired" against t he plaintiff 01· to
determine if due process has been violated in that proceeding.

      2. The Court Lacks Subject-Matter Jurisdiction over Claims Mr. Hardin Has
         Brought in His Two Pending Cases in the Northern District of Texas

      Mister Hardin cunently has two lawsuits pending in tho Northern District of
Texas. See Hardin u. Batts, No. 15-cv-00021-P (N.D. Tex. January 26, 2015);

      2  Plaintiff also claims that Mr. Mandlebaum, t he Department of Justice
attorney in this matter, docs not have standing to represent the United States. Pl.'s
Resp. at 2-4. This argument is baseless. See 28 U.S.C. § 516.

       s Plain tiff, citing Supreme Court cases covering territorial courts (Balzac v.
Porto Rico, 258 U.S. 298 (1922) and Mool~in v. United States, 303 U.S. 201 (1938)),
incorrectly asserts that the United States District Court for the Northern District of
Texas is not an Article III court. See Pl.'s Resp. at 16; Pl.'s Sur-reply at 4--6.
      4 Plaintiff in his opposing papers disclaims any intent to r aise criminal law
claims. See Pl.s' Resp. at 14-15; Pl.'s Sur-reply at 11.

                                         -4-
Hardin v. Batts, No. 15-cv-00043-P (N.D. Tex. March 2, 2015). In Hardin v. Batts,
No. 15-21, he makes the same allegations, states similar facts, and requests the
same relief as here. See Mot. to Dismiss App. at A39- 50. This court does "not have
jurisdiction of any claim for or in respect to which the plaintiff ... has pending in
any other court any suit or process against the United States ...." 28 U.S.C.
§ 1500 (2012). Two lawsuits are "for or in respect to the same claim ... if they are
based on substantially the same operative facts, regardless of the relief sought in
each suit." United States v. Tohono 0 'Odham Nation, 131 S. Ct. 1723, 1731 (2011).
Both the operative facts and the relief sought in the two lawsuits are essentially the
same, and thus t h is court does not have jurisdiction due to 28 U.S.C. § 1500.
Plaintiff in his complaint seemingly acknowledges that he is raising many of the
same claims here as he did in the district court. See Compl. at 4. While Mr. Hardin
appears frustrated with the speed with which Judge Solis is addressing these two
pending cases, it appears t hat the delay with these proceedings may be due to an
issue with the payment of the filing fee.

       3. The Court Lacks Subject-Matter Jurisdiction over Plaintiff's Civil R ights
          Claims

        Plaintiff alleges that defendant violated 42 U.S.C. sections 1983 and 1985.
Mister Hardin alleges that J udgc Solis, his clerks, and Federal Bureau of Prisons
officials violated his constitutional rights and maintains t hat he h as a right to
redress under the civil rights statutes. This court lacks jurisdiction because the
district courts have exclusive jurisdiction over such claims. "[T]hc Court does not
have jurisdiction to consider civil rights claims brought pursuant to 42 U.S.C.
§§ 1981, 1983, or 1985 because jurisdiction over claims arising under the Civil
Rights Act resides exclusively in tho district courts." Marlin v. United States, 63
Fed. CL 475, 476 (2005); see also Bowles v. United States, No. 14·1241C, 2015 WL
4710258, a t *3 (Fed. Cl. July 31, 2015).5 As such, this court lacks jurisdiction to
hear plaintiffs civil rights claims.6




      5 Moreover, 42 U.S.C. §§ 1981, 1983, 1985, and 1986 apply to actions of state
and local, not federal , officials. See Griffith v. United States, No. 14-793C, 2015 WL
1383959, at *2 (Fed. CL Mar. 20, 2015).

      6 In his response to the government's motion to dismiss, plaintiff also cites to
22 Am Jur. 2d § 257. A legal treatise cannot be the basis of jurisdiction in this court
because jurisdiction in this court is limited to claims founded 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." 28 U .S.C.
§ 149l(a)(l) (2012).

                                         . 5.
       4. The Court Lacks Subject-Matter Jurisdiction over Plaintiff's Criminal
          Claims

       Plaintiff alleges that defendant violated 18 U.S.C. sections 241 and 242.
Compl. at 3. Such claims are misplaced. Section 241 provides for criminal penalties
for those conspiring against the exercise of rights, and 18 U.S.C. § 242 sets the
criminal punishments for actions under color of law that deprive one of rights based
on a person's status as an alien or by reason of color or race. These statutes "are
criminal statutes that provide no basis for a civil action in any court." Clarke v.
United States, No. 10-283C, 2010 WL 2143675, at *2 (Fed. Cl. May 24, 2010). The
Court of Federal Claims does not have jurisdiction to entertain criminal matters.
Joshua, 17 F.3d at 379; Jones, 440 F. App'x at 918. Thus, plaintiffs criminal claims
are dismissed for lack of jurisdiction.

      5. The Court Lachs Jurisdiction over Plaintiff's Constitutional Claims

       Plaintiff claims that his First, Fifth, and Eighth Amendment rights have
been violated. The Court's jurisdiction, under the Tucker Act, requires that a
plaintiff identify a substantive som·ce of law that creates the right to money
damages. Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). The Eighth
Amendment is not a money-mandating provision. Trafny v. United States, 503 F.3d
1339, 1340 (Fed. Cir. 2007). Standing alone, the First Amendment does not
"command the payment of money." United States v. Connolly, 716 F.2d 882, 887
(Fed. Cir. 1983); see also Jiron v. United States, 118 Fed. Cl. 190, 199 (2014).

       As to plaintiffs due process claims under the Fifth Amendment, these, too,
are not within our coui-t's jurisdiction. The Fifth Amendment's Due Process Clause
is not money-mandating. Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.
2013). 7 Plaintiffs constitutional claims, as a consequence, are not based on money-
mandating provisions and thus fall outside this court's jurisdiction.

      6. The Court Lacks Jurisdiction over Plaintiff's Claim for Non-Monetary
         Relief and Punitive Damages

      Mister Hardin requests that this court order the Director of the Bureau of
Prisons to comply with BOPs policies and reassign him to a different prison facility.
Compl. at 14. Demands for such declaratory or injunctive relief are outside of the
Court's jurisdiction. Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997);


      7  The Due Process Clause of the Fifth Amendment may only be a basis for
our jurisdiction when a claim seeks the return of money paid to the foderal
government, under the rubric of an illegal exaction. See Aerolineas Argentinas v.
United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); Coleman v. United States, No.
13-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014).

                                        -6-
Brunson v. United States, No. 10-837C, 2011WL2784596, at *2 (Fed. CL July 12,
20 11).

        As an additional basis for the Court's a uthority to issue the declaratory relief
pla intiff seeks, he argues that this court h as j urisdiction under 28 U .S.C. § 1361, a
statute which enables district courts to compel an officer of the United States t o
perform a duty. CompL at 10. The Court of Federal Claims is not a federal district
court. Ledford u. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002). As such, this
power given to district courts does not extend to t h e Court. Plaintiff conten ds t hat
government officials violate d the Bureau of Prisons program statement 5100-2,
dated October 7, 1982. Compl. at 6-7. But, no money-mandating provision of this
regulation has been ide ntified to support our court's jurisdiction.

      And finally, our court lacks jurisdiction t o award punitive damages. Garner
v. United S tates, 230 Ct. CL 941, 943 (1982). The relief t h at the plaintiff seeks is
beyond our court's jurisdiction and, hence, its power.8

                                  III. CONCLUSIO N
      For the forego ing re asons, the defendant's motion t o dismiss this case
p ursuant to RC FC 12(b)(l) is GRANTED due to the plaintiffs failure to state a
claim within this court's jurisdiction. The CleI'k is directed to close the case.

IT IS SO ORDERED.




        B Plaintiffs unopposed motion for in forma p auperis status is GRANTED.
Prisoners seeking to proceed in forma pauperis are required to pay, over time, the
filing foe in full. 28 U.S.C. § 1915(b). Thus, plaintiff shall be assessed, as a partial
payme nt of this court's filing fe e, an initial sum of twe nty porcen t of t he grea ter of
(1) the average monthly deposits into his account, or (2) t he average monthly
balance in his account for the six-month period immediately preceding tho filing of
h is complaint. Id. § 1915(b)(l). Thereafter, l\!Ir. Hardin shall be re quired to make
monthly payments of twenty percent of the preceding month's income credited to h is
account. I d. § 19 15(b)(2). The agency having custody of plaintiff shall forward
payments from p laintiffs account to the Clerk of t he Court of Federal Claims each
t ime the account balance exceeds $10 and until such t ime as the filing fee is paid in
full. Id.


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