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                llrtbt    @nfteU               9ltafti   @ourt       otfeUersl [,lsims
                                                     No. 15-776C
                                                Filed January 12,2016
                                                FOR PUBLICATION                   FILED
                                                                                JAN   I   2   2016

 MELVINJOHNSON,                                                                U.S. COURT OF
                                                                              FEDERAL CLAIMS
                            Plaintifl
                                                                 Pro Se; Rule 12(bX1), Subject-Matter
                                                                 Jurisdiction; Rule 12(b)(6), Failure to
                                                                 State a Claim; 28 U.S.C. $ 1915; 28
 THE UNITED STATES,                                              U.s.c. $ 1491(a); 28 U.s.c. $ 13a60)(1);
                                                                 In Forma Pauperis.
                            Defendant.




        Melvin Johnson, Texarkana, TX, plaintiffpro se.

       Jimmy S. McBirney, Trial Attomey; Brian A. Mizoguchi, Assistant Director; Robert E.
Kirschman, Director; Benjamin C. Mizer, Principal Deputy Assistant Attomey General,
Commercial Litigation Branch, Civil Division, United States Depanment of Justice, Washington,
DC, for defendant.

                             MEMORANDUM OPINION AI\D ORDER
GRIGGSBY. Judge

I.      INTRODUCTION

        Plaintiff pro se, Melvin Johnson, brought this action challenging the United States
Bureau ofPrisons' decision not to perform surgery to remove fatty tissue from his stomach and
seeking $7,000,000 in monetary damages from the United States. The govemment has moved to

dismiss the complaint for lack of subject-matter jurisdiction, pursuant to Rule 12(b)(1) of the
Rules of the United States Court of Federal Claims ("RCFC"), or in the alternative, for failure to

state a claim upon which relief can be granted, pursuant to RCFC             l2(bX6). Plaintiff      has also

moved to proceed in this maller in forma pauperis and moved for court-appointed counsel. For
the reasons set forth below, the Court GRANTS defendant's motion to dismiss, GRANTS
plaintiff   s   motion to proceed   in   forma pauperrs and DENIES plaintiff s motion to appoint
counsel.
II.       FACTUAL AND PROCEDURAL BACKGROUND'

          A.      Factual Background

          Plaintiff pro se, Melvin Johnson, is an inmate at the Federal Correctional Institution in
Texarkana, Texas. Def. Mot. at      2. In this   case,   plaintiff challenges a decision by the United
States Bureau ofPrisons      ("BoP") not to perform surgery to remove fatty tissue from his stomach.
See   generally Compl. As relief, plaintiff seeks to recover $7,000,000 from the United States.
Compl. at    1.


          In the complaint, plaintiff alleges that, on May 16,2014, he "was scheduled to go to
Delta Medical Center for treatment of Lapoma's [sic][that are located] on the right side of [his]
stomach." Id.     at2. Plaintiff further alleges   that, a BoP physician, Dr. Edna Prince, told him that
he was going to the hospital to "be evaluated for surgery to remove the fatty         tissue."   1d.

Plaintiff claims, however, that "the surgery never happened" and that the fafty tissue in his
stomach is "getting larger each day )'    Id.    As a result, plaintiffalso claims that he is experiencing
increasing pain. Id.


          In addition, plaintiffhas anached to the complaint a copy of the personal injury
administrative tort claim, dated June 3,2014, that he previously submitted to the BoP. Id. atEx.
l.    Plaintiffhas also attached the BoP's July 9,20l4letter acknowledging receipt of this claim.
1d. In plaintiff s administrative claim, plaintiff seeks $7,000,000 in damages for personal injury
from the BoP.     Id.   Plaintiff has not provided the Court with any information about the status of
his administrative claim. Id.


          B,      ProceduralBackground

          Plaintiff filed the complaint in this matter on July 23,2015.      See   generally Compl. On
that same date, plaintiffalso filed a motion to proceed informa pauperls, alleging that he lacks
the financial means to pay the Court's filing fee. See generally Pl. Mot. to Proceed In Formq
Pauperis. On August 18,2015, defendant hled a motion to dismiss plaintiff              s   complaint for lack


I The facts recited in this Memorandum Opinion and Order are taken from plaintifPs complaint ("Compl.
at _"); defendant's motion to dismiss ("Def. Mot. at _"); and plaintiff s response to defendant's motion
to dismiss ("P1. Resp. at _").
of subject-matter jurisdiction, prrsuant to RCFC l2(bx1), or in the altemative, for failure to state
a   claim, pursuant to RCFC 12(bX6). See generally Def. Mot.

          On August 31,2015,         plaintiff filed   a   motion requesting that the Court appoint him
counsel. See generally Pl. Mot. On September 17,2015, the govemment responded to
plaintiffs motion to appoint counsel          stating that the government takes no position on      plaintiff      s

motion.    See   generally Def . Resp. to Pl. Mot. Plaintiff did not file a timely response to
defendant's motion to dismiss. And so, on September 28,2015, the Court issued an order
instructing plaintiffto show cause on or before October 13,2015, as to why this action should
not be dismissed for failure to prosecute pursuant to RCFC 41(b). See generally Order to Show
Cause. On October 15, 2015, plaintiff responded to the Court's Order to Show Cause and also
filed   a response   to the govemment's motion to dismiss. See generallyPl. Resp. to Order to
Show Cause; Pl. Resp. On December 1,2015, plaintiff filed medical records with the Court.                       ,See

generally Pl. Records. The govemment has not filed a reply brief in support of its motion to
dismiss.


III.      STANDARDS OF REVIEW

          A.       Pra   .Se   Litigants

          Plaintiffis proceeding in this matler pro           se, without the benefit   ofcounsel. And   so, the

Court applies the pleadings requirements leniently. Beriont v. GTE Labs,, lnc.,535 F. App'x
919,925-6 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Co4p., 501 F.3d 1354, 1356 (Fed.
Cir. 2007)). When determining whether a complaint filed by apro se plaintiffis sufficient to
survive a motion to dismiss, this Court affords more leeway under the rules topro se plaintiffs
than plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 5 19, 520 (1972)
(holding that 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.20l4). But, there "is no duty on the part ofthe trial court to create a claim which

[the plaintiffl has not spelled out in his pleadings." Lengen v. United States,100 Fed. CI.317,
328 (2011) (brackets existing; citations omitted). In this regard while "a pro se plaintiff is held
to a less stringent standard than that ofa plaintiff represented by an attomey, . . . the pro se
plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
preponderance     ofthe evidence."   Riles v. United States,93 Fed.   Cl. 163, 165 (2010) (citing
Taylor v. United States,303 F.3d      1357   , 1359 (Fed. Cir. 2002). And so, rhis Court may excuse
ambiguities, but not defects, in the complaint. See Colbert v. United States, No.20l4-5029,
2015 WL 2343578, at *1 (Fed. Cir. May 18, 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.").


         B.       RCFC 12(bX1)

         It is well established that this Court's subject-matter jurisdiction must be established
before it addresses the merits of a claim. Plains Comm. Bank v. Long Family Land & Cattle Co.,

554 U.S. 316,324 (2008) (citing Steel Co. v. Citizens for a Better Env't,523 U.S. 83, 88-89
(1998) (Subject-matter jurisdiction is "a threshold question that must be resolved . .      .   before
proceeding to the merits.")). When considering whether to dismiss an action for lack of subject-

matter jurisdiction, the Court "must assume all factual allegations to be true and draw all

reasonable inferences in the plaintifPs      favor." Redondo v. United States,542 F. App'x908,910
(Fed.Cir.2013)(citingHenkev.UnitedStates,60F.3d795,797(Fed.Cir.                   1995)). However,
"plaintiff   bears the burden of establishing subject matter   jurisdiction by a preponderance of the
evidence." See, e.g., Green v. United Stqtes,586 F. App'x 586, 587 (Fed. Cir. 2014); see also
McNuu v. Gen. Motors Acceptance Corp. of Indiana,298 U.S. 178, 189 (1936) (noting that the
burden ofproving that the matter is properly before the Court should rest on the party seeking
the Court's jurisdiction). If subject-matter jurisdiction is found to be lacking, the Court must
dismiss the action. RCFC 12(bX1).


         In this regard, the United States Court 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. of Am.,5l I U.S. 375,377 (1994). In particular, 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, of 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. $ 1ae1(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 Stdtes v. Testan, 424 U.5.392,398 (1976). And      so, to pursue a substantive    right
against the United States under the Tucker Act, a plaintiff must identify and plead a money-

mandating constitutional provision, statute or regulation, or an express or implied confiact with
the United States. Cabral v. United States,317 F.   App'x 979,981 (Fed. Cir.2008).

       In addition, this Court does not possess jurisdiction to consider tort claims. 28 U.S.C.     $

1491(a)(1); 12 U.S.C. $ 1346(bX1) (2006). Pursuant to 28 U.S.C. $ 1346(bXl), United States
District Courts:


       [S]hall have exclusive jurisdiction of civil actions on claims against the United
       States, for money damages, accruing on and after January I , 1945, for injury or loss
       of property, or personal injury or death caused by the negligent or wrongful act or
       omission of any employee of the Govemment while acting within the scope of his
       office or employment, under circumstances where the United States, if a private
       person, would be liable to the claimant in accordance with the law of the place
       where the act or omission occurred.

28 U.S.C. $ 1346(bX1).


       c.      RCFC 12(bX6)

       Under Rule 12(bX6) of the Rules of the United States Court of Federal Claims, a
defendant may move for dismissal ofthe complaint if plaintiff "fail[s] to state a claim upon
which relief can be granted." RCFC 12(bX6). To survive a motion to dismiss under RCFC
l2(bX6), "a complaint must contain sufficient factual matter, accepted   as true,   to 'state a claim to
relief that is plausible on its face."' Ashqoft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Beil
Atl. Corp. v. Twombly,550 U.S. 544,570 (2007)). "A claim has facial plausibility when the
plaintiffpleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. (citing Twombly,ssO U.S. at 556). Pleadings
must establish "more than an unadomed, the-defendant-unlawfully-harmed-me accusation." 1d
(citingTwombly, 550 U.S. at 555). "A pleading that offers'labels and conclusions' or 'a
formulaic recitation ofthe elements ofa cause of action will not do."' 1d. (quoting Twombly,
550 U.S. at 555). And so,"apro se plaintiff still must establish the requisite elements ofhis
claim." Sahagun-Pelayo v. United States,No. 2014-5126, 2015 WL 1004362, at *2, (Fed. Cir.
Mar. 9,2015) (intemal citations omitted).

        D.      28 U.S.C. S 191s

        Title 28, United States Code, section 1915 govems the treatment ofplaintiffs proceedings
informa pauperfs. Section 1915(a) provides in pertinent part that:


                [The Court] may authorize the commencement, prosecution or
                defense ofany suit, action or proceeding,
                                                  civil or criminal, or appeal
                therein, without prepayment of fees or security therefor, by a person
                who submits an affidavit that includes a statement ofall assets such
                prisoner possesses that the person is unable to pay such fees or give
                security therefor. Such affidavit shall state the nature ofthe action,
                delense or appeal and affiant's belief that the person is entitled to
                redress.

28 U.S.C. $ 1915(a)(1). With respect to cases filed by prisoners, section 1915 further provides
that:


                A prisoner seeking to bring a civil action or appeal ajudgment in a
                civil action or proceeding without prepayment of fees or security
                therefor, in addition to filing the affidavit filed under paragraph (1),
                shall submit 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. $   l9l5(a)(2).   Prisoners are not, however, relieved       ofthe obligation to pay the Court's
filing fee. Section   191 5 also   requires that   "if a prisoner brings a civil action or files an appeal in
forma pauperis, the prisoner shall be required to pay the full amount ofa filing fee. . . . After
payment of the initial partial filing fee, the prisoner shail be required to make monthly payments

of20 percent ofthe preceding month's income credited to the prisoner's account." 28 U.S.C.                $

le15(bX1) and (b)(2).

        Section 1915(e) further allows the Court to request an attorney to represent any person
unable to afford counsel. 28 U.S.C. g 1915(e)(1). In addition, this provision also sets forth the
circumstances under which the Court may dismiss a case proceeding in forma pauperis. In this
regard, section 1915(e)(2) requires that:
                  [T]he court shall dismiss the case at any time if the court
                 determines that-

                 (A) the allegation of poverty is untrue; or
                 (B) the action or appeal-
                     (i) is frivolous or malicious;
                     (ii) fails to state a claim on which relief may be ganted; or
                     (iii) seeks monetary relief against a defendant who is immune
                     from such relief.

28 U.S.C. $ 1915(e). And so, the Court must dismiss a complaint               if   the complaint is
deemed to be frivolous, or malicious, faiis to state a claim, or seeks monetary relief against

a defendant that is immune    from such relief.       1d.


IV.       DISCUSSION

          A.     The Court Does Not Possess Jurisdiction To Consider Plaintif?s Claim

          The government has moved to dismiss plaintiff s complaint for lack of subject-matter
jurisdiction upon two grounds. First, the govemment argues that the Court does not possess
jurisdiction to consider plaintiff   s   claim pursuant to 28 U.S.C. $ 1346(bXl), because plaintiff
alleges a negligent or wrongful act or omission of the part of a BoP employee acting within the

scope of her employment. Def. Mot. at         5.   Second, the government also argues that the Court is
without jurisdiction to consider plaintiff     s   claim under the Tucker Act, because his claim sounds
in tort. Id. (citing 28 U.S.C. $ l49l(a). 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 12(bxl).


                 l.      The Court Does Not Possess Jurisdiction To Consider Plaintiff              s

                         Claim Against BoP Employees

         As an initial matter, the Court does not possess jurisdiction to consider plaintiff s claim
challenging the alleged negligent actions of Dr. Prince. It is well established that the United
States   District Courts have exclusive jurisdiction to consider claims regarding      a   "negligent or
wrongful act or omission of any employee of the Govemment while acting within the scope of
his office or employment." 28 U.S.C. $ 1346(bX1).
         In this case, plaintiff alleges that Dr. Prince-a BoP employee-told him that he would be
evaluated for surgery to remove fatty tissue, but that "[t]he surgery never happened and the fatty
tissue is getting larger each day it remains in [his] stomach." Compl. at            2. It appears that
plaintiffis alleging that Dr. Prince engaged in negligent or wrongful acts by deciding not to              go

forward with this snrgery. See generally Compl.

         It is well established that such claims, involving       a   "negligent or wrongful act or
omission" of a BoP employee acting within the scope of her employment, must be brought in a
district court, rather than in this Court. 28 U.S,C. $ 1346(b)(1). Given this, section 1346
deprives this Court ofjurisdiction to consider plaintiff s claim. And so, the Court must dismiss
the complaint. RCFC l2(bX1).


                 2.      Plaintiff   s    Tort Claim Is Also Jurisdictionally Barred

         To the extent that plaintiff is asserting a tort claim regarding the alleged actions ofDr.
Prince or the BoP, the Court similarly does not possess jurisdiction to consider such a claim. 28
U.S.C. $ 1a91(a)(1). In this regard, the Tucker Act explicitly places tort claims beyond the
jurisdiction ofthis Court. Id. ("The United States Court ofFederal Claims shall have jurisdiction
to render judgment upon any claim against the United States . . . not sounding in tort.");
Hernandez v. United States,96 Fed. Cl. 195,204 (2010) ('the Tucker Act expressly excludes tort
claims, including those committed by federal officials, from the jurisdiction of the United States
Court ofFederal Claims" (citing Keene Corp. v. United States,508 U.S.200,2la (1993))). As
discussed above, it appears that     plaintiffis alleging negligence or wrongful acts on the part of Dr.
Prince or the BoP. Because such claims sound in tort, the Court may not consider plaintiffs
claim.

         In addition, it appears that plaintiff is pursuing an administrative remedy to his tort claim
pursuant to the Federal Tort Claims Act. See Compl. at Ex.              L   In this regard, plaintiffhas
attached to the complaint a copy     ofhis personal injury administrative tort claim, dated
June3,2014. 1d. As discussed above,           a   district court, rather than this Court, is the appropriate
judicial forum to pursue plaintiff    s   tort claim. 28 U.S.C. g l3a6@)(1); 28 U.S.C. g lagl(a);
Mendiola v. United States,No. 15-999,2016 WL 81698, at *3 (Fed. Cl. Jan. 6, 2016) (holding
that the Federal Tort Claims Act grants United States district courts exclusive jurisdiction over
tort claims against the United States); Trevifio v. United States, 1 13 Fed. Cl.204,209 (2013)
("This court lacks jurisdiction over claims brought under the FTCA; instead, such claims must be
brought in United States district court."). And so, dismissal of the complaint is wananted.
RCFC r2(bxl).


         B.      Plaintiff Fails To State A Claim Upon Which Relief Can Be Granted

         Dismissal of the complaint is also warranted because the complaint fails to state a claim
upon which relief may be granted. RCFC 12(bX6). In this regard, plaintiffdoes not allege any
facts in the complaint that would entitle him to recover a money damages from the govemment.
See   generally Compl. In fact, plaintiffdoes not allege any wrongdoing on the part of the
govemment in the complaint. 1d. Rather, plaintiff simply alleges that he was told that he would

be evaluated for stomach surgery, and thereafter, the BoP decided not to go forward with the

stxgery. Id. at 2. Plaintiff does not allege in the complaint that this decision was incorrect, or
that the BoP, or Dr. Prince, acted negligently.       Id.   And so, plaintiff s complaint does not state a
plausible legal claim entitling him to relief from this Court. Because the complaint is devoid          of
any facts that warrant granting     plaintiffrelief, the Court must also dismiss the complaint for
failure to state a claim upon which relief may be granted. RCFC 12(b)(6); Twombly,550 U.S. at
570 (plaintiff must plead "enough facts to state a claim to reliefthat is plausible on its face").2


         C.     Plaintiff   s   Motion For Leave To Proceed .Iz Forma Pauperis Satisfies The
                Statutory Requirement

         In addition, plaintiffhas filed a motion to proceed informa pauperis, in which he
requests a waiver   ofthe Court's filing fee.   See    generally Pl. Mot. to Proceed In Forma Pauperis.
This Court may authorize commencement of a lawsuit without prepayment of fees when a person
submits an affidavit including a statement     ofall   assets, a declaration that he or she is unable to

pay the fees, and a statement     ofthe nature ofthe action and a beliefthat he or she is entitled to
redress. See 28 U.S.C. $ 1915(a); see also 28 U.S.C. $ 2503(d). In cases where the plaintiff is a
prisoner, as here, the plaintiff must also submit "a certified copy of [his] trust fund account



2
  Title 28, section 1915, provides an additional ground for dismissal of plaintiff       s   complaint for
failure to state a claim. 28 U.S.C. g 1915(e)(2).
statement (or institutional equivalent) . . . for the 6-month period immediately preceding the

filing of the complaint[.]" 28 U.S.C. $ 1915(a)(2).

        Plaintiff has provided   a copy   ofhis trust fund account statement in support of his motion
to proceed in forma pauperis, but the statement has not been certified. See generally PL Mot. to
Prcceed In Forma Pauperis. A review of         plaintiff   s statement shows that   it is an "lnmate
Statement" printed from the prison's "TRUWEB" system.              1d   On July 1, 2015, plaintiff had an

available balance of $4.54 and a six-month average daily balance of $47.50. 1d. This Court has
accepted such statements as the "institutional equivalent"       ofa certified copy ofthe trust fund
account statement. Bedell v. United States,No.15-374,2015 WL 3823946, at *3 (Fed. Cl.
June 18, 2015) (quoting 28 U.S.C. g 1915(a)(2)); Spencer v. United States,98 Fed. Cl. 349,354
n.8 (2011). And so, after reviewing plaintiff s motion, the Court finds that plaintiff has satisfied
the requirements to proceed in forma pauperis,3


        Nevertheless, a prisoner grante d informa paupe,,i,s status is still "required to pay the full
amount of a filing fee" over time. 28 U.S.C. $ 1915(bX1). The Court is required to,,assess and,
when funds exist, collect, as a partial payment ofany court fees required by law, an initial partial
filing fee of 20 percent of the greater   of{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. $ 191s(bx1).
Following payment ofthe initial filing fee, "the prisoner shall be required to make monthly
payments of 20 percent of the preceding month's income credited to the prisoner's account. The

agency having custody ofthe prisoner shall forward pa1'rnents from the prisoner's account to the

clerk ofthe court each time the amount in the account exceeds $10 until the filing fees are paid."
28 U. S.C. $ l915(b)(2); see Pleasant-Bey v. United States,99 Fed. Cl. 363, 366 (2011); see also
Telemaque v. United States, No.    1l-397, 201I WL 2582201at *5 (Fed. Cl. June 29, 201l). And




3
 A prisoner may not proceed informa pauperis ifthe 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. g l9l 5(g).
This is commonly known as the 'three-strikes rule." The dismissal ofthis case counts as a "strike" under
28 U.S.C. $ lels(g).




                                                    t0
so, the Court grants   plaintiff   s   motion to proceed informa pauperis for the limited purpose of
resolving the govemment's motion to dismiss.


        D.      PlaintifPs Motion To Appoint Counsel Is Denied As Moot

        Lastly, plaintiff has also filed a motion to appoint counsel. See generally Pl. Mot,
Title 28, United States Code, section I 9l 5(e) allows the Court to request an attomey to represent
any person unable to afford counsel. 28 U.S.C. $ 1915(eXl). Nonetheless, because the Court

has determined that    it does not possess jurisdiction to consider plaintiffls claim, plaintiffs
motion to appoint counsel is moot. And so, the Court must deny plaintiff s motion. See, e.g.,
lV'ojtczakv. UnitedStates,No. 12-449,2012WL4903025,at*4(Fed. Cl.Oct. 17,2012)
("Because . . . plaintiff still has not raised allegations over which this court has jurisdiction, the

court denies these motions as moot.").


V.      CONCLUSION

        In sum, even when reading the complaint in the light most favorable to plaintiff,
dismissal of the complaint is warranted, because this Court does not possess subject-matter
jurisdiction to consider plaintiffs claims alleging negligent or wrongful action on the part of a
BoP employee. In addition, the Court does not possess jurisdiction to consider plaintifP s claim
sounding in tort, because jurisdiction to consider such claims rests solely with the district courts.
Finally, dismissal of plaintiffs complaint is also warranted because the complaint does not allege
any wrongdoing on the part of the United States, and as a result, fails to state a claim upon which
relief may be granted. And so, for all of these reasons, the Court must dismiss the complaint.
RCFC l2(b)(l); RCFC l2(bX6).

       The Court also denies plaintiffs motion to appoint counsel as moot, because the Court
has determined that    it does not     possess   jurisdiction to consider plaintiffs claim. Finally, because
of plaintiffspro se status-and his representation that he is unable to pay the Court's filing
fee-plaintiff may proceed in this matler          in   forma pauperis for the limited purpose of resolving
the govemment's motion to dismiss. Plaintiff must, however, make payments to satisfr the
Court's filing fee pursuant to 28 U.S.C. $ 191s(bxl).




                                                            1l
      And so, for the foregoing reasons, thc Court:

         (l)   GRANTS defendant's motion to dismiss;

         (2) DENIES plaintiffs motion to appoint counsel as mcot; and

         (3) GRANTS plaintiffs motion to        procd infonna    pat4teris,subject to his
               obligation to pay the filing fee in tull pursuant to 28 U.S.C. $ 19150).

      The Clerk's Omce is direc.ted to ENTER final judgmeNf in favor of defendant,

DISMISSING thecomplaint No Costs.

      ITISSOORDERED.




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