             3Jn tbe Wniteh gs,tates Qtourt of jfeheral Qtlaitns
                                            (Pro Se)
                                         No. 19-10381
                         (Filed: January 15, 2020 I Not for Publication)

                                                )
 TOMMY LEE STEVENS,                             )
                                                )    Keywords: Takings Clause; Fifth
                       Plaintiff,               )    Amendment; Subject-Matter Jurisdiction;
                                                )    Motion to Dismiss; Tort; Pro Se
        V.                                      )
                                                )
 THE UNITED STATES OF AMERICA,                  )
                                                )
                       Defendant.               )


Tommy L. Stevens, Mount Olive, NC, pro se.

Brad E. Leneis, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources
Division, Natural Resources Section, Washington, DC, with whom was Jean E. Williams,
Deputy Assistant General, for Defendant.

                                    OPINION AND ORDER
KAPLAN, Judge.

       Plaintiff Tommy Lee Stevens brings this action alleging that he has suffered a taking of
his property without just compensation in violation of the Fifth Amendment's Takings Clause
and that the government spoliated evidence (apparently related to that claim). Comp!. at 1,
Docket No. 1. Presently before the Comi is the government's motion to dismiss pursuant to Rule
12(b)(l) or, in the alternative, 12(6)(6) of the Rules of the Court of Federal Claims ("RCFC").
U.S.' Mot. to Dismiss ("Defs. Mot.") at 8, Docket No. 7. For the reasons that follow, the
government's motion to dismiss is GRANTED and Plaintiffs complaint is DISMISSED
without prejudice for lack of subject-matter jurisdiction.

                                       BACKGROUND

        The allegations in Mr. Stevens's complaint concern his prope1iy located at 118 E. Pollock
Street in Mount Olive, Nmih Carolina. Comp!. at 1. According to Mr. Stevens, the property is
"77.88 ft[] wide, which is the distance between both [of his] neighbors['] drive[]way[s] on both
sides." Id. at 1. Though a town map indicates that the prope1iy is 210 feet in depth, the deed
indicates a depth of215 feet. Id. When Mr. Stevens purchased this property in September 2011,
there was a fence in the backyard "at the approximate depth of208 ft," meaning it crossed seven
feet onto his prope1iy (at least according to the deed). Id. at 2. Mr. Stevens alleges that the
woman who owned the prope1iy bordering his backyard "built a building ... within 7 feet of that
side of the fence." Id. In August 2018, Mr. Stevens noticed that "someone was building another



                                                                           7018 1830 0001 4963 6519
fence" in the seven feet between the first fence and the building constructed by Mr. Stevens' s
neighbor. Id. Mr. Stevens called the Mount Olive police and spoke with an officer who suggested
that Mr. Stevens "have the land surveyed." Id. Mr. Stevens "cho[]se not to hire a surveyor
because this was obvious[ly] a s[e]t-up by some believed Federal and State ofN.C. Government
officials." Id. Mr. Stevens alleges that the individuals building the new fence "know absolutely
for sure this property is not their[']s, but are intentionally trying to cause trouble." Id.

        Around April or May of 2019, Mr. Stevens saw that the first fence was being removed,
and, around June of 2019, he noticed that someone had dug "a deep trench along this older lady's
property running from her side of the street back vertical to and intersecting with the original[ ]
fence." Id. Mr. Stevens speculates that this trench, which was subsequently filled with cement,
will serve as a foundation for a "block wall." Id. He alleges that this trench "crosses about 7 feet
of [his] land." Id.

         Mr. Stevens filed his complaint in this court on July 17, 2019, alleging that the foregoing
actions give rise to a takings claim under the Fifth Amendment. Id. at 1. He also broadly alleges
a spoliation of evidence by the government and requests relief in the amount of $15 million. Id.
at 1, 3.

        On September 27, 2019, the govermnent moved to dismiss the complaint for lack of
subject-matter jurisdiction or, in the alternative, for failure to state a claim. Def.'s Mot. at 8. The
government argues that "[e]ven generously read, Mr. Stevens's complaint contains no
nonfrivolous allegation that the federal government has taken any action affecting his deed or
property." Id. at 6. It further argues that Mr. Stevens's spoliation claim sounds in tort and
therefore falls outside this Court's jurisdiction. Id. at 7.

         After receiving an extension, Mr. Stevens filed a response to the government's motion on
November 12, 2019. PL Resp. to U.S. Mot. to Dismiss ("PL 's Resp."), Docket No. 11. In his
response, Mr. Stevens describes at some length a scheme by which the United States Department
of Health and Human Services and the North Carolina Department of Health and Human
Services have allegedly forced him "to pmticipate in a supposed research project without his
consent ... [which is] conducted by use of an illegal contract." Id. at 2. He also states his belief
that certain government agencies "and their associates ha[ve] committed fraud in several ways
and want [him] disposed of," id., and that the defendant "started doing small amounts of damage
to [his] property after [he] purchased it" and eventually "destroyed [his] property from the inside
and outside, us[ing] strong chemicals to burn wood," id. at 4-5. As for his spoliation claim, Mr.
Stevens states that he has "records in some government office that[ have] been altered." Id. at 7.

                                           DISCUSSION

       The Comt lacks subject-matter jurisdiction over all the claims in Mr. Stevens's
complaint. In considering a motion to dismiss for lack of subject-matter jurisdiction, the Comt
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, "inquire into jurisdictional facts" to determine whether it has
jurisdiction. Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991). It is well established
that complaints filed by pro se plaintiffs are held to "less stringent standards than formal



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 pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even
 pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Harris
 v. United States, 113 Fed. Cl. 290, 292 (2013).

        The Tucker Act provides that the Court of Federal Claims "shall have jurisdiction to
render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive depmtment, 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. § 1491(a)(l). However, the Tucker Act-a jurisdictional statute-
"does not create any substantive right enforceable against the United States for money damages."
United States v. Testan, 424 U.S. 392,398 (1976). Thus, a plaintiff must identify a separate
money-mandating source of substantive rights to establish the court's jurisdiction. See Fisher v.
United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant patt).

        This Court's Tucker Act jurisdiction extends to "a nonfrivolous takings claim founded
upon the Fifth Amendment." Moden v. United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005); see
also Chittenden v. United States, 126 Fed. Cl. 251,260 (2016). "Thus, so long as such a claim is
not 'so insubstantial, implausible, foreclosed by prior decisions, or otherwise completely devoid
of merit as not to involve a federal controversy,' the court should hear the complaint."
Chittenden, 126 Fed. CL at 260 (quoting Moden, 404 F.3d at 1341); see also Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 89 (1998).

        Mr. Stevens has failed to state a nonfrivolous claim for compensation under the Fifth
Amendment because he does not allege any action by the federal government with respect to his
prope1ty at 118 E. Pollock Street. See St. Bernard Par. Gov't v. United States, 887 F.3d 1354,
1360 (Fed. Cir. 2018) ("A property loss compensable as a taking only results when the assetted
invasion is the ... result of authorized government action."); Nat'! Food & Beverage Co., Inc. v.
United States, 96 Fed. Cl. 258,264 (2010) (citing Am. Pelagic Fishing Co. v. United States, 379
F.3d 1363, 1372 (Fed. Cir. 2004)) (explaining that, to state a viable takings claim, a plaintiff
must, among other things, allege "that the government's actions amounted to a compensable
taking of [the] property interest" (emphasis supplied) (internal quotation marks omitted)).
Instead, he alleges interference with his property interests by his neighbor or other unknown
individuals. See Comp!. at 2 (detailing the property of "the old lady that lives behind me").

         Mr. Stevens's remaining claims fare no better. There is no independent right of action for
spoliation, as Mr. Stevens has already been informed by this comt in a prior suit. Stevens v.
United States, No. 09-623, 2010 WL 147918, at *1 (Fed. Cl. Jan. 7, 2010) ("No federal law
supports a freestanding lawsuit for spoliation."); id. (citing 28 U.S.C. § 1491(a)(l)) (noting also
that "if there were a cause of action for spoliation, it would arise in tort, and would not be
enforceable in this court").

       Further, the Court will not consider the allegations presented in Mr. Stevens's response
that were not presented in the complaint. See Michels v. United States, 72 Fed. Cl. 426, 431-32
(2006) (declining to consider claims presented in plaintiff's brief opposing a motion to dismiss
where the new claims were not included in the complaint); see also Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ("[I]t is axiomatic that a complaint may not be
amended by the briefs in opposition to a motion to dismiss."). Even were the Comt to consider


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these contentions, they are implausible and nonsensical. Therefore, they are insufficient to either
establish the Court's jurisdiction or to state a claim for relief. Indeed, most are similar to other
frivolous claims that Mr. Stevens has unsuccessfully sought to pursue in this court on multiple
occasions. See, e.g .. Stevens v. United States, No. 14-268C, 118 Fed. Cl. 707 (2014) (dismissing
Mr. Stevens' s claim that the government placed a transceiver inside his body without his
consent); Stevens v. United States, No. 12-478C, 2013 WL 151715 (Fed. Cl. Jan. 14, 2013)
(same); Stevens v. United States, No. 10-509C, 2011 WL 1883010 (Fed. Cl. May 17, 2011)
(same); Stevens v. United States, No. 09-338C, 2009 WL 3650874, at *1 (Fed. Cl. Oct. 28,
2009) (listing other cases brought in various federal district courts with similar allegations).

                                         CONCLUSION

        For the foregoing reasons, the government's motion to dismiss is GRANTED and the
complaint is DISMISSED without prejudice for lack of subject-matter jurisdiction. The Clerk
is directed to enter judgment accordingly. Each side shall bear its own costs.



       IT IS SO ORDERED.



                                                     ELAINE D. KAPLAN
                                                     Judge




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