                   ORIGINAL
     Jf n tbe mlniteb ~tates <!Court of jfeberal <!Claims
                                         No. 13-511 T
                                   Filed: December 5, 2014
                                      NOT PUBLISHED
                                                                              FILED
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                                                                            DEC - 5 2014
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                                                *                          U.S. COURT OF
BENJAMIN WHITFIELD,                    *                                  FEDERAL CLAIMS
                                       *
      Plaintiff, pro se,               *
                                       *
V.                                     *
                                       *
THE UNITED STATES,                     *
                                       *
      Defendant.                       *
                                       *
                                       *
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Benjamin Whitfield, prose.

Gregory S. Knapp, United States Department of Justice, Tax Division, Washington, D.C.,
Counsel for the Government.

                    MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I.      RELEVANT FACTUAL BACKGROUND. 1

       Benjamin Whitfield ("Plaintiff') has been incarcerated in the Florida Department of
Corrections since April 5, 2011. Compl. ~ 2. Sometime prior to his incarceration, Plaintiff filed
a Form 1040-EZ for the 2010 tax year with the Internal Revenue Service ("IRS"). Compl. ~ 1.
On May 25, 2011, while Plaintiff was incarcerated, the IRS advised him, by mail, that it intended
to conduct an audit of his tax returns. Compl. ~ 3.

       On or about March 5, 2012, the IRS issued a refund to Plaintiff in the amount of
$2,927.42. Answer~ 4. On August 6, 2012, Plaintiffs aunt sent the refund check to the Inmate
Trust of the Florida Department of Corrections ("Inmate Trust"). Compl. ~ 7. On or about
August 8, 2012, an Inmate Trust official notified the IRS that Plaintiff was an inmate at the

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         The relevant facts discussed herein were derived from Plaintiffs July 25, 2013
Complaint ("Compl."), exhibits attached thereto ("Pl. Exs. A-E"), and the Government's
February 5, 2014 Answer ("Answer").
Florida Department of Corrections. Compl. ii 8. On August 20, 2012, the IRS notified Inmate
Trust officials that the March 25, 2012 refund was issued in error and requested that it be
returned to the IRS. Compl. ii 9; Pl. Ex. C.

II.    PROCEDURAL HISTORY.

        On July 25, 2013, Plaintiff filed a prose Complaint in the United States Court of Federal
Claims that alleges a claim for "civil damages for unauthorized collection practices[,] pursuant to
2[6] U.S.C. § 7433," and seeks a "Refund Check in the amount of $2,927.42, plus accrued
interest." Compl. at 6. On that date, Plaintiff also filed an application to proceed in forma
pauperis that the court granted on August 1, 2013. On February 5, 2014, the Government filed
an Answer.

        On May 9, 2014, Plaintiff filed a Motion For Subpoena Duces Tecum for IRS and Florida
Department of Corrections communications relating to Plaintiffs refund check. On May 19,
2014, the Government filed a Response. On June 2, 2014, Plaintiff filed a Reply. On July 23 ,
2014, the court issued a Memorandum Opinion And Order, denying Plaintiffs Motion For
Subpoena Duces Tecum. See Whitfield v. United States, 117 Fed. Cl. 609, 611 (2014) ("[N]one
of the information requested in Plaintiffs May 9, 2014 Motion For Subpoena Duces Tecum is
relevant to the exact dollar amount to which [Plaintiff] is entitled.") (internal quotation marks
and citation omitted).

       On July 3, 2014, the Government filed a Motion For Summary Judgment. On September
3, 2014, the Government filed a Motion To Dismiss ("Gov't Mot. To Dismiss"). On September
22, 2014, Plaintiff filed a Response to the Government's Motion To Dismiss ("Pl. Resp .") and a
Response to the Government' s Motion For Summary Judgment. On September 24, 2014, the
Government filed a Reply In Support Oflts Motion To Dismiss ("Gov't Reply").

III.   DISCUSSION.

       A.      Jurisdiction.

        The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S .C. § 1491 , "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 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. § 1491(a)(l). 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 of Federal Claims] whenever the substantive right exists." United States v. Testan , 424
U.S. 392, 398 (1976).

         To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, Constitutional provision, federal statute, and/or executive
agency regulation that provides a substantive right to money damages. See Todd v. United
States, 386 F.3d 1091 , 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the
litigant to identify a substantive right for money damages against the United States separate from
the Tucker Act itself."); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)


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(en bane) ("The Tucker Act ... does not create a substantive cause of action; . . . a plaintiff must
identify a separate source of substantive law that creates the right to money damages. . . . [T]hat
source must be 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source
of substantive law upon which he relies "can fairly be interpreted as mandating compensation by
the Federal Government[.]" United States v. Mitchell, 463 U.S. 206, 216 (1983) (quoting Testan,
424 U.S. at 400). Plaintiff bears the burden of establishing jurisdiction by a preponderance of
the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)
("[O]nce the [trial] court's subject matter jurisdiction [is] put in question .. .. [the plaintiff]
bears the burden of establishing subject matter jurisdiction by a preponderance of the
evidence.").

       B.      Standard of Review for Pro Se Litigants.

         The pleadings of a pro se plaintiff are held to a less stringent standard than those of
litigants represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that
pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). It has been the tradition of this court to examine the record "to
see if [a pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. United States,
412 F.2d 1285, 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a
pro se plaintiffs complaint, the court "does not excuse [a complaint's] failures."
Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995).

       C.      The Government's Argument.

         The Government argues that the court should dismiss the July 25, 2013 Complaint,
pursuant to the "three strikes" rule of the Prison Litigation Reform Act of 1995 ("PLRA"), 28
U.S.C. § 1915(g). Gov't Mot. to Dismiss at 5-6. The Government cites several cases where
Plaintiff's claims have been dismissed as frivolous, malicious, or for failure to state a claim. See
Whitfield v. Paz, Case No. 09-20535, Docket No. 52, at 15 (S.D. Fl. Feb. 19, 2010) ("Prior to his
filing of this case, Whitfield had at least three other civil cases ... [that] were dismissed for
reasons that qualify those dismissals as ' strikes' for purposes of § 1915(g)."); see also
Whitfieldv. Joseph, Case No. 04-61690, Docket No. 75, at 2 (S.D. Fla. Oct. 31 , 2006) (holding
that Plaintiffs claim was "exactly the type of claim precluded by" binding precedent);
Whitfieldv. Kidd, Case No. 03-62057, Docket No. 19, at 2 (S.D. Fla. June 17, 2004) (dismissing
Plaintiffs claims for failure to exhaust administrative remedies under the PLRA); Whitfield v.
Anderson, 1:02-cv-00003, Docket No. 21, at 2 (M.D. Ga. Feb. 27, 2003) (magistrate judge
recommending dismissal of Plaintiff's claims with prejudice for failure to comply with the
court' s orders).

         The Government concedes that it failed to raise the "three strikes" argument in its July 3,
2014 Motion for Summary Judgment; nonetheless, Section 1915(g) "is not an affirmative
defense that must be raised in the pleadings, but an absolute statutory limitation on prisoner
litigation that courts may invoke anytime." Gov't Mot. To Dismiss at 6 (citing Harris v. City of
N. Y , 607 F .3d 18, 23 (2nd Cir. 2010) ("[We] find that a district court can invoke § 1915(g) to
dismiss a prisoner lawsuit even if the 'three strikes rule has' not been raised by the defendant in
the pleadings."). The Government also notes that the United States Court of Federal Claims
previously has dismissed other complaints filed by Plaintiff under the "three strikes rule" sua


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sponte. Mot. to Dismiss at 6 (citing Warren v. United States, 106 Fed. Cl. 507, 509 (2012);
Brown v. United States, 88 Fed. Cl. 795, 798 (2009)). Therefore, the Government requests that
the court vacate its August 1, 2013 Order granting Plaintiffs application to proceed in forma
pauperis, without paying the court' s filing fee. Gov't Mot. To Dismiss at 7. In addition, the
Government requests that the court issue an order to restrict any of Plaintiffs future filings in
this court. Gov't Reply at 2 (citing Brooker v. United States, 107 Fed. Cl. 52, 54 (2012)
(acknowledging the "court's inherent power to sanction bad-faith conduct")).

         D.       Plaintiff's Response.

         Plaintiffs September 22, 2014 Response provides that:

         Plaintiff concedes that the facts as stated by the [Government] concerning the
         "three strikes" provision of the Prison Litigation Return [sic] Act ("PLRA"), 28
         U.S.C. § 1915(g) governs this action.

         Plaintiff request[ s] that the dismissal is without prejudice and that the "Time for
         Filing Suit" is 28 U.S.C. § 2501, because at this time, Plaintiff cannot pay the
         filing fee and it would take quite sometime for Plaintiff to arrange payment of the
         filing fee from a Friend or Family member, which is not a guarantee that such an
         arrangement can be accomplished.

Pl. Resp. at 1.

         E.       The Court's Resolution.

         Section 1915(g) of the PLRA states:

         In no event shall a prisoner bring a civil action or appeal a judgment in a civil
         action or proceeding under this section if the prisoner has, on 3 or more prior
         occasions, while incarcerated or detained in any facility, brought an action or
         appeal in a court of the United States that was dismissed on the grounds that it is
         frivolous, malicious, or fails to state a claim upon which relief may be granted,
         unless the prisoner is under imminent danger of serious physical injury.

28   u.s.c. § 1915(g).
         Applying the PLRA' s "three strikes rule" is straightforward. Plaintiff may not proceed in
forma pauperis, if he/she "has, on 3 or more prior occasions . .. brought an action or appeal in a
court of the United States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). Since 2000,
Plaintiff has filed at least twenty-four civil actions in various federal courts. Mot. To Dismiss at
2. Accordingly, the United States District Court for the Southern District of Florida has
determined that Plaintiff is subject to the PLRA. See Whitfield v. Paz, Case No. 09-20535,
Docket No. 52, at 15 (S.D. Fl. Feb. 19, 2010) (" [D]ue to the existence of those three prior
 'strikes' Whitfield is precluded by the PLRA and § 1915(g) from proceeding in forma
pauperis[.]"). In that case, the district court extensively reviewed Plaintiffs prior filings and
carefully explained why each constituted a strike. Id. at 15-18. It also determined that Plaintiff


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was not truthful in the information provided to the court to prevent the application of § 1915(g),
that constituted "abuse of the judicial process" and warranted another strike. Id. at 18-22.

        The court has no reason to second-guess the several prior United States district courts that
have applied "the three strikes rule" to Plaintiffs complaints and barred him from proceeding in
forma pauperis. Plaintiff has not indicated that he is in any imminent danger of serious physical
injury in the present case; therefore, he may not continue in this case without first paying the
court's filing fee.

        Like Whitfield v. Paz, the application of the PLRA' s "three strikes rule" did not come to
the court's attention until after it granted Plaintiff leave to proceed in forma pauper is. See id. at
22-23. But, the court is required to dismiss the action once it becomes apparent that Section
1915(g) applies. See id.; see also 28 U.S.C. § 1915(g) ("In no event shall a prisoner bring a civil
action .. . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action . . . in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
may be granted[.]") (emphasis added); Johnson v. United States, 82 Fed. Cl. 150, 154 (2008)
(determining that, because § 1915(g) applied, the plaintiffs "complaint must be dismissed").
Furthermore, Plaintiff concedes that the "three strikes rule" bars his action. Pl. Resp. at 1.

IV.     CONCLUSION.

       For these reasons, the Clerk of Court is directed to strike the court's August 1, 2013
Order granting Plaintiffs in forma pauperis status. If Plaintiff fails to pay the filing fee within
30 days, the Clerk of Court is directed to dismiss the July 25, 2013 Complaint without prejudice.


        IT IS SO ORDERED.


                                                      Judge




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