                                                                       ORIOIt{AL
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                                                                               No. 14-913 C              FII-ED
                                                                        Filed: December 11,2014
                                                                        NOT TO BE PUBLISHED            DEC   I r 2014
't:i:**r.:***t,t**,t**,1*'t **'l.,tr' ****,* *** *** ** *** *                                          U,S. COURT OF
                                                                                                      FEDFRAL CLAIMS


LEONARD P. MACHULAS,

                      Plaintiff, pro se,



THE UNITED STATES,

                      Defendant.


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Leonard P. Machulas, pro                                     se.


Reta E. Bezak, United States Department of Justice, Civil Division, Washington' D.C., Counsel
for the Govemment.

                                              MEMORANDUM OPINION AND FINAL ORDER

I.                    RELEVANTFACTUALBACKGROUND.I

        On an unknown date prior to November 2011, Mr. Leonard P. Machulas ("Plaintiff')
states that he was convicted of a criminal offense by the Chatham County Superior Court in
Savannah, Georgia and, thereafter, sentenced to an unspecified term of imprisonment' The
Complaint alleges the existence of a "cover up, and the protection by the Supreme Court of
[Georgia], knowing the judges made a wrong decision and will not talk [sic] or conect this."
Compl. at I. Since November 201 1, Plaintiff has filed complaints with the Civil Rights Division
of the United States Department of Justice arising from "violations ' . ' of my civil rights."
Compl. at 1.



                      I
          The relevant facts were derived from Plaintiffs September 29, 2014 Complaint
("Compl.") and Exhibits attached thereto ("Compl. Ex."). Because Plaintiff does not mark the
Exhibits, the court will describe the relevant documents in the text ofthis Opinion.
         On September 10, 2012, Plaintiff received a Memorandum from the Office of Judge
Timothy R. Walmsley of the Superior Court of Georgia. Compl. Ex. at 5. The Memorandum
states that because the "motion involves a case that has been closed [t]his court carurot provide
the relief that your motion requests." Compl. Ex. at 5.

        On August 26,2014, Plaintiff received a response from the Office of the Inspector
General of the United States Department of Justice, stating that the "matters raised [by Plaintiff]
are outside of [the Office ofthe Inspector General's] investigative jurisdiction." Compl.Ex.at3.

II,    PROCEDURALHISTORY.

        On September 29,,2014, Plaintiff filed a Complaint in the United States Court of Federal
Claims against the United States and Michael Horowitz, the Inspector General of the Department
of Justice, Civil Rights Division. Compl. at 1. The Complaint also lists as defendants: the State
of Georgia; the Superior Court of Chatham County, [Georgia]; the Supreme Court of Georgia;
and a number of private individuals and members of the Judiciary. Compl. at 2. On October 14,
2014, Plaintiff filed a Motion ("P1. Mot.") thar cited Rule 83.3 of the Rules of the United States
Court of Federal Claims (.'RCFC), but did not name a law student or supervising attomey.2
PlaintifPs October 14,2014 Motion also requested Altemative Dispute Resolution of the claim
pursuant to RCFC 16 and Appendix H.

        On October 27,2014, the Govemment filed a Motion To Dismiss, pursuart to RCFC
l2(b)(1) and 12(bX6) ("Gov't Mot."). On the same day, the Govemment also filed a Response
to Motion for Appointment of Counsel ("Gov't Resp.").

IIL    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)(1). 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



       '   RCFC 83.3 provides, in relevant part:

       (a) t. . . ] A law student qualified under RCFC 83.3(b) may enter an appearance in
           this court on behalf of any party in a case provided that: (l) the party on
           whose behalf the student appears has consented in writing; (2) a supervising
           attomey, as defined in RCFC 83.3(d), has indicated approval in writing; and
           (3) the written consent and approval have been filed with the clerk.
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 identifr 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[.]"); see also Fisher v. United States,402F.3d 1167,1172 (Fed. Cir. 2005) (en
 banc) ("The Tucker Act... does not seate a substantive cause of action; . . . a plaintiff must
 identifr 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 Govemment[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army & Air Force
Exch. Serv., 846 F.zd 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter
jurisdiction [is] put in question . . . . [the plaintiffl bears the burden of establishing subject matter
jurisdiction by a preponderance ofthe evidence.").

        B.      Standard Of Review For Pro Se Litigants.

        Pro se plaintiffs' pleadings 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 lhat pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record '1o see if [a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States,412R.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.      Standards For Motion To Dismiss.

                1.      UnderRCFC l2(b)(1).

         A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
 specific areas of substantive law .         . is properly raised by a [Rule] 12(b)(l) motion[.]"
Palmer v. United States,l63 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(b)(1) ("Every
 defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
 a party may assert the following defenses by motion: (1) lack of jurisdiction over the subject
matter[.]"). When considering whether to dismiss an action for lack of subject matter
jurisdiction, the court is "obligated to assume all factual allegations of the complaint to be true
 and to draw all reasonable inferences in plaintiffs favor." Henke,60 F.3d at797.

                2.      UnderRCFC 12(bX6).

        A challenge to the United States Court of Federal Claims' "[ability] to exercise its
general power with regard to the facts peculiar to the specific claim . . . is raised by a [Rule]
12(bX6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC l2(b)(6) ("Every defense to a
claim for reliefin any pleading must be asserted in the responsive pleading . . . . But a pafiy may
assert the following defenses by motion: . . . (6) failure to state a claim upon which relief can be
granted[.]").

       When considering whether to dismiss an action for failure to state a claim, the court must
assess whether "a claim has been stated adequately" and then whether "it may be supported by
[a] showing [ofl any set of facts consistent with the allegations in the complaint      ,"  Bell Atl.
Corp. v. Twombt,    550   U.S.   544,  563  (2007).   The   plaintiff s factual allegations must be
substantial enough to raise the right to relief "above the speculative level." Id. at555. The court
must accept all factual allegations in the complaint as true and make all reasonable inferences in
favor ofthe plainiff. Id.

       D.       The Government's October 27, 2014 Motion To Dismiss.

                l.     The Government's Argument.

        The Govemment argues that the September 29,2014 Complaint fails to allege a claim
against the United States, but instead seeks relieffrom private individuals and from State entities.
Gov't Mot. at 4.

        In addition, "[t]o the extent that [Plaintiffl seeks the reversal of any criminal conviction
against him, the [c]ourt lacks jurisdiction to entertain the action." Gov't Mot. at 4. Pursuant to
28 U.S.C $ 1495, the court's jurisdiction to adjudicate claims for damages by persons unjustly
convicted of an offense against the United States and imprisoned requires Plaintiff to assert an
ultimate finding of innocence, a pardon, or the presentation a certificate of innocence. Gov't
Mot. at 6. There is no such assertion within the Complaint. Gov't Mot. at 6.

        The Govemment argues that, in the altemative, the court should dismiss the Complaint
under RCFC 12(bX6), because the "[C]omplaint does not contain factual allegations that 'raise a
right to relief above the speculative level."' Gov't Mot. at 6 (quoting Twombly,550 U.S. at 555).
Specifically, the Complaint:

       does not identify the crime of which [Plaintiffl was allegedly convicted in
       Georgia, nor does it describe any of the facts sunounding said conviction . . . .
       His claims that the Georgia courts have repeatedly retaliated against him similarly
       lack any supporting factual allegations . [Plaintiffl does not describe any
       action on the part of lthe Departrnent of Justice, Civil Rights Division] or how
       any action or inaction relates to any claim against the United States. The
       Complaint similarly fails to identiff how the actions of the Office of the Inspector
       General . . . constitute grounds for a claim in this Court.

Gov't Mot. at   6.

       In response to Plaintiff s October 14,2014 Motion, the Govemment also contends that
such an appointment would be futile since the court does not have jurisdiction to adjudicate the
claims alleged in the September 29,2014 Complaint. Gov't Resp. at 1. In the altemative, the
Govemment argues there are no "exceptional circumstances" justifring the grant of legal
assistance. Gov't Resp. at 2 (citing Washington v. United States,93 Fed. Cl. 706, 708 (2010)
(explaining the circumstances warranting appointment of counsel)).

                2.      The Court's Resolution.

        The court is cognizant of its obligation liberally to construe p,"o se plaintiffs' pleadings.
See Estelle v. Gamble,429 U.S. 97,106 (1976) (holding that the "pro se document is to be
liberally construed"). Bul, pro se plaintiffs must still "comply with the applicable rules of
procedural and substantive law." Walsh v. United States, 3 Cl. Ct. 539,541 (1983). The court
cannot simply excuse the failures contained within the Complaint. See Henke, 60 F .3d at 799,

        The September 29,2014 Complaint and October 14,2014 Motion fail to demonstrate
how Plaintiff s claims implicate the United States. Under the Tucker Act, the United States
Court of Federal Claims has jurisdiction to adjudicate "any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an executive
departrnent, 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. $ 1 9l(a)(l).

       To the extent that the Complaint is directed against the State of Georgia, the Superior
Court of Chatham County, Georgia, the Supreme Court of Georgia, or private individuals and
members of the state judiciary, no claim, however, is alleged against the United States.
Therefore, the court does not have subject matter jurisdiction. See 28 U.S.C. $ 1491(aXl);
United States v. Sherwood,312 U.S. 584,588 (1941) (stating that a suit "could not have been
maintained in the Court of Claims because that court is without iurisdiction of anv suit broueht
against private parties").

       To the extent that the September 29, 2014 Complaint alleges claims against the
Departrnent of Justice, Civil Rights Division, and the Office of the Inspector General, both of
which may be considered as the United States, the court does not have jurisdiction over a claim
for unjust conviction and incarceration. The Complaint does not concem the limited
circumstances of 28 U.S.C $ 1495 that govems claims for damages by persons unjustly
convicted and imprisoned of an offense against the United States, because Plaintiff does not
allege that he was unjustly convicted ofan offense against the United States. Moreover, there is
no evidence that the conviction and incarceration were unjust. The Complaint does not assert an
ultimate finding of innocence, a pardon, a certificate of innocence to establish unjust conviction
under 28 U.S.C $ 2513. See Vicin v. United States, 468 F.2d 930,933 (Ct. Cl. 1972) (holding
that "[t]he unjust conviction statute has always been strictly construed").

        Even if the court had subject matter jurisdiction, the September 29,2014 Complaint fails
to state a claim upon which relief can be granted under RCFC 12(bX6). The United States
Supreme Court has held that "[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Even read in
the light most favorable to Plaintiff, the Complaint does not allege facts to state a plausible claim
that are sufficient to satis$ the pleading standard. See A & D Auto Sales, Inc. v. United States,
748 F.3d 1142, 1157-58 (Fed. Cir. 2014)        (A     claim is factually plausible 'when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable.' If the plaintiff fails to include such allegations in his complaint, it is deficient.") (quoting
Iqbal, 556 U.S. at 678). Nor has Plaintiff included any information concerning: the nature of the
criminal charges; the facts sunounding the charges of which he was convicted; the prosecuting
agency; the acts or omissions of the Unites States; the length of incarceration; the success or
otherwise of any appeal; or the basis upon which Plaintiff calculates the damages to amount to
$275,000. As such, the Complaint fails to state a claim upon which relief can be granted.

IV.    CONCLUSION.

       For these reasons, the Govemment's October 27, 2014 Motion to Dismiss is granted. ,See
RCFC l2(bXl), 12(bX6). Plaintiff s October 14,2014 Motion is denied, because the court does
not have jurisdiction to adjudicate Plaintiffs claims. The Clerk is directed to dismiss the
September 29, 2014 Complaint, without prejudice.


       IT IS SO ORDERED.
