                                   ORlGlillAt
         lflr- tltt   @nitr! $itutts         @ourt of     fa[trul        @lufmd

                                         No. 14-510C
                                   (Filed: January 13, 2015)              FILED
                                        UNREPORTED                       JAN     | 3 20t5
                                                                     U.S. COURT OF
                                                                    FEDERAL CLAIMS
MICHAEL LYNN CASH,

                      Plaintiff,
                                                   Pro se plaintiff; Third-party
                                                   beneficiary; 28 U.S.C. $ l49l

THE TINITED STATES,

                       Defendant.




                      OPINION GRANTING MOTIONTO DISMISS

Firestone, htdge.

      Plaintiff Michael Lynn Cash ("Mr. Cash"), appearing      prS-Se,   filed   a   complaint and

motion for leave to proceed in forma pauperis on June 16,2014. On August              lI,2014'

Mr. Cash amended his complaint. In his amended complaint, Mr. Cash claims to be              a


third-party beneficiary to an agreement between the United States Marshals Service

("Marshals Service") and the Oklahoma County Criminal Justice Authority ("County

Authority"). Under the agreement, the County Authority provides       space for the detention


of individuals charged with federal claims. The agreement sets minimum standards for

the conditions of confinement, including (1) trained   jail staffto supervise prisoners and

(2) full coverage of security posts and surveillance of inmates. Def.'s Mot., App. 6-7. To
ensure that these standards are met, the agreement provides for inspections ofthe County

Authority facility by the Marshals Service and authorizes the Marshals Service to share

the results of those inspections with the County Authority in order to improve facility

operations, the conditions of confinement, and levels of service.   Id. Mr.   Cash claims that

the United States breached the agreement by failing to "inspect the [County] facility" or

"investigate various inmate assaults" at the County facility. According to Mr. Cash, these

breaches resulted in Mr, Cash being assaulted by several violent inmates using

unsupervised tools while he was incarcerated at the County   facility. Mr. Cash further

alleges that the County facility was 300% over capacity. Mr. Cash seeks

"penalties/damages" for the alleged breach of contract.

       On September 2,2014, the United States ("the govemment") moved to dismiss the

amended complaint. In its motion, the government argues pursuant to Rule 12(b)(l)        of

the Rules of the United States Court of Federal Claims ("RCFC") that the complaint filed

by Mr. Cash must be dismissed because this court lacks subject-matter jurisdiction over

the claims made therein. In the alternative, the govemment argues pursuant to RCFC

12(bX6) that the complaint must be dismissed because it fails to state a claim upon which

relief may be granted. The government argues that Mr. Cash's claims relating to his

assault sound in tort and must be dismissed because, under 28 U.S.C. $ 1491(a)(1), this

court lacks jurisdiction over claims sounding in tort. The govemment further argues that

this court lacks jurisdiction over Mr. Cash's third-party beneficiary contract claim

because Mr. Cash has not alleged any facts to show that he was an intended, rather than

incidental, beneficiary of the Marshals Service agreement with the County Authority. In
 the alternative, the govemment argues that the complaint fails to state a claim for breach

 of contract. According to the government, the agreement did not provide rights for

 inmates to sue in the event that the Marshals Service failed to inspect the Countv

 facilities.

          In response to the govemment's motion, Mr. Cash argues that he is not seeking

 damages for a tort, but instead for a breach of contract. Further, plaintiff argues that he is

a   third-party beneficiary of the agreement at issue because the "care and safekeeping"    of
 federal prisoners was among the stated purposes of the agreement. Mr. cash contends

that he has also stated a claim because the United States was required to assure

compliance with the minimum standards set in the contract. In the altemative, he argues

that the United States is authorized by the contract to hold the local government

accountable for any debt incurred pursuant to the contract. plaintiff argues that this

clause allows him to compel the federal govemment to collect damages for the breach

that he alleees.

         DISCUSSION

         a.    Standards of Review

         without   a   waiver of sovereign immunity, no suit may be brought in the united

States   court of Federal claims. united states v. Mitchell,445 u.s. 535, 53g (19g0);

unitedstatesv.Testan,424u.s.392,39g(1976). SuchawaiverismadeintheTucker

Act, which grants this court jurisdiction over "any claim against the united states

founded either upon the constitution, or any Act ofcongress or any regulation ofan

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. $

lagl(aXl).     One requirement of such jurisdiction pursuant to the Tucker Act is privity       of

contract between the plaintiff and the United States. Cieneea Gardens v. United States,

l94F.3d \231,1239 (Fed. Cir. 1998). Whetherthecourtpossesses jurisdictiontodecide

the merits of a case is a threshold matter, see PODS. Inc. v. Porta Stor. Inc., 484 F.3d

1359, 1364 (Fed. Cir. 2007) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

94-95 (1998), as a case cannot proceed if a cou( lacks jurisdiction to hear it, see

Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) ("[W]hen a federal court concludes

that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its

entirety." (citation omitted)). See generally John R. Sand & Gravel v. United States, 552

U.S. 130 (2008), affg 4s7 F.3d 1345 (Fed. Cir. 2006).

          The plaintiff bears the burden of establishing subject-matterjurisdiction, Alder

Tenace. Inc. v. United States, 161 F.3d 1372, 137'7 (Fed. Cir. 1998) (citing McNutt v.

Gen. Motors, 298 U.S. 178, 189 (1936), and must do so by a preponderance of the

evidence, Reynolds v.    Arm!& Air Force     Exch. Serv. , 846   F   .2d 7 46, 748 (Fed. Cir.

1988). In ruling on such a motion, the court will "consider the facts alleged in the

complaint to be true and correct." Henke v. United States, 60 F.3d j95,797 (Fed. Cir.

1   995); Reynolds, 846 F.2d at 7 47 . In addition, the court may consider materials outside

of the pleadings to determine whether it has subject-matter jurisdiction over a claim.

Aviation Software. Inc. v. United States, 101 Fed. Cl. 656,661 (2011) (citing Rocovich

v. United States,933F.2d99l,993 (Fed. Cir.         l99l)).



                                               A
           In addition, when considering the dismissal of      a Eq_qE   complaint, the court holds

 "the pleading'to less stringent standards than formal pleadings drafted by lawyers."'

 Johnson v. United States,        4l I F. App'x 303, 305 (Fed. Cir. 2010) (quoting Haines v.

 Kemer, 404 U.S. 519, 520 (\972)). Despite this permissive standard,              a prcSE   plaintiff

 must still satis$' the court's jurisdictional requirements. Bemard v. United States, 59

 Fed.    cl.   497   , 499 (200a) ("This latitude, however, does not relieve a pro   se   plaintiff from

 meeting jurisdictional requirements."), aff d 98 F. App'x 860 (Fed. Cir.2004).

           b. This Court Lacks Jurisdiction Over plaintifps Claim
          Because the plaintiff acknowledges that his case may be heard only if he is a third

 party beneficiary of the agreement between the Marshals Service and the county, the

 court   will focus on that question.r After considering      the arguments in the parties' brief-s,

the court finds that it must agree with the govemment that plaintiff is not an intended

third-party beneficiary and, therefore, that there is no waiver of sovereign immunity
                                                                                      and

this court does not have subject matter jurisdiction over his claim. It is well-settled that

"before a stranger can avail himself of the exceptional privilege of suing for a breach            of
an agreement to which he is not a party, he must, at least, show that it was
                                                                             intended for


 ' The govemment is correct that, to the extent plaintifPs claim sounds in tort, it cannot be heard
in this court. 28 u.s.c. $ lagl(a)(l). Moreovir, to the extent that Mr.
                                                                              cash argue, tt ut t"
sue the united states to compel the_govemment to seek payment from the                            "-
                                                                                 courity Authority fbr a
t^oJtr
       ll-tis
              cout lacks equitable jurisdiction to sue on his behalf. united states v. iohono
o'odham Nation,            u.s.         131 s.ct. 1723, r72g (2011) 1,,unlit" tn" airt.i"t
                        -
however, the [court of Federal.claims] has no general power to provide equitable "ourtr,
                                 -,                                                       reliefagainst
the Govemrnent or its officers." (citations omitted)); Visconi v. United staies, 455
                                                                                          F. App,x 9g6,
988 (Fed. Cir.2012) ("The Tucker Act does not provide irxlep"ndent j*isdi"tion
                                                                                         over ciaims for
equitable relief." (citing Brown v. United States, 105 F.3d 621, 624 (ied. cir.
                                                                                     1997), rch'e
denied (1997))).
his direct benefit." German Alliance,226U.S.220,230 (1912); see also Sullivan v.

United States, 625F.3d 1378, 1380-81 (Fed. Cir.2010) (quoting Montanav. United

States, 124 F.3d 1269, 1273 (Fed. Cir. 1997)). In other words, the plaintiff must

demonstrate that the contract at issue was specifically intended to provide him with

protection from any harm while he was incarcerated in the County facility.

       A review of the agreement between the Marshals Service and the County

Authority demonstrates that it was entered into to provide housing to federal prisoners

and did not give prisoners any special rights. In particular, the agreement states that its

purpose is to provide for the "detention ofpersons charged with or convicted      of
violations of federal law or held as material witnesses (federal prisoners) at the [county

Authority] facility." Def.'s Mot., App. 2. In exchange for payment and subject to certain

restrictions, the county Authority agreed to "accept and provide for the secure custody,

care and safekeeping offederal [sic] prisoners in accordance with federal, state, and local

law, standards, policies, procedures, or coufi orders applicable to the operations of the

facility." Id. The next   sentence of the agreement states that "[t]he [Marshals Service]

considers all federal prisoners medimn/maximum Isic] securitytype prisoners that are

housed within the confines of the facility, at a level appropriate for prisoners considered a

risk of flight, a danger to the community, or wanted by other jurisdictions.',   Id.   Thus,

while the agreement does provide certain minimum standards for the confinement of the

prisoners-which do not include protection of prisoners from other prisoners-it is clear

that the principal intent of the agreement is to house the prisoners in a way that keeps the

public safe and that the minimum standards are designed for this purpose. Nothing in the
agreement suggests that it was intended to give prisoners the right to enforce the

agreement or sue the United States in the event the United States Marshals Service failed

to inspect the County facility or protect individual inmates from other inmates.2 The

court therefore finds that plaintiff is not an intended third-party beneficiary of the

agreement but rather, at best, an incidental beneficiary. As a result, a waiver of sovereign

immunity, which is necessary for this court to have jurisdiction, does not exist.

II,    CONCLUSION

       Because the   plaintiff is not a third-party beneficiary to the agreement between the

Marshals Service and the County, sovereign immunity is not waived and the court lacks

jurisdiction to hear the case. Accordingly, the government's motion to dismiss for lack of

subject matter jurisdiction is GRANTED.3 The Clerk is directed to enter judgment

accordingly. The parties shall bear their own costs.

       IT IS SO ORDERED.




                                                               Judge




2
  Indeed, where the parties intended to do so, the agreement does specifically discuss third-party
liability. First, when transporting prisoners for medical treatment or to a federal courthouse, the
County Authority "agrees to hold harmless and indemnify the [Marshals Service] from any
liability, including third-party liability or workers' compensation, arising from the conduct of
localjail employees . . . ." Def.'s Mot., App 7-8. In both cases, it is clear that the third-pa(ies
considered are members of the public. Even so, the agreement does not grant any additional
rights to those third-parties, but rather confirms the liable party.
3
  Plaintiff additionally moved for leave to proceed in forma pauperis, Docket No. 6. That motion
is GRANTED for purposes of filing the complaint.
