                                      No. 17-1853C
                                   (Filed: May 3, 2018)                       MAY - 3 2018
                                 NOT FOR PUBLICATION                          U.S. COURT OF
                                                                             FEDERAL CLAIMS
                                              )
    KIM ANTHONY POLONCZKY,                    )      Pro se Plaintiff; Motion to Dismiss for
                                              )      Lack of Jurisdiction; RCFC l 2(b )( 1);
                  Pro Se Plaintiff,           )      Failure to Establish Jurisdiction;
                                              )      Defendant Other Than the United
    v.                                        )      States; Claims Against State Officials
                                              )      and Agencies; Review of Other
    THE UNITED STATES, 1                      )      Federal Courts; Constitutional Claims;
                                              )      Tort Claims.
       Defendant.                             )
~~~~~~~~~~~~~)

                OPINION DISMISSING PLAINTIFF'S COMPLAINT
                        FOR LACK OF JURISDICTION

        Kim Anthony Polonczky ("plaintiff' or "Mr. Polonczky") filed his pro se
complaint against the United States ("the government") on November 27, 2017. On
January 26, 2018, in lieu of an answer, the government filed a motion to dismiss for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of
Federal Claims ("RCFC") or, in the alternative, for failure to state a claim upon which
relief can be granted pursuant to RCFC 12(b)(6). See Def. 's Mot. to Dismiss for Lack of
Jurisdiction, or, Alternatively, for Failure to State a Claim ("Def.'s Mot.") at 1, Docket
No. 9. The plaintiff filed a response on February 12, 2018, and the government filled a
reply on March 1, 2018. Additionally, the plaintiff filed a motion to admit additional
evidence on March 12, 2018, filed a motion to take judicial notice on March 23, 2018,
and filed a motion to supplement evidence and take judicial notice on March 26, 2018.
The government filed a response to the plaintiffs motion to admit additional evidence on
March 26, 2018. On March 28, 2018, the court granted the plaintiffs motions to admit

1
  The plaintiffs complaint was filed against the United States government, the Social Security
Administration, and the United States Judicial System. Because under Rule lO(a) of the Rules of
the United States Court of Federal Claims, any claims filed in the Court of Federal Claims must
be filed against the United States as the sole defendant, the United States was substituted as the
defendant in the caption. See, e.g., Lea v. United States, 126 Fed. Cl. 203, 203 n.l,
reconsideration denied, No. 15-292C, 2016 WL 2854257 (Fed. Cl. May 10, 2016), ajj"d, 662 F.
App'x 925 (Fed. Cir. Oct. 6, 2016); Gharb v. United States, No. 12-91lC,2013 WL 4828589, at
*2 (Fed. Cl. Sept. 9, 2013); Grant v. United States, No. 13-473C, 2014 WL 128634, at *l n.l
(Fed. Cl. Jan. 7, 2014).


                                                                      7017   14so- DODO-    1346 4803
additional evidence, to take judicial notice, and to supplement evidence. See Docket No.
16. For the reasons discussed below, the government's motion to dismiss for lack of
subject matter jurisdiction is GRANTED.

       I.     BACKGROUND

       The following facts are taken from the plaintiff's complaint. Mr. Polonczyk's
complaint sets forth his claims relating to the conduct of the United States government,
the United States Social Security Administration, and the United States Judicial System,
as well as the actions of private parties and various state and federal entities that he has
not named as defendants but discusses in his complaint. Mr. Polonczyk challenges the
removal of a lawsuit he filed in Florida state court against, among others, Microsoft from
the Circuit Court in and for Escambia County to the United States District Court for the
Northern District of Florida and the subsequent dismissal of his lawsuit. See Comp!. at
4-19. See also Polonczykv. Gates, No. 3:16-CV-599-RV-GRJ, 2017 WL 1164726, at *1
(N.D. Fla. Mar. 16, 2017), report and recommendation adopted, No. 3:16-CV-599-RV-
GRJ, 2017 WL 1159105 (N.D. Fla. Mar. 28, 2017), appeal dismissed, No. 17-11415-B,
2017 WL 4570540 (11th Cir. May 1, 2017). The plaintiff had asserted that Microsoft
(and the other defendants) infected his computer with a virus that destroyed his hard drive
and erased his intellectual property, committed home invasion and computer invasion,
harassed him, stole his intellectual property, and violated the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), among other things. See Comp!. at 15-19. The
plaintiff contends that the federal government provides special privileges and protections
to Microsoft. See Comp!. at 6-7, 11. Mr. Polonczyk alleges that the federal court
permitted, protected, and promoted the conspiracy between Microsoft and the other
defendants by allowing their continued violation of state laws. Comp!. at 6. He
additionally asserts that Judge Roger Vinson stole his identity by "refilling a removed
[action] (signed by [the] same judge, ordered by [the] same judge and sealed by [the]
same judge)" in federal district court in the plaintiff's name without the plaintiff's
permission and asserts that Judge Vinson furthered the conspiracy by dismissing the
plaintiffs lawsuit in order "to protect the Defendant Conspiracy from a state suit through
double jeopardy in a [s]tate [a]ction[.]" Comp!. at 6.

       The plaintiff alleges that the state and federal courts "violated" his "Due Process
Rights 2by not providing the paperwork ... or following the Rules of Procedure in
transferring the [a]ction from the State Court back to the Federal Court by allowing a
'notice' [of removal] ... instead of a pleading ... as required to transfer the action" and
denied him "equal and fair access to the courts for redress." Comp!. at 7. The plaintiff
further contends that "[t]heir refusal to provide equal access to the court system as
guaranteed by the U.S. Constitution is intentional tort discrimination against the

2
 Although the complaint at one point refers to "the [p]laintiffs 1st Amendment Due Process
Rights[,]" the First Amendment of the United States Constitution does not contain any due
process rights. See Comp!. at 7. Due process rights are contained within the Fifth and
Fourteenth Amendments to the Constitution.

                                              2
[p ]laintiff." Comp!. at 8. He additionally asserts that the court system, the federal court
judges, lawyers, and the federal government discriminated against him as a disabled, pro
se litigant and thus violated the Americans with Disabilities Act ("ADA") and the
Constitution. See Comp!. at 7-9, 17, 24. See generally Comp!. at 15, 22-24, 37.

        Mr. Polonczyk also maintains that the U.S. government has required him "to enter
into a contract, Social Security," and "[ o]n many occasions[,] the Social Security
Administration and the United States has [sic] intentionally, oppressively and deliberately
breached this contract with the [p]laintiffand even attempted to invent a [f]elony charge
against the [p]laintiffso [h]e can be separated from his entitlement permanently."
Comp!. at 4, 33. See also id. at 30-38. He asserts that the federal government and the
Social Security Administration have "removed [his] contractual fiducial [sic] rights and
entitlements to the automatic cost of living adjustment [(COLA)] and his rights to
Medicare Health Insurance while still deducting (embezzling) the Medicare payments
from his entitlements." Comp!. at 33. Additionally, the plaintiff alleges that the

       Administrative Law Judge for Social Security, exactly as the United States
       District Court Judge and the Illinois District Court Judge did, violated the
       [p ]laintiffs rights and invented his own statute and made up an onset date
       [for the plaintiffs debilitating brain hemorrhage] without having any
       [statutory] authority, jurisdiction, evidence, or reason except to
       intentionally, hinder and discriminate against the [d]isabled Pro-SE
       [p ]laintiff and protect the party who was violating enacted [statutes]. (ALJ
       [made] up a new onset date, Federal Judge filed a lawsuit in the [p]laintiffs
       name, and the Ill. District Court [made] up a [statute] for un-emancipation.)

Comp!. at 37. See also id. at 27-29.

       In addition, Mr. Polonczyk's complaint touches upon certain criminal matters
involving criminal charges against him which he alleges were improperly brought. See
Comp!. at 13-15, 20-21, 24-26, 33.

        Mr. Polonczyk seeks a total of $8,172,618.46 in damages from the defendants for
his claims, $360,618.46 in damages for the Social Security disability payments he alleges
were improperly removed, $12,000.00 in damages for his unpaid medical costs, and
$7,800,000.00 in damages from his suit against Microsoft, and requests the court either
review de novo the lawsuit he filed against Microsoft (and the other defendants) or return
that lawsuit to a Florida state court other than Escambia County (or, alternatively, the
International Court of Justice). Total Remedies at 1, Docket No. 1-4; Comp!. at 29, 38.
He also requests the court set aside the "average amount owed to all Social Security
recipients for the 10 year period on non-COLA increases" as calculated by the plaintiff,
which comes to $1.39944158 x 10 19 , and give "notification ... to all Social Security
beneficiaries that they must apply to receive their past due COLA increases and allow the



                                              3
[p]laintiffan oversight [role] in the distribution of these funds." Comp!. at 39; Total
Remedies at 1.

        The government filed a motion to dismiss this action pursuant to RCFC 12(b)(l)
for lack of subject matter jurisdiction and, alternatively, pursuant to RCFC 12(b)(6) for
failure to state a claim upon which relief can be granted. See Def. 's Mot. at 1. The
government argues that the plaintiff failed to allege a claim that falls within this court's
jurisdiction because the United States Court of Federal Claims lacks jurisdiction over:(!)
the decisions of district courts; (2) parties other than the United States; (3) tort claims; (4)
claims involving criminal matters; (5) violations of the due process and equal protection
clauses of the Fifth and Fourteenth Amendments; (6) violations of the ADA; (7) claims
related to Social Security benefits; and (8) "allegations of breach of contract based on
Social Security numbers." See Def.'s Mot. at 4-8. Alternatively, the government argues
that this court should dismiss this action for failure to state a claim pursuant to RCFC
 12(b)(6) because the plaintiffs complaint fails to raise any plausible claims against the
United States. Def.'s Mot. at l, 3-4, 7-8.

       II.     DISCUSSION

        For the reasons discussed below, the court agrees with the government that it lacks
subject matter jurisdiction to adjudicate all of Mr. Polonczyk's claims. Jurisdiction
represents a threshold matter that a court must resolve before it may proceed to the merits
of a case. See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999); Frazier
v. United States, 683 F. App'x 938, 939 (Fed. Cir. 2017). The court accepts as true the
uncontested allegations asserted in a plaintiffs complaint when evaluating a motion to
dismiss for lack of subject matter jurisdiction. Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). Although the court holds a complaint filed by a prose plaintiff to "less stringent
standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519,
520 ( 1972), this leniency does not excuse a pro se plaintiff "from his or her burden of
proving, by a preponderance of the evidence, that the court possesses [subject matter]
jurisdiction." Gravatt v. United States, 100 Fed. Cl. 279, 286 (2011). See also Colbert v.
United States, 617 F. App'x 981, 983 (Fed. Cir. 2015) ("No plaintiff, prose or otherwise,
may be excused from the burden of meeting the court's jurisdictional requirements.").

        The United States Court of Federal Claims only has jurisdiction to hear claims
against the United States. See United States v. Sherwood, 312 U.S. 584, 588 (1941)
(explaining that the Court of Federal Claims' 'jurisdiction is confined to the rendition of
money judgments in suits brought for that relief against the United States ... and if the
relief sought is against others than the United States the suit as to them must be ignored
as beyond the jurisdiction of the court." (citations omitted)). Therefore, to the extent that
the plaintiff is claiming damages based on the actions of private parties, such as
Microsoft, the plaintiffs complaint must be dismissed for Jack of subject matter
jurisdiction. See, e.g., Comp!. at 15-19. Additionally, the Federal Circuit has explained
that "the Court of Federal Claims does not have jurisdiction to hear claims against states,


                                               4
localities, state and local government entities, or state and local government officials and
employees." Smith v. United States, 99 Fed. Cl. 581, 583 (2011) (citing Moore v. Pub.
Defender's Office, 76 Fed. Cl. 617, 620 (2007)). Therefore, the plaintiffs claims against
the state courts and state government officials must be dismissed for lack of subject
matter jurisdiction. See, e.g., Comp!. at 7-8. The Federal Circuit has also held that "the
Court of Federal Claims does not have jurisdiction to review the decisions of district
courts or the clerks of district courts relating to proceedings before those courts." Joshua
v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). Therefore, this court must also
dismiss Mr. Polonczyk's allegations against the United States District Court for the
Northern District of Florida and against Judge Rodger Vinson who presided over his
lawsuit against Microsoft.

        The plaintiffs remaining claims against the United States must also be dismissed
for lack of subject matter jurisdiction. This court lacks subject matter jurisdiction over
claims based on violations of due process or equal protection rights because those
constitutional rights are not money-mandating. "Although this court may exercise
jurisdiction over claims 'founded ... upon the Constitution,' the scope of this court's
jurisdiction over constitutional claims is limited to claims arising under provisions of the
Constitution that mandate the payment of money." Miller v. United States, 67 Fed. Cl.
 195, 199 (2005) (quoting 28 U.S.C. § 149l(a)(l)). See also Ealy v. United States, 120
Fed. Cl. 801, 805 (2015). It is well established that the Court of Federal Claims does not
possess jurisdiction to adjudicate claims under the Due Process clauses of the Fifth and
Fourteenth Amendments because these constitutional provisions are not money-
mandating. See Harvey v. United States, 683 F. App'x 942, 943 (Fed. Cir. 2017) ("The
[Court of Federal Claims'] limited jurisdiction does not extend to claims brought under ..
. the Due Process clauses of the Fifth and Fourteenth Amendments, because they do not
contain money-mandating provisions."); Lewis v. United States, 476 F. App'x 240, 244
(Fed. Cir. 2012) ("Neither the due process clauses nor the equal protection clauses of the
Fifth and Fourteenth Amendments to the Constitution 'obligate the government to pay
money damages."' (quoting Collins v. United States, 67 F.3d 284, 288 (Fed. Cir. 1995);
Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988))). Therefore, the court
must dismiss Mr. Polonczyk' s claims based on violations of his due process rights under
the Fifth and Fourteenth Amendments, as well as those based on the denial of equal
access to the courts. See Comp!. at 7-8, 13, 15. Nor does the Federal Court of Claims
have jurisdiction over the plaintiffs claims under the First Amendment because "the First
Amendment, 'standing alone, cannot be ... interpreted to command the payment of
money."' Hood v. United States, 659 F. App'x 655, 662 (Fed. Cir. 2016) (quoting United
States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (en bane)).

        Additionally, the plaintiffs claims sounding in tort, including his allegations of
intentional tort discrimination, must also be dismissed for lack of subject matter
jurisdiction. The Tucker Act explicitly states that the "United States Court of Federal
Claims shall have jurisdiction ... in cases not sounding in tort." 28 U.S.C. § 149l(a)(l)
(emphasis added). See Spitters v. United States, 710 F. App'x 896, 897 (Fed. Cir. 2018)


                                             5
                            --------------------------




-,


     ("Because '[t]he Court of Federal Claims is a court of limited jurisdiction,' it 'lacks
     jurisdiction over tort actions against the United States."' (quoting Brown v. United States,
      105 F.3d 621, 623 (Fed. Cir. 1997) (internal citations omitted))).

             Further, this court must dismiss the plaintiffs claims relating to violations of the
     Americans with Disabilities Act for lack of subject matter jurisdiction because that statute
     "is not a money-mandating source of law." Allen v. United States, 546 F. App'x 949, 951
     (Fed. Cir. 2013). Similarly, this court lacks jurisdiction over Mr. Polonczyk's allegations
     against the Social Security Administration and the federal government related to his
     Social Security benefits. See Comp!. at 30-38. Under the Social Security Act, the
     United States district courts possess exclusive jurisdiction over claims against the Social
     Security Administration. See Brown v. United States, 607 Fed. App'x 983, 985 (Fed. Cir.
     2015) (42 U.S.C. § 405 "specifies the exclusive mechanism for determining the right to
     Social Security benefits, and provides exclusive jurisdiction to the district courts over
     appeals from Social Security determinations denying benefits."); Arunga v. United States,
     465 F. App'x 966, 967-68 (Fed. Cir. 2012) (holding that "the statute makes clear that the
     Court of Federal Claims lacks jurisdiction [over challenges relating to Social Security
     benefits] because claims for social security benefits must be filed in a federal district
     court."). Finally, the plaintiffs claims arising out of his criminal convictions must also
     be dismissed for lack of subject matter jurisdiction because "[t]he Court of Federal
     Claims does not have the power to review and overturn convictions or to review in detail
     the facts surrounding a conviction or imprisonment." Zakiya v. United States, 79 Fed. Cl.
     231, 234-35 (2007), afj"d, 277 F. App'x 985 (Fed. Cir. 2008).

            III.    CONCLUSION

             For the reasons stated above, this court does not have subject matter jurisdiction
     over any of the plaintiffs claims and thus, Mr. Polonczyk's complaint is DISMISSED
     for lack of subject matter jurisdiction under RCFC 12(b)(l). 3 The clerk is directed to
     enter judgment accordingly. No costs.
                                                                        /        /)
                                                                              [/ .· /j~foLf
            IT IS SO ORDERED.


                                                                   N          B. FIRESTONE
                                                                    Senior    dge

     3
       Under 28 U.S.C. § 1631, this court has the authority to transfer a case over which it lacks
     jurisdiction to "any other such court in which the action or appeal could have been brought at the
     time it was filed or notice" ifthe transfer "is in the interests of justice[.]" 28 U.S.C. § 1631.
     However, the Court of Federal Claims "is unable to transfer any case to the state court system, as
     no state court falls within the definition in [28 U.S.C] § 610." Mendez-Cardenas v. United
     States, 88 Fed. Cl. 162, 168 (2009) (citing 28 U.S.C. § 610). See also Staten v. United States,
     No. 15-308C, 2015 WL 4441672, at *4 (Fed. Cl. July 17, 2015). Similarly, this court also
     cannot transfer the plaintiff's claims to the International Court of Justice. See 28 U.S.C. § 610.

                                                     6
