                                                                                                           FILED
                                                                                                         ocT 3 I   20t6

                     CIR[ffifr$,lAt         U.S. COURT OF
                                           FEDERAL CLAIMS

     lln tbe @nfte! $tutes [.ourt of felerst @lsims
                                                                No. 16-0599
                                                          Filed: October 31,2016


,6**:f **:t** ***:f ** * * * * * ,. * * * * * * * * * * *' * * * * * *+*
                                                                                  28 U.S.C. $ 1491   (TuckerAct
                                                                                         Jurisdiction);
ANDRE D. LEFFEBRE,                                                                28 U.S.C. $ 19i5(g) (Prison Litigation
                                                                                         Reform Act of 1996);
            Plaintiff, pro       se,
                                                                                  28 U.S.C $ 2401 (Federal Tort Claim
                                                                                         Act);
                                                                                  28 C.F.R. S 543.32 (Federal Bureau of
                                                                                         Prisons Administrative Tort
THE UNITED STATES,                                                                       Claims);
                                                                                  Rules of the United States Court of
            Defendant.                                                                   Federal Claims C'RCFC')
                                                                                          Rules 1 1(b) (Baning Frivolous
                                                                                         Filings), 12(bxl) (Subject Matter
**   ** * ** * ** * * * * * * * '* r. * * * * * ** * ** * '* *:1. ** * * * * {.          Jurisdiction).


Andre D. Leffebre, Atlanta, Georgia, pro se.

Michael A. Rodriguez, United States Department of Justice, Civil Division, Washington, D.C.,
Counsel for the Govemment.

                             MEMORANDUM OPINION AND ORDER GRANTING
                               THE GOVERNMENT'S MOTION TO DISMISS

BRADEN, Jadge.

I.          RELEVANT F'ACTUAL BACKGROUND.'
        Mr. Andre Leffebre is an inmate at the United States Penitentiary in Atlanta. Compl. at 7.
On May 18, 2012, federal prison employees failed to keep inmates separated; Mr. Leffebre
engaged in a fight with another inmate. Compl. at 5. After the frght, Mr. Leffebre began suffering
dizzy spells and migraines. Compl. at 2-3, 5. Federal prison employees did not respond to Mr.
Leffebre's sick call requests and failed to document his medical condition. Compl. at 3-4.
Because Mr. Leffebre believes he can no longer trust the federal prison health services, he requests
the ability to purchase private health care. Compl. at 6.




             ' The relevant facts were derived from the May 19,2016 Complaint ("Compl.").


                                                                                           ?Bl,q 1,a00 0000 1093 th?b
II.    PROCEDURALHISTORY.
       On May 18,2012, a Federal Bureau of Prisons Discipline Hearing Officer     ("DHO") issued
an incident report determining that Mr. Leffebre committed "Assaulting Any Person," and
"Possession of a Dangerous Weapon." Compl. Ex. 3.

      On October 28,2013, Mr. Leffebre filed an administrative appeal of the DHO's decision.
Compl. Ex. 2 at 9. Therein, Mr. Leffebre requested "monetary damages, reinstatement into the
Step-Down Program or transfer to USP Pollock, restoration of [his] good conduct time, and
expungement ofthe incident report." Compl. Ex. 3.

       On May 8, 2014, the National Inmate Appeals Administrator issued a Decision, remanding
the May 18,2012 incident report to the DHO. Compl. Ex. 3. Mr. Leffebre was also informed by
thc Administmtor that, if he sought monetary compensation based on the negligence of staff, he
had the option ofexhausting the relevant administrative procedures and then fi1ing a claim under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C. $ 2401. Compl. Ex.3. Mr. Leffebre was
advised, however, that no monetary damages could be awarded under the administrative remedy
process he used to appeal the May 18,2012 incident report.2 Compl. Ex. 3.

       On May 19,2016, Mr. Leffebre ('Plaintiff) frled a pro se Complaint in the United States
Court of Federal Claims alleging personal injury and negligence by Federal Bureau of Prisons
employees and seeking relief in the amount of $250,000 in damages. Compl.at1,7. Onthe same
day, Plaintiffalso filed a Motion For Leave To Proceed In Forma Pauperis.

      On July 18, 2016, the Govemment filed a Motion To Dismiss or, in the alternative, a
Motion To Stay ("Gov't Mot.").

        On August 2,2016, Plaintiff filed a Motion To Transfer this case to the United States
District Court for the District of Columbia ("P1. Reply").

       On August 8, 2016, the Govemment filed a Response To PlaintifPs Motion To Transfer
("Gov't Resp.").
       On August 23, 2016, Plaintiff filed a Reply regarding his Motion To Transfer ("P1. Sw-
Reply").




       '   Appeals to the National Inmate Appeals Administrator are made pursuant to the Bureau
of Prisons' Administrative Remedy Program. ,See 28 C.F.R. $ 542.15 ("An inmate who is not
satisfied . . .may submit an Appeal . . . . [T]o the National Inmates Appeals Administrator[.]").
The purpose of the Administrative Remedy Program "is to allow an inmate to seek formal review
of any issue relating to an aspect of his confinement." 28 C.F.R. $ 542.10. A separate
administrative process govems claims for money damages made by prisoners pursuant to the
Federal Tort Claims Act. See 28 C.F.R. $ 543.30 ("Pursuant to the Federal Tort Claims Act, a
claim for money damages . . . must be frled against the United States by the injured party with the
appropriate Federal agency for administrative action. . . . The provisions in this subpart describe
the procedures to follow when filing an administrative tort claim with the Bureau ofPrisons.").
UI.    JURISDICTION.
       The  jurisdiction of the United States Court of Federal Claims is established by the Tucker
Act. See 28 U.S.C. $ 1491 (2006). The Tucker Act authorizes the court "to render j udgment upon
any claim against the United States founded either upon the Constitution, or any Act ofCongress
or any regulation of an executive department, or upon any express or impiied contract with the
United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C.
$ 14e1(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 Court of Federal Ciaims] whenever the substantive right
 exists;' United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify
 and plead an independent contractual relationship, constitutional provision, federal statute, or
 executive agency regulation that provides a substantive right to money damages. See Fisher v.
 United States, 402 F.3d 1167 , 1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act itself does not
 create a substantive cause ofaction; in order to come within the jurisdictional reach and the waiver
 of the Tucker Act, a plaintiff must identifu a separate source of substantive law that creates the
 right to money damages."). The burden of establishing jurisdiction falls upon the plaintiff. See
 FWPBS, Inc. v. Dallas,493 U.S. 215,231 (1990) (holding that the burden is on the plaintiff to
 allege facts sufficient to establish jurisdiction); see a/so RCFC 12(bxl).

IV.     DISCUSSION

        A.      Standard For Decision On Motion To Dismiss Pursuant To RCFC 12@Xf).
        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(bX1) motion[.]" Palmer v.
 United States,168 F.3d 1310, 1313 (Fed. Cir. 1999); see a/so RCFC 12(bX1) ("Every defense to
a claim for relief in any pleading must be asserted in the responsive pleading if one is required.
But a party may assert the following defenses by motion: (1) lack of subject-matter
jurisdiction[.]"). When considering whether to dismiss an action for lack of subject matter
jurisdiction, the court is "obligated to assume all factual allegations ofthe complaint to be true and
to draw all reasonable inferences in plaintiffs favor." Henke v. United States, 60 F.3d 795,797
 (Fed. Cir. 1995).

        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 that pro se
complaints, "however inartfully pleaded," are held to "less shingent standards than formal
pleadings drafted by lawyers"). The court traditionally examines the record "to see if [a pro se]
plaintiff has a cause of action somewhere displayed." Ruderer 1). United Stdtes, 412 F.2d, 1285,
1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiff s
complaint, the court "does not excuse [a complaint's] failures." Henke, 60 F.3d at799.
        C.      The Government's July 18,2016 Motion To Dismiss Or, In The Alternative,
                Motion To Stay The Action Until Plaintiff Pays The Required Filing Fee.

                1.      The Government's Argument.

        The Govemment argues that the May 19, 2016 Complaint should be dismissed for lack of
subject matter jurisdiction under Rule 12(b)(1) ofthe Rules ofthe United States Court ofFederal
Claims ("RCFC"), because the claim alleged by the May 19,2016 Complaint is based in tort.
Gov't Mot. at 3. The Govemment adds that the court should not transfer this case to the United
States District Court for the District of Columbia, because Plaintiffs tort claim is baned by the
statute of limitations. Gov't Resp. at 1.

        In addition, the Government contends that Plaintiff is not entitled to in forma pauperis
status and should be required to pay the filing fee; if he fails to do so, the May 19,2016 Complaint
should be dismissed under the "three strikes" rule ofthe Prison Litigation Reform Act of 1996
C'PLRA'),28 U.S.C. $ 1915(9). Gov't Mot. at 5. The Govemment also cites numerous other
cases dismissing prior claims filed by Plaintiff as frivolous, malicious, or for failure to state a
claim. See, e.g., Lefibbre v. Lapin,No.08-1286 (D.D.C. July 28, 2008) (dismissing complaint for
failure to state a claim); Lefebre v. Kent, No. 09-1328 (D.D.C. July 17, 2009) (dismissing
complaint for failure to state a claim); Lffibre v. Fed. Corp., No.07-0546 (S.D. Tex. Dec. 10,
2007) (dismissing claim as frivolous); Leffebre v. United Srales, No. 14-956 (Fed. Cl. Dec. 16,
2014) (granting Govemment's motion to stay case pending payment of filing fee because t}ree
strikes rule applied)

                2.      Plaintiff   s Response.

         Plaintiff responds that employees of the Federal Bureau of Prisons created a dangerous
environment and caused his injuries by failing to separate him from fellow inmates and the medical
staff did not document his medical issues. Compl. at 3-5. By the August 2, 2016 Motion, Plaintiff
requests to transfer this case to the United States District Court for the District of Columbia. Pl.
Reply at 2. Plaintiff also requests the assistance ofcounsel. Pl. Sur-Reply at 2.

        D.      The Court's Resolution.

                1.      The United States Court Of Federal Claims Does Not Have Jurisdiction
                        To Adjudicate Plaintiff s Tort Claims.

        PlaintifFs May 19,2016 Complaint seeks "personal injury and damages committed by
employees of the Govemment. Compl. at 1. Money damages claims arising from personal injury
sound in tort. See Blacr's Lew DrcloNARy (1Oth ed.2014) (defining a tort as "[a] civil wrong,
other than breach of contract, for which a remedy may be obtained, usually in the form of
damages"); see also id. (defrning a personal tort as a "tort involving or consisting in an injury to
one's person, reputation, or feelings").
        The United States Court of Federal Claims does not have jurisdiction to adjudicate tort
 claims. See 28 U.S.C. $ 1a91(a) ("The United States 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 department, or upon any
 express or implied contract with the United States, or for liquidated or unliquidated damages in
 cases not sounding in tort." (emphasis added)); see also Aetna Cas. & Sur. Co. v. United States,
 655 F.2d 1047, 1059 (Ct. Cl. 1981) ("Tort claims       .  are expressly beyond our Tucker Act
jurisdiction.").

               2.      The May 19,2016 Complaint Should Not Be Transferred To A United
                       States District Court, Pursuant To 28 U.S.C. $ 1631.

       Section 1631 of Title 28 ofthe United States Code provides:

       Whenever a civil action is filed in a court as defined in section 610 ofthis title or
       an appeal, including a petition for review of administrative action, is noticed for or
       filed with such a court and that court finds that there is a want ofjurisdiction, the
       court shall, if it is in the interest ofjustice, transfer such action or appeal to any
       other such court in which the action or appeal could have been brought at the time
       it was filed or noticed, and the action or appeal shall proceed as if it had been filed
       in or noticed for the court to which it is transferred on the date upon which it was
       actually filed in or noticed for the court from which it is transferred.

28 U.S.C. $ 1631.

        The United States Court of Federal Claims is authorized to transfer the May 19,2016
Complaint, but only when the conditions of Section 163 1 are met. See Tex. Peanut Farmers v.
United States,409 F.3d 1370, 1375 (Fed. Cir. 2005) ("[T]he trial court could have ordered transfer
without being asked to do so by either party[.]"). The decision to transfer rests within the discretion
of the transferor court. ,See In re Vistaprint Ltd., 628 F .3d 1342, 1344 (Fed. Cir. 2010) (stating
that "[the] trial court has broad discretion in transfer decisions") see also Christianson v. Colt
Industries Operating Corp., 486 U.S. 800, 816-17 (1988) (holding that a transfer order should be
affirmed unless "clearly erroneous"). In order for a case to be transferred under Section 1631, the
court must determine that: (1) the transferring court lacks subject matter.jurisdiction; (2) the case
could have been brought in the transferee court at the time the case was filed; and (3) transfer is in
the interest of justice. See Tex. Peanut Farmers, 409 F.3d at 1374 (holding that transfer is
appropriate under Section 1631 when the court finds that there is a want ofjurisdiction, the action
could have timely been brought in another court, and transfer is in the interest ofjustice).

       The first requirement of Section 163 1 is met in this case, because the United States Court
ofFederal Claims does not have subject matter jurisdiction to adjudicate the tort claims alleged in
the May 19,2016 Complaint. Compl. at 1 (alleging "personal injury and damages committed by
employees of the Govemment").

        The second requirement of Section 163 1 is not met, however, because the United States
District Cou( for the District of Columbia did not have iurisdiction over Plaintiff s tort claims
when the May 19, 2016 Complaint was filed. An action may be filed under the FTCA only after
admini strative remedies are exhausted.

        Section 2401(b)   ofthe FTCA provides:
        A tort claim against the United States shall be fbrever barred unless it is presented
        in writing to the appropriate Federal agency within two years after such claim
        accrues or unless action is begun within six months after the date of mailing, by
        certified or registered mail, of notice of final denial of the claim by the agency to
        which it was presented

28 U.S.C. $ 2a01(b); see also 28 U.S.C. $ 2675(a) (requiring that prior to being filed in a United
States District Court, an FTCA claim "shall have first [been] presented. . . to the appropriate
Federal agency and [the] claim shall have been finally denied by the agency in writing and sent by
certified or registered mail.").

        Plaintifl allegedly incurred injury on May 18, 2012. Compl. at 2. Accordingly, Plaintiff
was first required to file an Administrative Tort Claim with the Federal Bureau of Prisons no later
than May 18,2014. ,See 28 U.S.C. $ 2a01(b); see also 28 C.F.R. $ 543.32 (Bureau of Prisons
regulation authorizing administrative tort claim procedures). If Plaintiff s claim was denied, then
he was required to file a complaint with a United States District Court within six months. See 28
U.S.C. $ 2401(b); see also 28 C.F.R. g 543.32(g) (requiring that a prisoner may request
reconsideration of an administrative tort claim and may, if dissatisfied with the reconsideration,
file suit in "an appropriate [United States] District Court as no further administrative action is
available").

        Nothing   in the record  indicates that Plaintiff exhausted the required administrative
remedies before filing the May 19, 2016 Complaint with the United States   Cout of Federal Claims.
In fact, the National Inmate Appeals Administrator's May 8,2014 Decision instructed that if
Plaintiff wished "to seek monetary compensation based on the negligence of stafl [he] must file
[his] claim through the administrative procedures applicable to the basis of [his] claim[.]" Compl.
Ex. 3. Because the May 19,2016 Complaint does not state that Plaintiff exhausted the relevant
administrative procedures within the applicable timeframe, as a matter of law his claim is baned.
See 28 U.S.C. $ 2401(b).

        Assuming arguendo that the National Inmate Appeals Administrator's May 8, 2014
Decision satisfied 28 U.S.C. $ 2401(b), Plaintiff nevertheless failed to file a complaint with a
United States District Court within six months after receiving the administrative decision, i.e., by
November 8, 2014. Section 1631 requires that upon transfer, "the action... shall proceed as if it
had been filed or noticed for the court to which it is transferred on the date upon which it was
actually filed on or noticed for the court from which it is transferred." 28 U.S.C. $ 1631. Even if
Plaintiff had filed the May 19, 2016 Complaint in the correct forum-the United States District
Court for the District of Columbia-his claim would be baned by the statute of limitations.

        Finaliy, Section 163l requires any transfer to be in the interest ofjustice. Section 1631
further provides that a transfened case retains its original filing date. See 28 U.S.C. $ 1631.
Transfer is in in the interest ofjustice when the plaintiff has a viable interest in preserving the
original filing date. See AGP, L.P. v. United Stqtes,4l Fed. Cl. 607,610 (1998) ("Because
dismissal would not preserve the earlier filing date, transfer is the preferable altemative for [the]
plaintiffs. . . . Transfer, rather than dismissal, would serve the interest ofjustice."). Transfer is
futile, however, when the claim would be time barred even its original filing date. See Cavin v.
 United States, l9 Cl. Ct. 190, 197-98 (1989) ("[I]f the claim would have been time barred even if
 it had been brought in the proper court, then a transfer is improper, and the case should be
dismissed."). ln this case, Plaintiffls claim is baned regardless ofwhether this court dismisses the
May 18, 2016 Complaint or transfers tlre case to the United States District Court. Accordingly,
the circumstances of this case do not require transfer, and "transfer would unduly burden the
judicial system[ -f" Tex. Peanut Farmers, 409 F.3d at 1375.

       3.   The Prison Litigation Reform Act Applies To Plaintiff.

        Under the PLRA, 28 U.S.C. $ 1915, a federal prisoner may commence a suit in any court
ofthe United States without prepayment offees or security thereof, r. e., a federal prisoner may file
in"informa pauperis;' 28 U.S.C. $ 1915(a). Section 1915(g) of the PLRA, however, states:
        In no event shall a prisoner bring a civil action or appeal ajudgment 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
        ofthe United States that was dismissed on the grounds that it is frivolous, rnalicious,
        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. $ 191s(g).

         In short, the PLRA provides a "three strikes rule"; a prisoner may not proceed in forma
pauperis if the prisoner has brought 3 or more actions dismissed either as frivolous, malicious, or
for failure to state a claim. 28 U.S.C. $ 1915(9). As the court observed in Leffebre v. United
Stales, No. 14-956 (Fed. Cl. Dec. 16,2014), Plaintiff has filed at least thirty-four civil actions in
various federal district courts, and the "three strikes rule" has been invoked to bar Plaintiff from
proceeding unless he pays the filing fee. 1d

         In any event, the court is required to dismiss an action once it is apparent that the "three
 strikes" rule applies and the prisoner is not in imminent danger of serious physical injury. See 28
U.S.C. $ 1915(9) ("1n no event shall a prisoner bring a civil action . . . .") (emphasis added); see
also Johnson v. United States, 82 Fed. Cl. 150, 154 (2008) (determining that, because Section
 1915(g) applied, the plaintiffs "complaint must be dismissed"). There is nothing in the record
that demonstrates that Plaintiff is in imminent danger of a serious physical injury. Therefore, in
this case, even if the May 19, 2016 Complaint was not dismissed for lack of subject matter
jurisdiction, Plaintiff would be barred from proceeding in forma pauperis by operation of the
 "three strikes rule." See 28 U.S.C. $ 1915(g).
V.         CONCLUSION
      For the foregoing rezrsons, the Clerk of the Court is directed to dismiss the May 19,2016
Complaint for lack of subject mauer jurisdiction under RCFC l2@)(l).

        The Clerk is further directed to accep no other actions or filings by Andre David Leffebre
without an order from the Chief Judge of the United States Court of Federal Claims. ln seeking
leave to file any actions in this court, Mr. Leflebre must explain how his complaint raises new
matters properly before this court. See RCFC I 1(b) (baning the filing of unwananted or frivolous
claims).

       IT IS SO ORDERED.




                                                    Judge
