                                                                                               FILED
                                                                                              FEB   27
                                 0Rl6[NAt                                                 U.S. COURT OF
                                                                                                         2017


                                                                                           o u'A L c LAr M s
            Iftt tllt   @n   f   tr!   9ltuteg @ourt o f
                                      No. 16-1708C (Pro Se)
                                                               f   o   !   rrut   @ls infgt

                          (Filed: February 27 ,2017 | Not for Publication)

                                                       Keywords: Pro Se Complaint; Subject
 ASHTON KRUKOWSKI,                                     Matter Jurisdiction; Tucker Act; 28
                                                       U.S.C. $ 1491;Habeas Corpus; 28 U.S.C.
                        Plaintiff,                     $2241;28 U.S.C. $ 2254; Rehabilitation
                                                       Act; Prison Litigation Reform Act.


 THE TINITED STATES OF AMERICA,

                        Defendant.


Ashton Krukows*i, Las Vegas, NV, Plaintiff Pro Se.

Russell J. upton,Tial Attomey, commercial Litigation Branch, civil Division, Departnent of
Justice, Washington, DC, for Defendant, with whomwere Patricia M. McCarthy, Assistant
Dfuector, Robert E. Kirschman, -Ir., Director, and, Chad A. Readler, Acting Assistant Attomey
General.

                                       OPINIONAND ORDER

KAPLAII, Judge.

          On December 27 ,2016, Mr. Krukowski, the pro se plaintiff, filed four handwritten
 notices which the Clerk ofCourt construed together as a complaint. The notices relate to a writ
 ofhabeas corpus and other, currently pending lawsuits in state and federal court. on February 6,
 2077 , tae govemment filed a motion to dismiss, arguing that the court lacks subject matter
jurisdiction over the complaint, and altematively, that Mr. Krukowski has failed to state a claim
 upon which reliefcan be granted. For the reasons set forth below, the Court concludes that it
 lacks subject mafter jurisdiction over the complaint. Accordingly, the govemment's motion to
dismiss is GRANTED and the complaint is DISMISSED wirhout preiudice.

                                         BACKGROUND

        Prior to filing the notices referred to above, Mr. Krukowski filed a separate complaint in
this court on August I 5, 2016, asserting, inter alia, that state authorities in Nevada had falsely
anested him and violated his constitutional rights. See Krukowski v. United States, 129 Fed. Cl.
440,442 (2016).' That case was assigned to Judge wheeler, and on December 2,2016. Jud,se
wheeler dismissed rhe complaint for lack of subject maner judsdiction. See id. at 44344.irr.

I As
     of December 2016,Mr. Krukowski was incarcerated in clark county Detention center               in
Nevada. See Krukowski, 129 Fed. Cl. at 442; see also Compl. at l, Dockit No. 1.




                                                                ?01q 1e00 0Bu0           t09l ttirq
Krukowski then filed a notice of appeal in the Court of Appeals for the Federal Circuit, on
January 5, 2017. Notice ofAppeal, Krukowski v. United States, No. 16-1010 (Fed. Cl.2017),
Docket No. 17. That appeal is crmently pending. See id.

         On December 27,2016,Mr. Krukowski filed the documents at issue here, four separate,
one-page handwritten notices, which collectively the Clerk deemed a new complaint. See Compl.
They are each dated December 4, 2016. See id. The first notice is entitled "Notice ofPetition for
writ of Habeas corpus [P]ursuant [to] 28 U.S.C. $ 2241 with [A]dditional [I]nvoked [S]tatutes.,,
Id. at 1. The caption reads "Ashton Krukowski vs. United States et. a1." and includes on the
right-hand side "U.S. District Court of Nevada case # 2:16-CY -02445-APG-VCF" and *8th
District of Nevada Case # C-l6-312854-1 Dept. # 8." Id. In the body of this document, Mr.
Krukowski wrote only that he was "giv[ing] notice of Petition for Writ of Habeas Corpus
pursuant [to] 28 U.S.C. $ 2241 with additional invoked statutes listed in the Petition, case # 2:16-
CV-02445-APG-VCF in U.S. District Court of Nevada." Id.

        ln the second notice, entitled'Notice of Additional Parties to Civil Action,,'Mr.
Krukowski simply listed the state of Nevad4 the Supreme court of Nevad4 the "U.s. District of
Nevada," the United States Court of Appeals for the Ninth Circuit, the United States Court of
Federal Claims, and the United States. Id. at 2. The caption is identical to the caption on tle first
notice, except that the case number for the Nevada state court case is absent. See id.

         The third notice is entitled'Notice of Motion to Remove Civil Action to U.S. Court of
Federal claims pursuant [to] 28 u.s.c. g 2254 and under the Rehabilitation Act and prison
Litigation Reform Act." Id. at 3. The caption is identical to the first notice. See id. In this third
document, Mr. Krukowski "give[s] notice of [his] motion to remove [his] civil action to [the]
U.S. Court of Federal Claims pursuant to 28 U.S.C. $ 2254 and under the Rehabilitation Act and
Prison Litigation Reform Act." Id. He also appeared to describe the underlying civil action for
which he seeks removal as a "[c]ivil action pursuant [to] 28 U.S.c. g 2241 with additional
invoked statutes listed in the Petition for Writ of Habeas Corpus in U.S. District Court of Nevada
case # 2:16-cV-02445-APG-vcF." Id. Mr. Krukowski noted that "[a]dditional parties
                                                                                             [are]
listed in the Notice of additional Parties Document enclosed.,' Id.

        Finally, the fourth notice states that it is an "Objection to the Petition for Rehearing case
# 71117 and 71118 in Supreme Court of Nevada." Id,. at 4.In this document, Mr. Krukowski
only stated that he objects to the purported rehearing on the "grounds ofa civil action filed in
process against the parties before the Petition." Id.

                                           DISCUSSION

        In determining whether the court has subject matter j urisdiction, it accepts as true all
undisputed facts in the pleadings and draws all reasonable inferences in favor of the olaintiff.
Trusted Inteqration. Inc. v. united states, 659 F.3d 1159, 1163 1Fed. Cir. 201l). However, ifa
movant disputes the basis ofthe court's jurisdiction, the allegations in the complaint are not
controlling and the Court may review evidence extrinsic to the pleadings. Cedars-Sinai Med. Ctr.
v. Watkins, 11 F.3d 1573, 1583-84 (Fed. Cir. 1993).
        It is well-established that complaints that are filed by pro se plaintiffs, like this one, are
held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,
404 U.S. 519,520 (1972). Nonetheless, a plaintiff bears the burden of establishing subject matter
jurisdiction by a preponderance ofthe evidence. Brandt v. United States, 710 F.3d 1369,1373
 (Fed. Cir. 2013); see also Reynolds v. Army & Air Force Exch. Serv.,846F.2d 746,748 (Fed.
 Cir. 1988). Therefore, even pro se plaintiffs must persuade the Court tlut jurisdictional
requirements have been met. Bemard v. United States, 59 Fed. Cl. 497 , 499, aff d, 98 F. App'x
 860 (Fed. Cir. 2004); see also Zulueta v. United States, 553 F. App'x 983, 985 (Fed. Cir. 20i4)
("[T]he leniency afforded to a pro se litigant with respect to mere formalities does not relieve the
bwden to meet jurisdictional requirements." (quotation and citation omitted)).

         The Tucker Act grants the United States Court of Federal Claims the power.,to render
judgment upon 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 ot implied
contract with the United States, or for liquidated or unliquidated damages in cases not sounding
in tort." 28 U.S.C. $ l49l(a). It serves as a waiver of sovereign immunity and a jurisdictional
grant, but it does not create a substantive cause ofaction. Jan's Helicopter Serv.. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299,1306 (Fed. cir. 2008). A plaintiff, therefore, must establish
that "a separate source of substantive law. . . creates the right to money damages.,, Id. (quoting
Fisher v. United States ,402F .3d 1167, 1172 (Fed. cir. 2005) (en banc in relevant part)); Rick's
Mushroom Serv.. Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (stating that a
"plaintiff must look beyond the Tucker Act to identifu a substantive source of law that creates
the right to recovery of money damages against the United States" (citation omiued)).

        The govemment's primary argument here is that Mr. Krukowski,s complaint must be
dismissed pursuant to 28 u.s.c. $ 1500 because "his underlying claims were pending in other
courts at the time Mr. Krukowski filed his Notices." Def.'s Mot. for Summ. Dismissal of pro se
Matter at 8, Docket No. 5. That statute reads, in pertinent part, that the "united states court of
Federal Claims shall not have jurisdiction ofany claim for or in respect to which the plaintiffor
his assignee has pending in any other court any suit or process against the united staies." 2g
u.s.c. $ 1500.
          To an extent, these notices do relate to Mr. Krukowski's other pending legal actions. For
 example, he lists district court and state court case numbers in the caption of each notice, and he
 also seeks removal ofthe federal district court case to this court. See Compl. at 3. It is difficult,
however, to view these documents as attempting to institute new proceedings in this court based
upon the same underlying claims pending in those other courts. In fact, it is quite possible that
Mr. Krukowski did not intend these documents to institute any new proceeding in this court. The
notices are dated December 4,2016, only two days after Judge wheeler dismissed Mr.
Krukowski's first complaint. See id. at 1. considering that Mr. Krukowski's notices took
approximately twenty-three days to make their way to this court from the conectional center,
                                                                                                    lcg
id., it is likely that he had not yet received notice of Judge wheeler,s dismissal when he mailed
the notices at issue here. Thus it may be that Mr. Krukowski was attempting to submit the
notices to the court in his then-pending case for which he had already rubmitt"d a complaint.

       But in any event, to the extent these notices can be construed as a new complaint. the
court cannot determine whether they assert any claims "for or in respect to which" Mr.
Krukowski "has pending in any other court any suit or process against the United States,"
because they are entirely devoid of any legal claims or factual allegations. For that reason, the
Court must dismiss Mr. Krukowski's complaint for lack of subject matter jurisdiction.

        The documents Mr. Krukowski filed do not assert any entitlement to money damages
from the United States based upon a source of substantive law. In other words, he fails to plead
the existence ofany basis for Tucker Act jurisdiction. In fact, the documents make no claim for
any type ofdamages whatsoever. Rather, Mr. Krukowski's first notice seeks a writ of habeas
corpus, citing 28 U.S.C. $ 2241 . Compl. at 1 . That statute addresses the power of specific courts
to issue a writ of habeas corpus; the Court ofFederal Claims is not among the courts listed as
having that power. 28 U.S.C. $ 22al@).ln fact, the Court is not empowered to grant a writ of
habeas corpus and a petition for the same is outside the Court's subject matter j urisdiction.
Ledford v. United States ,297 F .3d 1378, 1380-81 (Fed. Cir. 2002); see also Emerson v. United
States, 123 Fed. Cl. 126, 129 (2015).

         With respect to the second notice, it makes no allegations or assertions, but simply lists
"additional parties" to Mr. Krukowski's suit. See Compl. at 2. To the extent it attempts to apply
any of Mr. IGukowski's allegations to the state of Nevada, the Supreme Court of Nevada, the
"U.S. District of Nevada," the Court of Appeals for the Ninth Circuit, and this court, those
claims must be dismissed, as the court has no jurisdiction over claims against any defendant
other than the United States. See United States v. Sherwood, 312 U.S. 584, 588 (19a1) ([I]f the
relief sought is against others than the United States the suit as to them must be ignored as
beyond the jurisdiction ofthe court."); Jiron v. United States, 118 Fed. Cl. 190, 198-99 (2014)
("It is well settled that the United States is the only proper defendant in the United States Court
of Federal Claims." (quotation omitted)).

        Mr. Krukowski's third notice seeks removal ofhis pending civil action in district court to
thiscourt,baseduponthreegrounds:1)28u.s.c.92254;2)theRehabilitationAct;and3)the
Prison Litigation Reform Act. Compl. at 3. None ofthese statutes is a substantive source oflaw
giving rise to a right to money damages from the United States, and none provides grounds for
transferring Mr. Krukowski's existing civil action to this court.

         The first statute, 28 u.s.c. $ 2254,is another habeas corpus statute, addressing petitions
by those persons held on the basis ofajudgment issued by a state court which that person asserts
is in violation ofthe constitution, federal law, or a treaty. Again, the court ofFederal claims is
not listed among the courts having the power to grant the wdt. 2g u.s.c. $ 225a@). Moreover,
the statute does not provide any basis for transferring a pending civil action to this court. See id.
And, as noted above, a writ of habeas colpus is outside the court's jurisdiction. Ledford, 297
F.3d at 1380-81.

         The Rehabilitation Act is a law that was originally enacted in 1973, ard it addresses
 vocational rehabilitation and employment ofthose with disabilities. See Rehabilitation Act of
 1973, Pub. L.93-112,87 stat. 355. It has subsequently been amended and is codifred at 29
 U.S.C' $$ 701 et seq., but it does not contain any provision regarding the transfer ofa civil case
 to the court of Federal claims. See 29 u.s.c. $g 201 et seq. Further, the court..does not have
jurisdiction to review claims brought under the Rehabilitation Act of 1973.,, saseman v. United
 States, 82 Fed. Cl.367,371 (2008).
        The final statute cited by Mr. Krukowski, the Prison Litigation Reform Act, amended a
number ofstatutory provisions regarding federal litigation by prisoners. See Prison Litigation
Reform Act of 1995, Pub. L. 104-134, $$ 801-10, 110 Stat. 1321. It did not provide aright to
money damages for purposes of Tucker Act jurisdiction, nor did it provide for the transfer ofa
civil action to this court.2 See id.

         Finally, Mr. Krukowski's last notice also fails to provide any basis forjurisdiction in this
court. It only addresses petitions apparently pending before the Supreme Court ofNevada and
does not make any allegations against the United States.

        In short, it is difficult to construe Mr. Krukowski's notices as forming a new complaint in
this court. To the extent they can be so construed, the "complaint" fails to make any allegations
ofa right to money damages from the United States based on a separate source of substantive
law. Rather, the notices relate to other pending court actions, seek removal to this court, and seek
a writ ofhabeas corpus, without pleading a basis forjurisdiction in this court. Because Mr.
Krukowski fails to allege the existence ofany basis for Tucker Act jurisdiction, the Court must
dismiss his complaint. Accordingly, the govemment's motion to dismiss is GRANTED and the
complaint is DISMISSED without prejudice.

                                          CONCLUSION

        For the reasons set forth above, the govemment's motion to dismiss for lack ofsubiect
maner  jurisdiction is GRANTED and Mr. Krukowski's complaint is DISMISSED without
prejudice. The Clerk is directed to enter j udgment accordingly. Each party shall bear its own
costs.


         IT IS SO ORDERED.

                                                           tL/4,L-
                                                      ELAINE D. KAPLAN
                                                      Judge




' The Act did, however, amend the in forma pauperis statute, 28 U.S.C. $ 1915, which imposes
specific requirements on prisoners attempting to institute litigation without paying fees. Here,
Mr. Krukowski has neither filed an application to proceed in forma pauperis nor has he paid the
filing fee. See Docket. This in and of itself provides a sufficient basis to dismiss his complaint.
See Brown v. United States, 88 Fed. CL.795,798 (2009); see also 28 U.S.C. g 1926; Rute
77.1(c) ofthe Rules ofthe Court ofFederal Claims.
