                                   llrt\t @nfte! btutts [,surt of /eDrrat @tsimd
                                                                                                        No. l9-1634C
                                                                                                 (Filed: Novemb er 12,2019)
 *   :r   *   +:   * :t   {<   * * * {. *   +   *   ,t   *++**********                           r(   ***    !*   *   ,r   *   *
 KEVIN BESS,

                                            Plaintiff,
                                                                                                                                   Pro Se Plaintiff; Sua Sponte Dismissal;
                                                                                                                                   Subject Matter Jurisdiction; RCFC
                                                                                                                                   l2(hX3); Proper Defendant; Civil Rights
 THE LINITED STATES,                                                                                                               Claims; In Forma Pauperis

                                            Defendant.                                                                         *
 *************r*****                                        :t   *   :r   *   jt   **   :t   *   !* +   :r,* * * * *           *

 Kevin Bess, Charleston, MO, pfo                                                             SS.

 Sonia W. Mumhy, United States Department of Justice, Washington, DC,
                                                                      for defendant.

                                                                                                 OPINION AND ORDER

 SWEENEY, Chief Judge

          Plailtlff Kevin Bess, proceeding prq se in this matter, alreges that corrections
.the -Missouri
       -.
                Department of co'ections
                                                                                       officers at
                                        violated his civil rights. Mr. Bess seeks monetary
damages and various other forms ofreliel and he has also filed
formapaupeqa. As explained below, the court lacks jurisdictron to
                                                                 an application to pro"..J                                                                            i'
                                                                     consider Mr. Bess,s claims.
Thus, without awaiting a response from defendant, the court grants
                                                                    Mr. Bess's application to
proceed in forma oauperis and dismisses his complaint.


                                                                                                        I.   BACKGROUND

       Mr. Bess is currently incarcerated at the Southeast Correctional Center
                                                                                   in Charleston,
Missouri, a facility of the Missouri Department of corrections. Ex.,
                                                                        ECF No. 1-2 at 7. He filed
his complaint on october 21,2019. Documents filed with
                                                            the complaint reflect that Mr-Bess
worked in food service at the prison and was alrowed a shower
                                                                 at the end of his shift. However,
Mr. Bess alleges that a conections officer at the prison a owed him
                                                                       to shower.,onry for a few
minutes," compl. l, a limitation that he maintains violates his
                                                                civil rights, id. at 3. 'r\4r. Bess
does not claim that this alleged violation occurred
                                                    more than once.

         A Conduct violation Report dated January 17,201g, was fired
                                                                        along with the complaint.
Ex', ECF No' l-2 at 7 ' The report indicated that vr. iess retumed
                                                                     from his food service work at
approximately l0: I 0 AM on that date, and subsequentry entered
                                                                  the shower. Id. It further stated
that although Mr. Bess "had been . . . giuen nu-erous
                                                       iirectives over the intercom to exit the



                                                                                                                                        ?!l!_ilT       E0n0 sl,s3 essE
 shower and lockdown starting at 10:31      AM," he did not exit the shower until approximately
 10:49 AM. Id. Mr. Bess was cited for       "fail[ure] to comply with an order." Id. at 7-9.

         Mr. Bess seeks relief in a variety of forms. For monetary reliel he seeks a lump sum of
 $90,000.00. Id. at 1 I . He also seeks "[t]o be released [from prison] within the next year." Id.
 Finally, Mr. Bess appears to seek the following as part ofhis compensation: (1) ideniification
 documents, such as a driver's license, birth certificate, and social iecurity card; (2) car
 registration, with license plates; (3) a one-year reservation at a St. Louis hotel; (4) a car;
 (5) various items of clothing and bedding; and (6) suitcases. Id.

                                     II.   LEGALSTANDARDS

                                           A. Pro Se Plaintiffs
        Pro se pleadings are "held to less stringent standards than formar pleadings drafted
 _
 lawyers" and are "to be liberally                          pardus,
                                                                                             by
                                   construed." Erickson v.           55r u.s. s9, 9I (2007) (per
curiam) (intemal citation omitted). However, the "leniency afforded to a prq_lg litigant
                                                                                           with
respect to mere formalities does not relieve the burden to meet jurisdictio;al
                                                                                require-ments.,'
Minehan v. United States, 75 Fed. cl.249,253 (2007); accord Henke v. United states,60 F.3d
795'799 (Fed. cir. i995) ("The fact that
                                           [the prainriff] u"t"a Ep-qs in th" a*ting oflri,
complaint may explain its ambiguities, but it does not excuse its failures, if such ihere be.',).
                                                                                                  In
other words, a pro se plaintiffis not excused from his burden ofproving, by a preponderance
                                                                                                   of
          that the court possesses jurisdiction. See Banks v. united stales rui p'.sa n6g,
:]iq.l*,                                                                      ,
           2014)(citingRevnoldsv.army&RirForceExch.serv.,846F.2d746,74g(Fed.cir.
                                                                                                 1277
tl:1'9t
1988).

                                  B. Subject Matter Jurisdiction

        .wlether the court possesses jurisdiction to decide the merits ofa case is a..threshold
 matter.". Steel co. v. citizens for a Better Env't, 523 u.s. g3, g4-g5 (199g).
                                                                                   Subject matter
jurisdiction cannot be waived or forleited because it.,involves
                                                                  a court's power to h.u. u cur".',
united states v. cotton, 535 u.s. 625,630 (2002). "without jurisdiction the
                                                                                  court cannot
proceed at all in any cause. Jurisdiction is power to declare
                                                               the law, and when it ceases to exrst,
the only function_remaining to the court is ihat ofannouncing the
                                                                     fact and dismissing the cause.,,
Ex oartg McCardle,74 U.S. (7 wall) 506, 514 (1868). Therefore, it is,,an
                                                                               inflexible threshord
matter that must be considered before proceeding to evaluate the
                                                                     merits of a case.,, Matthews v.
United States. 72 Fed. cr. 274.2i8 tzooor,
                                               asard K.-con etae. sv... rn.. u. unii.a
F'3d 1000, 1004-05 (Fed. cir. 20r5). eim.. putty, oittt*urr sua
                                                                                        s;E;t
                                                                       sponte, may challenge the
courl's subject matter jurisdiction at any time. eitauqn u. y a H Co.p.i46
                                                                                  U.S. 500,;06
(2006); see also Jeun v. United states, rza r"a.   a62oe-to         poi-; lcottecting cases).
        In determining whether subject matter jurisdiction exists, the court generally,,must
accspt as true all undisputed facts asserted in the plaintiffs
                                                               complaint and &aw all reasonable
            infavor of rhe plaintiff.' Trusted Integration. Inc. v. united States, 659 F.3d
ll!:"*":
I163 (Fed. cir. 2011). However, th" .ou.t h^
                                                                                            1r 59,
                                                  ni-*bjlt.*uer      jurisdiction
                                                                                over frivorous


                                                  -2-
  claims. Moden v. united States, 404 F.3d 1335, 1340-41 (Fed. cir. 2005). For example, there is
  no subject matter jurisdiction over claims that are "so insubstantial, implausible, foreClosed by
  prior decisions . . . , or otherwise completely devoid of merit as not to involve a federal
  controversy." Id. at 1341 (citations omitted). If the court finds that it lacks subiect matter
 jurisdiction over a claim, Rule 12(h)(3) of the Rules of the United States Court of Federal
                                                                                                 Claims
  (.'RCFC') requires the court to dismiss that claim.

                                          C. The Tucker Act
         The ability of the United States Court of Federal Claims ("Court of Federal Claims") to
 entertain suits against the United States is limited. "The United States, as sovereign, is immune
 from suit save as it consenrs to be sued." United states v. Sherwood,312 u.s.5s;,5g6 (1941).
 The waiver of immunity "may not be infened, but must b- unequivocally ."pr.rr"i.,,
                                                                                           Unit.d
 States y. white Mountain Apache Tribe, 537 u.s. 465,472 (2003) (intemal quotation
                                                                                           m.arks
 omitted).

           The Tucker Act, the principal statute goveming the jurisdiction ofthis
         .                                                                        court, waives
sovereign immunity for claims against the United States, not sounding in tort,
                                                                                  that are founded
upon the United States constitution, a federal statute or regulation,   ort  expiess or implied
conftact with the united stares. 2g u.s.c. g 1ag1(a)(l)
                                                           lzbts;; whrte l,tountain, s37 u.S. at
472. However, the Tucker Act is merely a jurisdiciional statute and "does rrot
                                                                                   create any
substantive right enforceable against the United States for money damages.,,
                                                                                 united st;tes v.
TEs:&stan' 424 u.s. 392, 298 (1976). Instead, the substantive right must
law, such as a "money-mandating constitutional provision, statute, or
                                                                          ufp.u. in  *Jt     rource of
                                                                                          "r
                                                                         regulation, the violation of
which supports a claim for damages against the united states.,, James vl
                                                                             caldera, 159 F.3d 573,
580 (Fed. Cir. 1998).

                                         III.   DISCUSSION

          Under a liberal construction of Mr. Bess's prsie complaint, Mr. Bess
                                                                                 alleges that his
 civil rights were violated by a state entity. Becausi the court of Federal Claims
                                                                                     Jlearly lacks
jurisdiction over this claim, Mr. Bess's complaint
                                                       must be dismissed.

      A'   The united states Is the onry proper Defendant in the court
                                                                       of Federar Craims
         Although the court has liberally construed the compraint in the
                                                                           light most favorable to
Mr'   Bess, thecrux of the allegations aie lodged against the Missouri Dep-artment
                                                                                       of Correctlons.
 However, in the court of Federal claims, ',tt"
                                                 notv proper defendant . . . is the United Stares, not
its officers, nor any orher individuar." stephenson-v.
                                                       united states, 5g Fed. cl. 1g6, r90 (2003);
ac-cord RCFC l0(a). Because "th. unit"d stut"rlGlf
                                                          i, the only proper defendani in the court
ofFederal Claims' this court lacks jurisdiction "over any claims
                                                                    alleged against states, localities,
state and local govemment entities, or state and local government
                                                                      ofFrcialiand
An*rren vl Llrrited States, 117 Fed. cl. 330, 331 lzoi+1. lnother words, ,,ifthe".ptoy""r."
                                                                                      r;lieisought [in
    CoYrt of Federal Claimsl is against otherthan tir" unlt"o
lhe                                                             States the suit as to them must be
rgnoreo as beyond the Jurisdiction ofthe court."
                                                   sherwood, 312 u.s. at 5gg. Accordinslv.


                                                 -3-
      Mr. Bess complains of improper conduct by parties other than the United States federal
because
govemment, this court lacks jurisdiction over this claim, and it must be dismissed.

           B. The Court of F ederal Claims Lacks Jurisdiction Over Civil Rights Claims

        To the extent that Mr. Bess asserts civil rights violations, his claim is outside the reach of
this court's Tucker Act jurisdiction. First, the Court of Federal Claims is not a federal district
court. Ledford v. United States,297 F.3d1378, 1382 (Fed. Cir.2002); see also Lightfoot v.
Cendant Mortg. Com., 137 S. Ct. 553, 563 (2017) (distinguishing between the,.Court of Federal
Claims" and "federal district courts"). Second, only federal district coufts possess jurisdiction to
entertain claims alleging civil rights violations. See. e.g., Jones v. united states, 104 Fed. cl. 92,
98 (2012) (explaining that the Court ofFederal Claims has no jurisdiction over claims based on,
among other causes of action, alleged "violations of . . . civil rights"); Marlin v. united states, 63
Fed. CI.475, 476 (2005) (explaining that Bivens claims and claims alleging violations of42
U.S.C. $$ 1981, 1983, and 1985 must be heard in federal district courts). In short. the court must
dismiss any civil rights claims asserted by Mr. Bess.

                  IV, APPLICATION TO PROCEED IN FORMA                    PAUPERIS

         As noted above, Mr. Bess filed, concurrent with his complaint, an application to proceed
in forma pauperis. courts of the united States are permitted to waive the prepayment oi
payment of filing fees and security under certain circumstances.l 2g U.S.C. 1915(a)(l).
                                                                                  $
Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all of their
assets, declares that they are unable to pay the fees or give the security, and states the nature of
the action and their beliefthat they are entitled to redress.!!    Furlher, prisoners must file,,a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the complaint . . . obtained from the
appropriate official of each prison at which the prisoner is or was confined," id. g 1915(a)(2), a
requirement that can be satisfied in the court ofFederal claims by executing and filing a
"Prisoner Authorization" that authorizes the custodial facility to send the court a copy ofthe
prisoner's trust fund account statement. Finally, pursuant to what is known as the three-strikes
rule, coleman v. Tollefson, 13 5 s. ct. l7 59, l7 61-62 (201 5), if a prisoner has filed three or more
suits or appeals that were dismissed as frivolous, malicious, or failing to state a claim upon
which relief can be granted, he or she is barred from initiating further suits or appeals without
firsr paying the filing fee, unless he or she is "under imminent danger of serioui physical injury.,'
28 U.S.C. g 19ls(g).

       Mr. Bess has substantially satisfied the requirements set fofih in 2g u.S.c. g 1915(a) and
does not appear to have three strikes as described in 28 U.S.c. 19l5(g). The court therefore
                                                               $
grants Mr. Bess's application to proceed in forma pauperis and waives his prepayment ofthe

       I  while the court of Federal claims is not generally considered to be a,,court of the
United States" within the meaning of title 28 of the United States Code, the court has iurisdiction
to adjudicate applications to proceed in forma pauperis. see 2g u.s.c. 25031d;
                                                                        $          ldeeming the
court of Federal claims to be a "court of the United States" for purposes or zs'u. i.c. g l91 5).


                                                 -4-
filing fee. Notwithstanding the court's waiver, prisoners seeking to proceed in forma pauperis
are required to pay, over time, the filing fee in full. Id. $ 1915(b). Thus, Mr. Bess shall be
assessed, as a partial payment ofthe court's filing fee, an initial sum of twenty percent of the
greater of (1) the average monthly deposits into his account, or (2) the average monthly balance
in his account for the six-month period immediately preceding the filing of his complaint. See
id. $ 1915(bX1). Thereafter, Mr. Bess shall be required to make monthly payments of twenty
percent ofthe preceding month's income credited to his account. See id. 1915(b)(2). The
                                                                          $
agency having custody of Mr. Bess shall forward payments from his account to the clerk ofthe
Court ofFederal Claims each time the account balance exceeds $10 and until such time as the
filing fee is paid in full. See id.

                                       V. CONCLUSION
        The Court ofFederal Claims lacks jurisdiction over claims involving civil rights and
claims against defendants other than the United States. Therefore. the court has no iurisdiction
to consider any aspect of Mr. Bess's complaint.

        Accordingly, Mr. Bess's complaint is DISMISSED WITHOUT pREJUDICE for lack
of subject matter jurisdiction. In addition, although the court GRANTS Mr. Bess's application
to proceed !g;lorm4aagp91ig, it directs Mr. Bess to pay the filing fee in full pursuant to 2g u.S.c.
$ 1915(b), as described above. No costs. The clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.




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