            3Jn tbe Wniteb ~tates QI:ourt of jfeberal QI:laitns
                                 NOT FOR PUBLICATION
                                        No. 19-770C
                                  (Filed: October I, 2019)


                                             )
    ROBERT FRANCIS, et al.,                  )       Pro Se; Dismissal for Lack of Subject
                                             )       Matter Jurisdiction; Rule 12(b)(l);
                 Pro Se Plaintiffs,          )       Jurisdiction is lacking over: Tort
                                             )       Claims, Damages for Discrimination
    V.                                       )       and Retaliation under the Fair Housing
                                             )       Act, and Claims for Punitive Damages
    THE UNITED STA TES,                      )
                                             )
                        Defendant.           )
--------------)

                                  ORDER OF DISMISSAL

         On May I 6, 2019, plaintiffs, Robert Francis and Martha Francis, filed their

complaint in this court challenging the conduct of the Department of Housing and Urban

Development ("HUD"), as well as the conduct of the state of Ohio, the Ohio Department

of Health, the city of Barberton, Ohio, and the city ofBarberton's Water Department.

Comp!. at I (Doc. No. 1). 1 The court interprets the plaintiffs' complaint to allege that

HUD and various agencies and officials from the state of Ohio failed to enforce the

health and safety standards at their living facility and conspired to mislead United States

senators about the condition of that facility. Id. Plaintiffs also allege that HUD and state

agencies and officials discriminated and retaliated against the plaintiffs. Id. at 2.


1
  Plaintiffs' motion for leave to proceed informa pauperis (Doc. No. 2) is GRANTED
for the limited purposes of this order.
       On July 8, 2019, defendant, the United States ("the government") filed a motion to

dismiss plaintiffs' complaint for lack of subject matter jurisdiction or, in the alternative,

for failure to state a claim under Rules 12(b)(l) and 12(b)(6) of the Rules of the United

States Court of Federal Claims ("RCFC"). Mot. to Dismiss ("MtD") at I (Doc. No. 6).

The government argues that this court does not have jurisdiction over the plaintiffs'

claims because ( 1) this court does not have jurisdiction over defendants other than the

United States, (2) to the extent that the plaintiffs allege tort claims, this court does not

have jurisdiction over such claims, (3) to the extent that the plaintiffs' claims arise under

retaliation or discrimination laws, this court does not have jurisdiction over those claims

as well, and (4) to the extent that plaintiffs' allege punitive damages, punitive damages

are not available in this court as a remedy. 2 As discussed in detail below, the court agrees

with the government that this court does not have jurisdiction over the plaintiffs' claims,

and therefore, the government's motion to dismiss for lack of subject matter jurisdiction

is GRANTED.

I.     FACTS

       Based on the complaint, the plaintiffs appear to have lived in a facility, the Akron

Metropolitan Housing Authority ("AMHA"), which participates in HUD affordable




2Notwithstanding the fact that plaintiffs note that they "are herein filing a Motion For Leave To
File An Amended Complaint," no such motion has been docketed. See Pl. Opp. at 1 (Doc. No.
7). Further, the plaintiffs' opposition to the motion to dismiss did not respond to any of the
government's arguments. Id. On August 8, 2019, the government filed a reply in supp01t of its
motion to dismiss. Def.'s Reply at I (Doc. No. 8).


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housing programs. See generally Comp!. Plaintiffs allege that their building experienced

many health and safety problems including poor construction, toxic molds, and lead in

the drinking water. Id. at 3. The plaintiffs have made efforts over the course of several

years to resolve the health and safety concerns. Id. Plaintiffs allege that government

officials have failed to respond adequately to their health and safety concerns and that

government officials misled United States senators about the condition of AMHA. Id. at

3. Plaintiffs seek compensation for injuries allegedly caused by the aforementioned health

and safety conditions. Id. at 3, 7.

II.    LEGALSTANDARDS

       The Tucker Act provides this court with jurisdiction over "any claim against the

United States founded either upon the Constitution, or any Act of Congress or any

regulation of an executive depaiiment, 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. § 149l(a)(l). To invoke this court's Tucker Act jurisdiction, "a plaintiff must

identify a separate source of substantive law that creates the right to money damages."

Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant part)

(citing United States v. Mitchell, 463 U.S. 206,216 (1983); United States v. Testan, 424

U.S. 392,398 (1976)). Ifa plaintiff fails to do so, this court "should [dismiss] for lack of

subject matter jurisdiction." Jan's Helicopter Serv., Inc. v. Federal Aviation Admin., 525

F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v. United States, 487 F,3d 871,

876 (Fed. Cir. 2007)).




                                             3
       Mr. and Ms. Francis, as plaintiffs, must establish jurisdiction by a preponderance

of the evidence. Trusted Integration, Inc. v. United States, 695 F.3d 1159, 1163 (Fed. Cir.

2011) (citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.

1988)). Although a plaintiff acting prose is generally held to "less stringent standards" of

pleading than those of a lawyer, Mone v. United States, 766 F. App'x. 979 (Fed. Cir.

2019) ( citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), this liberal standard does not

extend to a prose plaintiffs jurisdictional burden, which must be proven by a

preponderance of the evidence, Fid. & Guard. Ins. Underwriters, Inc. v. United States,

805 F.3d 1082, 1087 (Fed. Cir. 20I5);Henke v. United States, 60 F.3d 795, 799 (Fed. Cir.

1997). 3

III.       DISCUSSION

       A.      No Jurisdiction over Defendants other than the United States

       Plaintiffs' complaint alleges claims against various defendants other than the

United States. Specifically, the plaintiffs seek redress from several Ohio State officials,

the state of Ohio, the Ohio Department of Health, the city of Barberton, Ohio, and the

city ofBarberton's Water Department. The government moves to dismiss many of these

claims as beyond this court's jurisdiction. MtD at 4. The government argues that this

court docs not have jurisdiction over defendants other than the United States. Id. The



3 The government argued in the alternative that the court should dismiss plaintiffs' complaint for
failure to state a claim under RCFC 12(b)(6). The court does not address this argument, as it
dismisses this case for lack of subject matter jurisdiction under RCFC 12(b)(l).




                                                4
court agrees with the government. It is well settled that this court only has jurisdiction

over claims against the United States. See Rick's Mushroom Serv. Inc. v. United States,

521 F.3d 1338, 1343 (Fed. Cir. 2008) ("the plaintiff must ... identify a substantive

source of law that creates the right to recovery of money damages against the United

States.") (emphasis added); Jiron v. United States, 118 Fed. Cl. 190, 198 (2014) (stating

that the United States is the only proper defendant in the Court of Federal Claims). As

such, to the extent that the plaintiffs' complaint challenges actions by several Ohio State

officials, the state of Ohio, the Ohio Department of Health, the city of Barberton, Ohio,

and the city ofBarberton's Water Department, the claims against defendants other than

the United States must be dismissed.

       B.     No Jurisdiction over Tort Claims

       Plaintiffs allege that HUD and various agencies failed to enforce the health and

safety standards for their living facility and conspired to mislead United States senators

about the condition of that facility. Comp. at I. The government moves to dismiss those

claims as beyond this court's jurisdiction on the grounds that this court does not have

jurisdiction over tort claims. Mtd at 4-5. The court agrees with the government. Plaintiffs'

claims for failure to enforce health and safety standards are properly construed as claims

for negligence, fraud, or other wrongful conduct. See Wright v. United States, 95 F. Supp.

943 (Ct. Cl. 1951) (finding government employees negligent for failure to enforce health

and safety standards in government operated building). This eourt does not have

jurisdiction over claims for negligence, fraud, or other wrongful conduet. Instead, sueh

claims must be commenced in the district courts. 28 U.S.C. § 1346 (b)(l); see also US.


                                              5
Marine, Inc. v. United States, 722 F.3d 1360, 1372 (Fed. Cir. 2015) (finding that the

Court of Federal Claims does not have jurisdiction over tort claims). Plaintiffs' claims

sounding in tort must be dismissed.

        C.     No Jurisdiction over Fair Housing Act ("FHA") Violations

        Plaintiffs also allege health and safety concerns, such as poor construction and

toxic molds, in their housing facility, and claim that these physical conditions were not

taken care of because of discrimination under the FHA. See Comp!. at 3. Plaintiffs further

allege retaliation under the FHA. Id. The government moves to dismiss these claims as

beyond this court's jurisdiction, arguing that this court does not have jurisdiction over

claims arising under the FHA. MtD at 5. The court agrees with the government. The FHA

prohibits discrimination in housing practices on the basis of race, religion, national

origin, gender, disability, and familial status. 42 U.S.C. § 3604. The FHA also prohibits

retaliation against a person for seeking to enforce his or her rights under the FHA. Id. §

3617.

        This court does not have jurisdiction to hear claims under the FHA. The FHA

directs any aggrieved person to "commence a civil action in an appropriate United States

district court or State court." 42 U.S.C. § 3613. When a statute provides for its own

judicial remedies, that specific remedial scheme establishes the exclusive framework for

liability. United States v. Bormes, 568 U.S. 6, 12 (2012). As such, this court does not

have jurisdiction over Plaintiffs' claims brought under the FHA.




                                              6
       D.     No Jurisdiction over Punitive Damages

       Finally, plaintiffs seek punitive damages for insults allegedly inflicted on them.

See Comp!. at 8. The government moves to dismiss this claim for lack of subject matter

jurisdiction, contending that punitive damages are not recoverable under the Tucker Act.

MtD at 6. The court agrees with the government. It is well established that punitive

damages are not recoverable under the Tucker Act. 28 U.S.C. § 1491(a)(l); see also Rig

Masters, Inc. v. United States, 42 Fed. Cl. 369, 373 (1998) ("punitive damages" are "not

available in this court."). As a result, plaintiffs' claim for punitive damages must be

dismissed.

                                      CONCLUSION

       Because this court does not have subject matter jurisdiction over any of the claims

in the plaintiffs' complaint, the government's Motion to Dismiss is GRANTED. The

Clerk of Court is directed to dismiss the plaintiffs' Complaint for lack of subject matter

jurisdiction under Rule 12(b)(l) of the Rules of the United States Court of Federal

Claims.

       IT IS SO ORDERED.




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