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                                           No. 16-507C

                                       (Filed: July 12,2016)
                                                                                  FILED
                                                                                 JUL   |   2   ?016


  ARTHIJR. RAY ROBINSON.                                                        U.S, COURT OF
                                                                               FEDERAL CLAIMS

                          Plaintiff,                    Pro Se Complaint; Dismissal for Lack
                                                        of Subject Matter Jurisdiction; Claim
                                                        for constitutional violations; Not in
                                                        Interest ofJustice to Transfer Under 28
  THE UNITED STATES,                                    u.s.c. $ 1631.

                         Defendant.


Arthur R. Robinson, Angola, LA, pro       se.


                                                ORDER

L         Background

          on April 25,2016, Mr. Arthur Ray Robinson filed suit against officials within the
David wade correctional center, the prison in which he currently is serving time.
Compl. 1.5,7. Il,ECFNo. l. Mr. Robinson allcges that as a condition of his
conflnenrent. he is exposed to second hand smoke. and that exposure is a violation ofhis
Eighth Amendrnent rights. Id.

       After tiling suit, Mr. Robinson moved fbr leave to proceed in tbrma pauperis.
Forma Pauperis l, ECF Nos. 4. 6. 7. The court granted that motion on June 2g, 2oto.
Order, I:CF No. 8.

          The matter is now ripe fbr a ruling.

II.       Legal Standards

        Plaintiffbears the burden of establishing that the court has subject matter
jurisdiction over his case. See Haines v. Kerner, 404 u.s. slg, s20-tr (1972) (per
 curiam) (citing conley v. Gibson, 355 u.s. 41,45-46 (1957)); Riles v. initei sltates, 93
Fed. cl. 163,165 (2010). The burden is one ofpreponderant evidence. Riles,93 Fed. cl.
at 165.



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        Plaintiff need only make, in his complaint, "a short and plain statement of the
 grounds for the court's jurisdiction" and "a short and plain statement of the claim
 showing that the pleader is entitled to relief." RCFC 8(aXl)-(2). The factual allegations
 need not be detailed, but they must "raise a right to relief above the speculative level" and
 offer more than "labels and conclusions" or "a formulaic recitation of the elements of a
 cause of action." Coleman v. United States, I l6 Fed. Cl.461,468 (2014) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544,555 (2007)). When evaluating subject matter
jurisdiction, the court will accept the complaint's undisputed allegations as true and will
 construe the complaint in a manner favorable to the plaintiff. Coleman, 116 Fed. Cl. at
 468.

        "[A] pro se plaintiff is held to a less stringent standard than that of a plaintiff
 rcpresentcd by an attorney. Riles, 93 Fed. Cl. at 165 (citing Hughes v. Rowe,449 U.S. 5,
 9 ( 1980) and Taylor v. United States, 303 F.3d 1357 , 1359 (Fed. Cir. 2002)).
Nevertheless, a pro se plaintiffbears the same burden of establishing the Court's
jurisdiction by a preponderance ofthe evidence." Id.

      The jurisdiction of the United States Court of Federal Claims is defined by the
Tucker Act. According to the Tucker Act:

               United States Court ofFederal Claims shall have jurisdiction 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 or implied contract with
              the United States, or for liquidated or unliquidated damages in cases
              not sounding in tort.

28 u.s.c. $ la9l(a)(l). As a jurisdictional statut€, the Tucker Act "does not create any
substantive right[s] enforceable against the United States for money damages." Mendiola
v. united States,l24Fed. cl.684,687 (2016) (quoting united states v. Testan,424u.s.
392' 398 (1976)). Thus, a plaintiff seeking to bring a claim in the court must identiff a
substantive right in another source of law, such as a "money-mandating constitutional
provision, statute or regulation that has been violated, or an express or implied contract
with the united States." Mendiola, 124Fed. cl. at 687 (quoting Loveladies Harbor. Inc.
v. united States , 27 F .3d 1545, 1554 (Fed. cir. 1994) (en banc) (reasoning that the
Tucker Act serves as a waiver of sovereign immunity for claims against the United States
not sounding in tort that are founded upon the Constitution, a federal statute or regulation,
or an express or implied contract with the United States)).

      The court does not have jurisdiction to hear claims "naming states, localities, state
government agencies, local govemment agencies and private individuals and entities as
defendants." Reid v. United States, 95 Fed. cl. 243, z4g (2olo). Moreover, the limited
jurisdiction of this court "expressly excludes tort claims, including those committed by
 federal officials." Brown v. United States, 88 Fed. Cl.322,328 (2009).

        The court is "obligat[ed] to examine its ownjurisdiction at all stages ofa
 proceeding and may raise the issue for consideration sua sponte." Matthews v. United
 States,72 Fed. C[ 274,278 (2006) (citing Wood-Ivey Sys. Corp. v. United States,4 F.3d
 961,967 (Fed. Cir. 1993); Hurt v. United States, 64 Fed.Cl. 88, 89 (2005). Rule 12 of
 the United States Court of Federal Claims permits the court to dismiss an action "if the
 court determines at any time that it lacks subject-matter jurisdiction." RCFC l2(hX3).

 Ill.   Discussion

        A.     The Court Is Without Jurisdiction to Hear Claims Brousht Under the 8th
               Amendment

       Mr. Robinson alleges he has "a recognizable claim for cruel and unusual
punishment." Cornpl. l, 5. 7. But, the Court of Federal Claims is without jurisdiction to
hear claims brought under the Eighth Arnendrnent. Jiron v. United States, 1 18 Fed. Cl.
190, 199 (2014) (citing Traf'ny v. United States. 503 F.3d 1j39, t340 (Fed. Cir. 2007).
Thus, the court must dismiss Mr. Robinson's Eighth Amendment claim.

        B.     The Court Lacks Jurisdiction to Hear Tortious Claims Against lndividuals

       Mr. Robinson also contends that certain officials - specifically Burl N. Cain, the
warden ofthe correctional center and Richard Stalders, the secretary ofthe Louisiana
Department of corrections, as well as captain willie Thomas, Lieutenant Randolph
Beauboef, Lieutenant Daniel, and Master Sargent Nelson were all aware of his health
                                                          -
concerns, but they each did very little to improve the condition of his confinement.
Compl. 6-9.

       The court is without "jurisdiction over claims against individuals." Emerson v.
United States, 123 Fed. cl. 126, 129 (2015). Moreover, the court is without iurisdiction
to hear tort-based claims * such as claims of misconduct or malfeasance. woodson v.
unired states, 89 Fed. Cl. 640,649-50 (200g) (dismissing oro se prisoner's tort-based
complaint alleging fraud, misconduct, and malfeasance). Accordingly, the court cannot
hear Mr. Robinson's claims against the named prison officials.

        C.     Transfer to Federal District Cout is Not proper

        when   a   civil action is filed, "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 app-l could
 have been brought at the tirne it was frled or noriced." 2g u.s.c.A. g 1631 (emphasis
 added). Transfer rnay be appropriate if the court hnds that: (l) it lacks subject matter
jurisdiction; (2) the case could have been brought in the transferee court at the time the
    case rvas filed; and (3) a transf'er would serve the interests ofjustice. Reid v. United
    States, 95 Fed. Cl. 243,247 (2010). Discretion lies rvith the transf'eror court to determrne
    "if such transf'er'would nevertheless be futile given the weakness of plaintiff s case on
    the merits."' Spencer v. United States, 98 Fed. C|.349,359 (2011) (citing Faulkner v.
    United States,43 Fed. Cl. 54, 56 (1999) (quoting Sieeal v. United States, 38 Fed. Cl. 386,
    390 (1997)).

        Even if a plaintilT does not request such transfer, the court may consider on its
 orvn whether "is it in the interest ofjustice" to transfer plaintiffs complaint to another
 court under 28 U.S.C. g 163 1. Reid, 95 Fed. Cl. at 250 (denying transf-er of p1p_Sg
 prisoner's claim due to the unclear nature of the alleged claims); Riles, 93 Fed. Cl. at 166
 (denying transfer ofa pro se litigant's case to district court because none ofhis alleged
 constitutional claims had any chance of being remedied); Pleasant-Bey v. United States,
 99 Fed. Cl. 363, 368 (201t) (denying transfer ofa p1q_9e prisoner,s claim because it was
 substantially similar to a case previously filed in the district court).

        Mr. Robinson has previously filed an action in the United States District Court for
the Middle District of Louisiana making the same claims he makes here. In his action in
district court, Mr. Robinson alleged that his ongoing exposure to second hand smoke, as a
condition of his confinement, violated his constitutional rights under the Eight
Amendmcnt. See Robinson v. Louisiana. et al., No. 05-1016, 2009 wL 469324g, atal
(M.D. La. Sept. 23, 2008). The district court found thar Mr. Robinson failed to show that
he had been exposed to unreasonably high levels of environmental tobacco smoke, and
granted defendants' motions to dismiss and for summary judgment. I Id.

        The court finds that a transfer in this case would not serv€ the interests of iustice
because neither Mr. Robinson's alleged constitutional claim nor his alleged tort claims
have any chance of being remedied in district court. Moreover, Mr. Robinson is
effectively challenging in this court the outcome of the action he previously filed in the
district court. Thus, Mr. Robinson's claims do not merit transfer.




'       on appeal, the Fifth circuit found that the district court should not have $anted
summary judgment for Mr. Kevin Benjamin, one of the named defendants, whJallegedly
was aware of Mr. Robinson's health concerns. The appellate court remanded the
                                                                                     case for
the district court's further consideration and, ifwarranied, additional proceedings against
Mr. Benjamin. Robinson v. Louisiana. et. al., 363 Fed. Appx. 307, 30g (5th ci;. 20r0).
The record is silent as to whether any action has been taken on remand.
ry.    Conclusion

        Because Mr. Robinson does not bring claims over which this court has
jurisdiction, his Complaint is DISMISSED.

       IT IS SO ORDERED.




                                               'PATRICIA E. CAMPBELL-S
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