                                                        ORIGII-JAT
                  lln t\e @nfte! 5tatts                                             @ourt of   frbrrul       @luimg
                                                                  No. l5-426C                                     FILED
                                                          (Filed: November 3, 201 5)
                                                                                                                Nov - 3   2015
t * ** ** ** *+* ***        *!   *,t * * * **1. * *,t,1* **,k *** rr,t         r!

DENNv-RAvHARDTN,
                                                                               I                              ,Hot;fooru8l?fi,
                                      Plaintiff,                               *       Pro Se Plaintiff; Dismissal for Lack   of
                                                                               *       Jurisdiction;FrivolousComplaint;28U.S.C.
 v.                                                                            +       g 1915(9); "Three-Strikes" Rule;
                                                                                       Annlication to Proceed In Forma Pauperis
lHE                      srATES,                                               I
        'NITED                                                                 1.


                                      Defendant.                               *
* :i,t'1. * * *,t * * * * * * * * * * * * * * * * * * *,* * * * *   {.   ***   *

Denny-Ray Hardin, Kansas City, MO, pfa se.

Nathanael B. Yale, United States Department of Justice, Washington, DC, for defendant.

                                                          OPINION AND ORDER

SWEENEY, Judge

        Plaintiff Denny-Ray Hardin, proceeding p1q se, alleges that he was unjustly convicted and
unlawftlly incarcerated by the federal government. Defendant moves to dismiss plaintiff s
complaint for lack ofjurisdiction. Plaintiff moves for a default judgment against defendant and
seeks leave to proceed in forma oauperis. For the reasons set forth below, the court grants
defendant's motion to dismiss, grants plaintiff s application to proceed in forma pauoeris, and
denies plaintiff s motion for default judgment as moot.

                                                              I.     BACKGROUND

        Plaintiff is no stranger to the United States Court ofFederal Claims ("Court ofFederal
Claims"). He has filed three other complaints in this court, all of which were dismissed for lack
ofjurisdiction. See Hardin v. United States, No. l3-812C, slip op. (Fed. Cl. Feb. 20,2014)
("Hardin I"); Hardin v. United States, No. l4-557C, 2014 WL 4724472 (Fed. Cl. Sept. 23, 2014)
('Hadinll); Hardin v. United States, No. 15-585C,2015 WL 6437379 (Fed. Cl. Oct.22,2015)
("gerdinlll'). Thus, plaintiff is familiar with the limits of this court's jurisdiction. However, as
reflected by the allegations in his complaint, plaintiffhas chosen to disregard those limits.
        All ofthe allegations in the complaint support plaintiff s overarching contentions that he
was unjustly convicted and unlawfully incarcerated by the federal government.r He asserts that
federal govemrnent officials-including federal judges and various judiciary employees-have
conspired to deprive him ofthe due process to which he is entitled under the Fifth Amendment to
the United States Constitution ("Constitution"). Plaintiff further contends that these same federal
govemment officials have violated his rights under the First, Fourth, Sixth, Eighth, Tenth, and
Thirteenth Amendments to the Constitution. In addition, plaintiff alleges civil rights violations
under 42 U.S.C. $ 1983 and,42 U.S.C. $ 1985, and violations ofseveral provisions oftitle l8 of
the United States Code ("the federal criminal code"). The only relief that plaintiff seeks is a
declaratory judgment that (1) federal district and appellate courts are not courts established under
Article III of the Constitution and (2) he was not lawfully incarcerated. He does not request
money damages.

        Presently before the court are defendant's timely filed motion to dismiss plaintiff s
complaint for lack ofjurisdiction,2 plaintiffs motion for a default judgment, and plainti{fs
application to proceed in forma pauoeris. The motions are fully briefed, and the court deems oral
argument unnecessary.

                         II.   DEFENDANT'S MOTION TO DISMISS

                                     A. Standard of Review
        Defendant moves to dismiss plaintiff s complaint for lack ofjurisdiction pursuant to Rule
l2(b)(1) of the Rules of the united states court of Federal claims ("RCFC"). when considering
whether to dismiss a complaint for lack ofjurisdiction, a court assumes that the allegations in the
complaint are true and construes those allegations in the plaintiff s favor. Henke v. United
States, 60 F.3d 795, 797 (Fed. Cir. 1995). plaintiffs proceeding p1q se are not excused from
meeting basic jurisdictional requirements, id. at 799, even though the court holds their
complaints to "less stringent standards than formal pleadings drafted by lawyers," Haines v.
Kerner, 404 U. S. 5 19, 520-21 (1972). In other words, a plaintiff proceeding pgq se must provc,
by a preponderance ofthe evidence, that the court possesses jurisdiction. See McNutt v. Gen.



        ' Plaintiff "was convicted of multiple counts ofproducing fictitious financial obligations,
mail fraud affecting financial institutions, and mail fraud. The District Court . . . imposed
concurrent sentences of 120 months in prison and 3 years ofsupervised release on each count."
United States v. Hardin,489 F. App'x 984,985 (8th Cir.2012) (unpublished decision) (per
curiam) (footnote and citations omitted).

       '?Plaintiff incorrectly contends that defendant's motion to dismiss was not timely filed.
Defendant's response to plaintiff s complaint was due by June 29,2015. Defendant filed its
motion to dismiss, and served it on plaintiff, on June 29, 201 5. An employee of the court-not
defendant-scanned and uploaded the hard-copy motion to the court's electronic filing system on
Julv 2. 2015.

                                                -2-
Motors Acceptance Com., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch.
 Serv.,846 F.2d746,748 (Fed. Cir. 1988). Ifthe court finds that it lacks subject matrer
jurisdiction over a claim, RCFC 12(h)(3) requires the court to dismiss that claim.

                                          B. Jurisdiction

        Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause." ExparteMcCardle,74 U.S. (7 Wall.) 506,514 (1868). The parties orthe
court on its own initiative may challenge the existence ofsubject matter jurisdiction at any time.
Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

         The ability of the 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 consents to be sued.,,
United States v. Sherwood,312 U.S. 584,586 (1941). The waiver of immunity "cannot be
 implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969). 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, or an express or implied contract with
the United States. 28 U.S.C. $ la9l(a)(l) (2012). However, the Tucker Act is merely a
jurisdictional statute and "does not create any substantive right enforceable against the United
 States for money damages." United States v. Testan,424 U.S.3g2,3gS (1976); see also King,
395 U.S. at 2-3 (explaining that the jurisdiction of this court's predecessor was limited to claims
against the United States for money damages); Todd v. United States, 386 F.3d 1091, 1095 (Fed.
Cir. 2004) ("Absent a claim for presently due money damages against the United States, the
Court of Federal Claims does not have jurisdiction under the Tucker Act to entertain [the
plaintiffs'] claims."). Instead, the substantive right must appear in another source of law, such as
a "money-mandating constitutionai provision, statute or regulation that has been violated, or an
express or implied contract with the United States." Loveladies Harbor. Inc. v. United States,27
F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).

 C. Plaintiff s Complaint Must Be Dismissed Because He Does Not Seek Money Damages

        As noted above, plaintiffdoes not seek money damages; his requested relief is limited to
a declaratory judgment. The jurisdiction of the Court of Federal Claims is limited to claims for
money damages. King, 395 U.S. at 2-3; Todd,386F.3dat 1095. The courl cannot issue a
declaratory judgment in the absence of an award of money damages. See Nat'l Air Traffic
Controllers Ass'n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998) ("Although the Tucker
Act has been amended to permit the Court of Federal Claims to gant equitable relief ancillary to
claims for monetary reliefover which it has jurisdiction, there is no provision giving the Court of
Federal Claims jurisdiction to grant equitable relief when it is unrelated to a claim for monetary


                                                -3-
relief pending before the court." (citations omitted)). Accordingly, the court lacks jurisdiction to
entertain plaintiff s complaint. Defendant's motion to dismiss is therefore granted.

 D. The Court Lacks Jurisdiction to Entertain Claims Under the Constitutional Provisions
                              and Statutes Cited by Plaintiff

        Even ifplaintiff requested money damages, the court would still lack jurisdiction to
entertain his complaint. First, the Court of Federal Claims lacks jurisdiction to enterlain claims
under the First, Fourth, Sixth, Eighth, Tenth, and Thirteenth Amendments to the Constitution
because those amendments do not mandate the payment of money damages. See Trafnv v
United States,503 F.3d 1339,1340 (Fed. Cir.2007) (per curiam) ("The Court ofFederal Claims
does not have jurisdiction over claims arising under the Eighth Amendment, as the Eighth
Amendment'is not a money-mandating provision."'); Brown v. United States, 105 F.3d 621,623
(Fed. Cir. 1997) ("[T]he Fourth Amendment does not mandate the payment of money for its
violation. Because monetary damages are not available for a Fourth Amendment violation, the
Court of Federal Claims does not have jurisdiction over a such a violation." (citation omitted));
United States v. Connoll),,716 F .2d 882, 887 (Fed. Cir. 1983) ("[T]he first amendment, standing
alone, cannot be so interpreted to command the payment of money."); Duore v. United States,
229 Ct. Cl.706,706 (1981) ("[T]he fourth and sixth amendments do not in themselves obligate
the United States to pay money damages; and, therefore, we have no jurisdiction over such
claims."); Pleasant-Bey v. United States, 99 Fed. Cl.363,367 (2011) ("tTlhis court does not
have jurisdiction over claims based on either the Thirteenth Amendment or Fourteenth
Amendment because neither mandates the payment of money damages."); Oqden v. United
States, 61 Fed. Cl. 44, 47 (2004) ("Plaintiff s allegations with respect to violations ofthe Sixth,
Eighth, Ninth and Tenth Amendments are similarly outside the jurisdiction of this court because
those clauses also do not mandate monetary compensation."). Nor is the Due Process clause of
the Fifth Amendment a money-mandating source of jurisdiction. See LeBlanc v. United States,
50 F.3d 1025, 1028 (Fed. Cir. 1995).

        Second, the Court ofFederal Claims does not possess jurisdiction over civil rights claims
brought under 42 u.s.c. $ 1983 and42 u.s.c. $ 1985 "because jurisdiction over claims arising
under the Civil Rights Act resides exclusively in the district courts." Marlin v. United States, 63
Fed. Cl.475, 476(2005); accordJeffersonv. United States, 104 Fed. Cl. 81,99 (2012);
Anderson v. United States,22 Cl. Ct. 179, 1'79 n.2 (1990), aff d ,937 F.2d 623 (Fed. Cir. t 99l )
(unpublished table decision).

        Third, the Court ofFederal Claims lacks jurisdiction to entertain criminal matters, such as
claims arising under the federal criminal code or claims regarding the conduct of criminal
proceedings. See Joshua v. United States, l7 F.3d 378,379-80 (Fed. Cir. 1994) (affirming that
the Court of Federal Claims had "'no jurisdiction to adjudicate any claims whatsoever under the
federal criminal code"'); Kania v. United States, 650 F.2d 264,268 (Ct. Cl. 1981) (noting that
"the role ofthe judiciary in the high function of enforcing and policing the criminal law is
assigned to the courts of general jurisdiction and not to this court"); Schweitzer v. United States,


                                                 A
82 Fed. Cl. 592, 596 (2008) (holding that the Court of Federal Claims lacks jurisdiction over
challenges to "indictments, arrests, prosecutions, convictions, imprisonment, or parole").
Moreover, plaintiffcannot collaterally attack his conviction is this court. See Joshua, l7 F.3d at
380 ("[T]he Court ofFederal Claims does not have jurisdiction to review the decisions ofdistrict
courts or the clerks ofdistrict courts relating to proceedings before those courts."); Carter v.
United States, 228 Ct. CI.898, 900 ( 1981) (per curiam) ("If plaintiff had valid constitutional
defenses to his convictions on criminal charges, he should have asserted them on appeal in the
proper court. This is not such a court and he cannot here be heard to make a collateral attack on
his convictions under the guise of a claim for money damages.").

        Finally, although the court possesses jurisdiction to consider claims ofunjust conviction
and imprisonment under 28 U.S.C. $ 1495 (a statute not cited by plaintiff), a plaintiff raising
such a claim must allege and prove either that the conviction was reversed or set aside because he
was not guilty ofthe offense(s), or that he was pardoned due to his innocence and unjust
conviction. 28 U.S.C. $2513(a). As plaintiff has not alleged that his criminal conviction has
been reversed or set aside by another court, he cannot prevail on a claim ofunjust conviction and
imprisonment in the Court of Federal Claims.

                               E. PlaintifPs Complaint Is Frivolous

         Nothing from the foregoing discussion should surprise plaintiff. In prior rulings, the
 Court of Federal Claims has explained to plaintiff that its jurisdiction is limited to claims for
 money damages. See Hardin II, 2014 WL 4724472, at *2; Hardin I, slip op. at 2. It has also
 explained that it lacks jurisdiction to entertain claims under the First, Fourth, Sixth, Eighth, and
 Thirteenth Amendments, and the Due Process clause of the Fifth Amendment.s See Hardin III,
 2015 WL 6437379, at *4 (First, Fifth, andEighthAmendments); HardinII, 2014WL4724472,
 at *3 (First, Fourth, Fifth, Sixth, and Eighth Amendments); Hardin I, slip op. at 2 (Fifth, Sixrh,
 and Thirteenth Amendments). Further, the court has explained that it does not possess
jurisdiction to entertain claims of civil rights violations. See Hardin III, 2015 wL 643'j379, at
 *4. It has also explained that it lacks jurisdiction to entertain criminal matters. Seeid.; Hardin
 II,2014 WL 4724472, at *3; Hardin I, slip op. at 2-3. Moreover, the court has explained that it
 lacks jurisdiction to review the decisions of federal distriot courts. See Hardin III, 2015 wL
 6437379, at t3; Hardin I, slip op. at 2-3. Finally, the court has explained that it possesses
jurisdiction over a claim ofunjust conviction only if the conviction has been overtumed on the
 grounds ofinnocence or a pardon has been issued. See Hardin I, slip op. at 3.




       i   The only constitutional amendment implicated by plaintiff in his complaint but not
previously addressed by the Court of Federal Claims is the Tenth Amendment, which, by its
plain language, does not provide for the payment of money damages. See U.S. Const. amend. X
("The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.").
       When a prisoner sues the United States, the court must screen the prisoner's complaint to
identiff both cognizable claims and those claims that should    be dismissed. 28 U.S.C. $ l9l 5A,.
The court must then dismiss those claims that are frivolous, malicious, or fail to state a clatm
upon which relief can be granted. Id. $ 1915A(b). Because plaintiff filed his complaint after
being put on notice that the Court of Federal Claims lacked jurisdiction to entertain the claims
contained in his complaint, the court finds that plaintiff s complaint is frivolous pursuant to 28
u.s.c. $ 1e1sA(bxl).

         Under 28 U.S.C. $ 1915(g), also known as the three-strikes rule, ifa prisoner has filed
three or more suits or appeals that were dismissed as frivolous, malicious, or failing to state a
claim upon which reliefcan be granted, he is barred from initiating further suits or appeals
without first paying the filing fee, unless he is "under imminent danger of serious physical
injury." Plaintiff has already had one appeal dismissed as frivolous. See Hardin v. Batts, 606 F.
App'x 240 (5th Cir. 2015) (unpublished decision) (per curiam). This courr's finding that
plaintiff s complaint was frivolous is, at a minimum, plaintiff s second "strike."a

        III.   PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

         As noted above, plaintiff filed, concurrent with his complaint, an application to proceed
in forma pauperis. courts of the United states are permitted to waive the prepayment or payment
of filing fees and security under certain circumstances.s 28 U.S.C. $ 1915(aXl). plaintiffs
wishing to proceed in forma pauoeris must submit an affidavit that lists all oftheir 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. Id. Further, prisoners must file..a
certified copy ofthe 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 ofeach prison which the prisoner is or was confined." Id. g 1915(a)(2).

        Plaintiffhas substantially satisfied the requirements set forth in 28 U.S.C. g 1915(a). The
court therefore grants plaintiffls application to pr6ceed in forma paupgls and waives plaintiffs
prepayment ofthe filing fee. Notwithstanding the court's waiver, prisoners seeking to proceed in


        a The cou('s
                       cursory review ofthe dockets ofthe suits and appeals filed by plaintiffin
federal court did not reveal any other dismissals pursuant to 28 U.S.C. g l9l 5(g).

        5 While the Court of Federal
                                      Claims is not generally considered to be a,,court of the
United States" within the meaning of title 28 ofthe United States Code, the court has jurisdiction
to grant or deny applications to proceed in forma pauoeris. See 28 U.S.C. $ 2503(d) (deeming
the Court ofFederal Claims to be "a court of the United States" for the purposes of28 U.S.C.
$ 1915); see also Matthews v. United States,72 Fed. Cl. 274,277-78 (2006) (recognizing that
Congress enacted the Court ofFederal Claims Technical and Procedural Improvements Act of
1992, authoizing the court to, among other things, adjudicate applications to proceed in forma
psupgd! pursuant to 28 U.S.C. g I 915).

                                                -6-
forma pgpglg are required to pay, over time, the filing fee in full. Id. $ 1915(b). Thus, plaintiff
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 ofhis
complaint. Id. $ l9l5(bxl). Thereafter, plaintiff shall be required ro make monthly payments of
twenty percent ofthe preceding month's income credited to his account. Id. $ l915(b)(2). The
agency having custody of plaintiff shall forward payments from plaintifPs account to the clerk of
the Court ofFederal Claims each time the account balance exceeds $10 and until such time as the
filing fee is paid in full. Id.

                                       IV. CONCLUSION
        For the foregoing reasons, the court GRANTS defendant's motion to dismiss and
DISMISSES plaintifPs complaint for lack ofjurisdiction. In addition, the court finds plaintifls
complaint to be frivolous and therefore dismissal pursuant to 28 u.s.c. $ l9l5A(b)(1) is also
appropriate. Plaintiffs motion for a defaultjudgment against defendant is DENIED as moot.
And, the court GRANTS plaintiff s application to proceed in forma pggpggig, bur directs plaintiff
to pay the filing fee in full pursuant to 28 U.s.c. $ l9l50), as previously described. No costs.
The clerk shall enter judgment accordingly.

       IT IS SO ORDERED.




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