                                             INA
       3Jn tbe mtniteb ~tates (!Court of jfeberal QCiaitns
                                        No. 17-976C
                                   (Filed July 28, 2017)
                                 NOT FOR PUBLICATION

*****•k•k*****************
                                         *
                                         *                           FILED
KENNETH GARNER,                          *
                                         *                         JUL 2 8 2017
                    Plaintiff,           *
                                                                  U.S. COURT OF
             v.                          *                       FEDERAL CL.AIMS
                                         *
THE UNITED STATES,                       *
                                         *
                    Defendant.           *
                                         *
************************


                                        ORDER

        On July 19, 2017, the court received a complaint submitted by Kenneth
Garner, who is a prisoner at Fairton Correctional Institution in Fairton, New
J ersey, proceeding prose. After carefully reviewing the complaint, the Court finds
t h at Mr. Garner plainly failed to state a claim within this court's subject-matter
jurisdiction . This court only has jurisdiction under the Tucker Act over cases based
on the alleged existence of a contract with the federal government or on an alleged
violation by t he federal government of a law or constitutional provision mandating
the payment of money. 28 U.S.C. § 1491(a)(l); see also Total Med. Mgmt ., Inc. v.
United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997) (holding that a plaintiff must
plead the elements of a valid contract in order to establish jurisdiction based on a
contract with the United States); United States v. Testan, 424 U .S . 392, 398 (1976)
(noting that the Tucker Act confers jurisdiction only where the federal statute
allegedly violated confers "a substantive right to recover money damages from the
United States"); Contreras v. United States, 64 Fed. Cl. 583, 588 (2005) (holding
that this court's jurisd~ction "must be based on a law or regulation that either
entitles the plaintiff to a payment of money from the government, or places a duty
upon the government, the breach of which gives the plaintiff a money damages
remedy"). The Tucker Act expressly limits our jurisdiction to "cases not sounding in
tort." 28 U.S.C. § 1491(a)( l); see also Sellers v. United States, 110 Fed. Cl. 62, 66
(2013).


                                                           7017 1450 ODDO 1346 3059
       Subject-matter jurisdiction can be challenged by the parties at any time, or
by the court sua sponte. Folden u. United States, 379 F .3d 1344, 1354 (Fed. Cir.
2004). Pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal
Claims (RCFC), "[i]f the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action." When a court undertakes this
determination, "the allegations stated in the complaint are taken as true and
jurisdiction is decided on the face of the pleadings." Folden, 379 F.3d at 1354.

        Mister Garner's complaint appears to be that the prison negligently placed a
dangerous inmate into a solitary confinement cell with Mr. Garner, without
searching the other inmate, and that inmate injured Mr. Garner . Compl. iii! 3-4.
Plaintiff has not identified a money mandating statute or a contract that would
place his claim within our jurisdiction. His claims of negligence and intentional
infliction of emotional distress appear to fall under the Federal Tort Claims Act.
See 28 U.S.C. §§ 2671-75. Because negligen ce claims and claims for intentional
infliction of emotional distress are claims sounding in tort, our Court does not have
jurisdiction to hear such claims. See O'Connor u. United States, 355 Fed. Appx. 412,
413 (Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(l); Rich's Mushroom Serus., Inc. u.
United States, 521 F .3d 1338, 1343 (Fed. Cir. 2008)) (holding that negligence is a
tort claim over which the Court of Federal Claims does not have jurisdiction);
McKenzie u. United States, 524 Fed. Appx. 636, 638 (Fed. Cir. 2013) (citing Prosser
and Keeton on the Law of Torts§ 131 (W. Page Keeton gen. ed., 5th ed. 1984))
("intentional infliction of emotional distress [is a] textbook exampleO of [a] causeO of
action that sound[s] in tort" over which the Court of Federal Claims lacks
jurisdiction). Thus, jurisdiction would lie in the United States District Court of New
Jersey, not in this Court. See 28 U.S.C. § 1346(b)(l); McKenzie u. United States, 524
Fed. Appx. at 638 (citing United States u. Muniz, 374 U.S. 150, 164-65 (1963)).

       For the foregoing reasons, plaintiff's complaint is DISMISSED as beyond
our court's jurisdiction pursuant to RCFC 12(h)(3). As no filing fee h as been paid,
the Court does not find it appropriate to transfer the case to the district court. But
given plaintiff's confusion over our jurisdiction, his prose status, and the minimal
resources involved in reviewing the complaint, Mr. Garner is relieved of the
obligation to pay the filing fee. The Clerk shall close the case.

IT IS SO ORDERED.




                                         -2 -
