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                                                                                                                       FILED
                                                             No. 15-334C
                                                                                                                      JUL 3 0   2015
                                                    (Filed:July 30,2015)
                                                                                                                     U.S. COURT OF
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                                                                                                                    FEDERALCLAIMS


JUAN BARNES,
                                                                                            DEA Seizure of Funds During Arrest for
                                      Plaintiff,                                            Marijuana Possession; Funds Not Taken
                                                                                            for Public Use; Alleged Due Process
                                                                                            Violations; Lack of Subject Matter
                                                                                            Jurisdiction; Failure to State a Claim on
THE LINITED STATES,                                                                         Which Relief May be Granted; Dismissal
                                                                                            for Failure to Prosecute.
                                      Defendant.

******   +   ***********   :1.   :l   * * * * * * * * *'*   :l(   i( {. :t   :1.   1.   *

Juan Barnes, Cumberland, Marylan{ pro se Plaintiff.

Corrine A. Nlosi with whomwere Benjamin C. Mizer,Principal Deputy Assistant Attomey
Genera! Robert E. Kirschman, Jr., Director, and Martin F. Hockey, -/r., Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington,
D.C., for Defendant.

                                                 OPINIONAND ORDER

WHEELER, Judge.

        On March 31, 2015, pro se Plaintiff, Juan Barnes, filed a complaint in this Court
seeking recovery of money that the Drug Enforcement Agency C'DEA') seized after
finding that he was in possession of marijuana. Mr. Barnes claims that the DEA
representatives violated his due process rights by failing to warn him oftheir intentions to
keep his funds in perpetuity. On May 8, 2015 the Government filed a motion to dismiss
Mr. Barnes's complaint for lack ofsubject matter jurisdiction and for failure to state a claim
upon which relief may be granted. Mr. Bames, who is currently incarcerated at a Federal
correctional institution, failed to respond to the Government's motion and subsequently
failed to respond to the Court's show cause order.
        The Govemment maintains that Mr. Barnes's due process claim must be dismissed
for lack of subject matter jurisdiction under Rule 12(b)(1), and to the extent that his claim
may be construed as a takings claim, the Government argues that Mr. Barnes has failed to
state a claim upon which relief may be granted under Rule l2(bx6). The Court also raises,
on its own motion, dismissal of this case for failure to prosecute under Rule 4 I (b).
Although the Court is sympathetic to Mr. Barnes's pro se status and acknowledges that
there have been concerns with Mr. Barnes's receipt of mail, his failure to respond to the
Govemment's motion and failure to respond to the Court's show cause order has made it
impossible to proceed with fuither adjudication of this case.

        The Court finds that, due to the nature of Mr. Bames's claims, the case must be
 dismissed for lack of subject matter jurisdiction. While the Tucker Act provides for
jurisdiction over claims founded upon the Constitution, it does not create substantive rights
 enforceable against the United States for money damages. Therefore the Court lacks
jurisdiction to hear due process claims which are not money-mandating. The Court also
 must dismiss the case for failure to state a claim upon which relief may be granted because
 Mr. Barnes's funds were taken pusuant to criminal proceedings, not for public use which
 would entitle Mr. Bames to just compensation.

                                     Standard of Review

        When deciding a motion to dismiss for lack of subject matter jurisdiction under Rule
12(bxl), which provides that "a party may assert . . . by motion" the defense of "lack of
subject-matter jurisdiction," the Court "accepts as true all uncontroverted factual
allegations in the complaint, and construes them in the light most favorable to the plaintiff."
Estes Exp. Lines v. United States,739 F3d 689,692 (Fed. Cir. 2014). While pro se
litigants are generally held to a more lenient standard in their pleadings and in proving the
existence ofsubject matter jurisdiction, see Hughes v. Rowe,449 U.S. 5, 9 (1980), thepro
se plaintiffnonetheless has the burden ofproofto establish subject matter jurisdiction by a
preponderance of the evidence, Reynolds v. Army & Air Force Exch. Serv. ,846F.2d746,
748 (Fed. Cir. 1988); Estes Exp. Lines,739 F.3d at 692.

        For a Rule l2(bx6) motion, which provides that a party may assert by motion a
defense of"failure to state a claim upon which reliefcan be granted," plaintiffs must assert
"sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its
face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-63, 570 (200'7). A claim is plausible on its face when "the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Aschroft, 556 U.S. at 678. The Court may grant a
motion to dismiss under Rule l2(bx6) "only when it is beyond doubt that the plaintiff can
prove no set of facts in support of his claim [that] would entitle[] him to relief." Fireman
v. United States, 44 Fed. Cl. 528, 537 (1999) (quoting Ponder v. United States, 117 F.3d
549,552-53 (Fed. Cir. 1997)).

        Rule 4l(b) provides that "[i]f the plaintiff fails to prosecute or comply with these
rules or a court order, the court may dismiss on its own motion or the defendant may move
to dismiss the action or any claim against it." Rule 41(b) is a necessary tool to ensure
efficient docket management and prevent undue delays in litigation. Link v. Wabash R.R.
Co., 370 U.S. 626, 629-30 (1962). "While dismissal of a claim is a harsh action, especially
to a pro se litigant, it is justified when a party fails to pursue litigation diligently and
disregards the court's rules and show cause order." Whiting v. United States, 99 Fed. Cl.
13, 17 (2011) (citing Kadin Corp. v. United States ,782F .2d l'7 5, l7 6-77 (Fed. Cir. 1986)).

                                         Discussion

       I.     Lack of Jurisdiction

       Pursuant to the Tucker Act, 28 U.S.C. $ 1491, an action may be maintained in this
Court only if it is "founded either upon the Constitution, or any Act of Congress or any
regulation of an 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. $ l49l(a). The Tucker Act does not, however, create any substantive rights
enforceable against the United States for money damages. See United States v. Testan,
424 U.S. 392,398 (1976). Thus, a plaintiff s constitutional claim must be for money
damages, based on a "money-mandating" source of substantive law, if it is to be cognizable
under the Tucker Act. See Jan's Helicopter Serv.. Inc. v. FAA, 525 F.3d 1299, 1309 (Fed.
Cir. 2006).

     As settled law would indicate, Mr. Barnes's due process claims are not money-
mandating because alleging deprivation ofone's due process rights does not mandate that
the Government pay money damages. See Carruth v. United States , 627 F .2d 1068, I 08 I ,
224 Ct. Cl. 422, 445 (Ct. Cl. 1980) ("This court has no jurisdiction over claims based upon
the Due Process and Equal Protection guarantees of the Fifth Amendment, because these
constitutional provisions do not obligate the Federal Govemment to pay money
damages."). Because Mr. Bames's due process claims do not have a money-mandating
source, and because the Court does not have jurisdiction to adjudicate Constitutional claims
that are not money-mandating, the claims must necessarily be dismissed.

       II.    Failure to State a Claim Uoon Which Relief May Be Granted

      The Government also argues that the money taken from Mr. Bames was seized
pursuant to criminal law, not for public use, and therefore his loss cannot give rise to a
Fifth Amendment takings claim. Accordingly, the Government asks the Court to dismiss
for failure to state a claim upon which relief can be granted. See Ramos v. United States,
112 Fed. CI.79, 85-86 (2013) (dismissing plaintiffs takings claim for failure to state a
claim upon which relief can be granted when his property was seized pursuant to criminal
proceedings).

          Binding precedent establishes that property taken and held pursuant to the police
power, in accordance with criminal law, is not taken for public use for the purpose of the
Fifth Amendment's Takings Clause. Kam-Almaz v. United States, 682 F.3d 1364, 1371
(Fed. Cir. 2012). Mr. Barnes alleges that DEA representatives seized his funds in
connection to criminal proceedings, namely, his illegal possession of marijuana. Thus, Mr.
Barnes's deprivation cannot constitute a taking for which he would be entitled to just
compensation because the funds were not taken for public use, but rather in connection
with the criminal proceedings against him. See Acadia Tech.. Inc. v. United States, 458
F.3d 1327, 1331 (Fed. Cir. 2006) (finding that property seized pursuant to criminal laws
. . . [is] not'takings' for which the owner is entitled to compensation).

       II   I.   Failure to Prosecute

        Additionally, the Court, on its own motion, raises the dismissal of Mr. Barnes's
complaint for failure to prosecute under Rule 4l(b). On May 8,2015, the Government
filed a Motion to Dismiss Plaintiff s Complaint, Dkt. No. 4. Mr. Bames failed to respond
to the motion to dismiss by the Court's June 8,2015 deadline. On July 1,2015, after
waiting three additional weeks, the Court issued a Show Cause Order directing Mr. Barnes
to respond to the Govemment's motion to dismiss by July 15, 2015, Dkt. No. 5. Yet, Mr.
Barnes still did not respond to the Government's motion or the Court's show cause order.
Even if he did not receive all of the mailed filings, Mr. Bames still had an obligation to
keep the Court apprised of his correct mailing address, and to check on the status of his
case periodically. He did not perform these simple tasks.

         The Court is mindful of Mr. Barnes's pro se status and has carefully considered the
possibility that he may not be familiar with the Court's rules and procedures. Although
pro se litigants are generally afforded some leniency in procedural matters, this less
stringent standard does not permit a party to disregard the timetables set by court rules or
the show cause order issued by the Court. See Carpenter v. United States, 38 Fed. Cl.576,
578 (1997) (noting that the less stringent standard "does not allow a plaintiff to wholly
disregard the timetable set by the court's rules, messages left by the court, or a show cause
order"); see also Brown v. United States,22 Cl. Cr. 211,213 (1990) ("[t]he court is
sensitive to the special hardships of pro se plaintiffs, however, 'latitude' does not equal
'free rein' and there comes a point where the court must say enough is enough."). The July
 I , 201 5 show cause order explicitly warned Mr. Bames that failure to respond to the order
would result in the case being dismissed. Mr. Barnes has failed to take the required steps
necessary for further adjudication of his case in this Court.

                                       Conclusion

       Based upon the foregoing, this case is DISMISSED, with prejudice, for lack of
subject matter jurisdiction (Rule l2(b)(l)), failure to state a claim upon which relief may
be granted (Rule 12(b)(6)), and failure to prosecute (Rule al@)).

      IT IS SO ORDERED.                                                  An
                                                        il,', C l"V"!r-
                                                       THOMAS C. WHEELER
                                                       Judge
