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                                                                                       No. 15-14 C
                                                                                  Filed: August 6, 2015                           FILED
                                                                                  TO BE PUBLISHED
* * * *!,t *   *,1.   **   + :t    * *,* *,*,t *'1. :* *,1' *,t * *    )*   ********            *                               AUG   - 6 2015
                                                                                                                                U.S. COURT OF
VICTOR FOURSTAR,                                                                                                               FEDERALCLAIMS
                                                                                                       Jurisdiction,
               Plainliff, pro se,                                                                          28 U.S.C. $ 1491;
                                                                                                       Motion To Dismiss,
                                                                                                           RCFC 12(bX1);
                                                                                                       Pro Se,
THE LTNITED STATES,                                                                                    "Three Strikes" Rule,
                                                                                                           28 U.S.C. $ 191s.
               Def'endant.

***   :i   *******           :1.   :t   ***   rr   * * * * * * * {' * * * *   +   * * * * *,r   *

Victor Fourstar, pro                                se.


Melissa Baker, United States Department of Justice, Civil Division, Washington, D.C., for the
Govemment.

                                                   MEMORANDUM OPINION AND FINAL ORDER

I.             RELEVANTFACTUALBACKGROUND.'

       On October 30. 2002, Victor Fourstar was convicted of violating 18 U.S.C. $$ I I 53(a)'z
 and224l3 by the United states Districr court for the District of Montana. compl. !f I . on February

                I The facts discussed herein were derived from the January 6, 2015 Complaint                                    ("Compl'")
and the March 9, 2015 Amended Complaint                                                         ("Am. Compl.").
               2
                      Section I 153(a) provides:

               Any Indian who commits against the person or property of another Indian or other
               person any of the following offenses, . . . shall be subject to the same law and
               penalties as all other persons committing any of the above offenses, within the
               exclusive jurisdiction of the United States.

 18U.S.c.$lls3(a).
                3
                      Section 2241 provides:

                Whoever, in the special maritime and tenitorial jurisdiction of the United States or
                in a Federal prison, or in any prison, institution, or facility in which persons are
27,2003, Mr. Fourstar was sentenced to 188 months' imprisonment and five years' supervised
release. Compl. tl L On January 30, 2004, the United States Court ofAppeals for the Ninth Circuit
affirmed Mr. Fourstar's conviction. See United States v. Fourstar,8T F. App'x 62 (9th Cir.2004).

       Thereafter, Mr. Fourstar filed at least six petitions for a writ of habeas corpus in various
venues. See Fourstar v. Martinez,541 F. App'x 494 (5th Cir. 2013) (affirming denial of writ);
Fourstar v. Copenhaver,l4-CV- 1456 (E.D. Cal. Sept. 18, 2014); Fourstar v. llalton,l3-CY -1122
(S.D.  Ill. Oct. 31, 2013); Fourstar v. Farley, l2-CV-124 (E.D. Ky. Oct. 30, 2012);
Fourstar v. Kelly,l2-CY -3671 Of .D. Ga. Oct. 19,2012); Fourstar v. United Stotes,05-Cv-61 (D
Mont. June 7,2005); Fourstar v. Outlnv,07 -CY -1 1 (E.D. Tex. Jan. 8,2001).

        Mr. Fourstar also unsuccessfully petitioned for certificates of innocence from the United
States Court of Appeals for the Sixth Circuit, Seventh Circuit, and Ninth Circuit. Compl' at p. 3.0

      As of February 17 , 2015, Mr. Fourstar has continued to assert his innocence in other
venues. Am. Compl. at p. 2.

II,    RELEVANTPROCEDURALHISTORY,

       On January 6,2015, Mr. Fourstar  ("Plaintiff') filed a Complaint ("Compl.") in the Ilnited
States Court of Federal Claims, seeking $675,000 for "wrongful arrest and wron-gful
imprisonment." That same day, Plaintiff also fit.d u Motion To Proceed 1n Forma Pauperis.5

       On February 10, 2015, the Govemment filed a Motion To Dismiss ("Gov't 2l10/15 MoI'")'
pursuant to Rule 12(b)(1) ofthe Rules ofthe United States Court of Federal Claims ("RCFC").

      On February 26,2015, Plaintiff filed a Motion To Amend Pleadings that the court granted
on March 9,2015.

        On March 9,2015, Plaintiff filed an Amended Complaint           ("Am. Compl.").


        held in custody by direction ofor pursuant to a contract or agreement with the head
        of any Federal department or agency, knowingly causes another person to engage
        in a sexual act-
        (l) by using force against that other person; or
        (2) by threatening or placing that other person in fear that any person will be
        subjected to death, serious bodily injury, or kidnapping;
        or attempts to do so, shall be fined under this title, imprisoned for any term ofyears
        or life, or both.

 l8 U.S.C.    $   224i(a).

        a
         Some portions ofthe January 6, 2015 have paragraph numbers; others do            not. For those
portions not within an enumerated paragraph, the court refers to the page number.

        5
            Plaintifl   s January 6, 201 5   Motion To Proceed /n Forma Pauperis is granted'
       On March 23,2015, the Govemment filed a Motion To Dismiss ("Gov't 3/23115 Mot."),
pursuant to RCFC l2(b)(1).

      On May 1,2015, Plaintiff filed a Motion For Preliminary Injunction, Motion For
Temporary Restraining Order, And Motion For Appointment Of United States Attomey. ("P1.
Mot.") On May 7,2015, the Govemment filed a Response ("Gov't 517115 Resp."). On June 23,
2015, Plaintiff filed a Reply ("P1. Reply").

     On May 7, 2015, Plaintiff filed a Motion To Strike The Govemment's Motion To Dismiss.
On May 11, 2015, the Government filed a Response ("Gov't 5/l l/15 Resp.").

        On June 16. 2015, Plaintiff filed a Motion For Leave To File Second Amended Complaint,
Motion To Certifu Class, And Motion For Injunction, Intervention, And Restraining Order. On
June 19, 2015, the Govemment filed a Response ("Gov't 6/19/i5 Resp.").

       On July 28, 2015, Plaintiff filed a Motion For Leave To File Second Motion For
Preliminary Injunction And Motion For Restraining Order. That same day, Plaintiff also filed a
Motion For Leave To File Third Motion To Amend complaint and         a   Motion To Appoint counsel.

III.    DISCUSSION,

        A.      Jurisdiction.

         The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. $ 1491 , "to render judgment upon any claim against the United States 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. $ l491(a)(1). The Tucker Act, however, is "a
jurisdictional statute; it does not create any substantive right enforceable against the United States
1o.111on"y damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court of
 Federal Claimsl whenever the substantive right exists." United Slqtes v. Teslan,424 U.S.392,
 398 (l 976).

        To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an
independent contractual relationship, Constitutional provision, federal statute, and/or executive
ageniy regulation that provides a substantive right to money damages. See Todd v. United Stales,
386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to
identify a substantive right for money damages against the United States separate from the Tucker
Act[.]"); see also Fisher v. United States, 402 F .3d 116'7 , 1172 (Fed' Cir. 2005) (en banc) ("The
TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidentifyaseparate
 source of substantive law that creates the right to money damages. . . . [T]hat source must be
 .money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive
 law that he relies upon "can fairly be interpreted as mandating compensation by the Federal
 Government[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing
jurisdiction by a preponderance ofthe evidence. See Reynolds v. Army & Air Force Exch. Serv.,
 846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
        Moreover, "[t]he United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim for damages by any person unjustly convicted ofan offense against the
 United States and imprisoned." 28 U.S.C. $ 1495.

       B.      Standard Of Review For Pro Se Litigants.

        Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants
represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (i972) (holding thal pro se
complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). This court traditionally examines the record "to see if [apro se]
plaintiff has a cause of action somewhere displayed." Ruderer v. United States' 412F.2d 1285'
 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs
complaint, the court "does not excuse [a complaint's] failures." Henke v. United States, 60 F .3d
795,799 (Fed. Cir. 1995).

        C.     Standards For Motion To Dismiss Pursuant RCFC 12(bxl)'

        A challenge to the United States Court of Federal Claims' "general power to adjudicate in
specific areas of substantive law .         . is properly raised by a [Rule] l2(b)(l) motion[.]"
Palmer v. tJnited States,l68 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every
defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But
a party may assert the following defenses by motion: (1) lack of jurisdiction over the subiect
matter[.]"). When considering whether to dismiss an action for lack of subject matter judsdiction,
the court is "obligated to assume all factual allegations ofthe complaint to be true and to draw all
reasonable inferences in plaintiff s favor." Henke,60F'3dat79'7.

        D.      The Court's Resolution Of The Government's March 23' 2015 Motion To
                Dismiss.

                7.     Pro Se Considerations.

         The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.
See Estelle v. Gamble,429IJ.S.97,106 (197 6) (holding that the "pro se document is to be liberally
construed"). B-$, pro se plaintiffs must still "comply with the applicable rules of procedural and
substantive lavt|'  Walshv. United Slates,3 Cl. Ct. 539, 541 (1983). Nevertheless, the court is not
at liberty to excuse a complaint's failures. See Henke,60F.3dat799'

       Here, the Government argues that the court should not consider the facts alleged in the
January 6, 2015 Complaint. Gov't3123115 Mot. at 4-5. But, because Plaintiff ispro se,o the court

        6
            PlaintifT requests appointment of counsel. Am. Compl. at p. 2 ("[Plaintiffl requests the
 appointment ofcounsel in light of complexity ofissues and likeliness ofsuccess and in light ofhis
 iniUitity to access the rules of this court."). But, "the right to counsel [in civil proceedings] is
 highly circumscribed, and has been authorized in exceedingly restricted circumstances[.]"
  pitst v. Shinseki, 700 F.3d 12'19,1283 (Fed. Cir. 2012). To the extent that Plaintiffseeks counsel,
 pursuant to 28 U. S.C. $ 191 5(e), that statute provides that "[t]he court may request an attomey to
 i"p."."nt any person unable to afford counsel." 28 U.S.C. g l9l5(e)(l) (emphasis added). To
will consider the factual allegations from the March 9,2015 Amended Complaint,             as   well   as the
January 6, 201 5 Complaint.

                    2.      The Merits.

        The court has jurisdiction "to render judgment upon any claim for damages by any person
unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. S 1495.
But, Section 2513(a) further imposes several limitations:

       Any person suing under section 1495 of this title must allege and prove that:

       (   1   ) His conviction has been reversed or set aside on the ground that he is not guilty
                 ofthe offense of which he was convicted, or on new trial or rehearing he was
                 fbund not guilty ofsuch offense, as appears from the record or ceftificate ofthe
                court setting aside or reversing suoh conviction, or that he has been pardoned
                upon the stated ground of innocence and unjust conviction and

       (2) He did not commit any ofthe acts charged or his acts, deeds, or omissions with
           such charge constituted no oflense against the United States, or any State,
           Tenitory or the District of Columbia, and he did not by misconduct or neglect
           cause or bring about his own prosecution.

28 U.S.C. $ 2513(a).

         In this case, neither the January 6,2015 Complaint nor the March 9,2015 Amended
Complaint "allege[s] or prove[s]" any ofthe statutory requirements, i.e., that Plaintiff received a
certificate of innocence or was "pardoned on upon the stated ground of innocence" and that "[h]e
did not commit any of the acts charged." 28 U.S.C. $ 2513(a). Although the January 6, 2015
Complaint and March 9, 2015 Amended Complaint allege that Plaintiff is continuing to assert
innocence in different venues, neither pleading alleges facts that would satisry Section 2513.

IV.     CONCLUSION.

       For the reasons discussed herein, the Government's March 23, 2015 Motion To Dismiss is
granted. The Clerk of Court is directed to dismiss Plaintiff s March 9, 2015 Amended Complaint.
As such, all remaining pending motions in this case are denied as moot.




warrant appointment of counsel in civil cases, however, Plaintiff must demonstrate "extreme
hardship" and ,'exrraordinary circumstances." Ilashington v. united states,93 Fed. c1.706,709
(2010). Although the court recognizes its duty to ensure that p/o se plaintiffs are treated fairly,
this case does not meet that standard. See ld (determining that a complaint against the United
States Army for $900,000 in damages did not meet the "extraordinary circumstances" standard).
As such. Plaintiff s request for appointment of counsel is denied.
        Moreover, because Plaintiff has filed at least four other lawsuits that were dismissed as
frivolous,T Plaintiff is prohibited from filing any claim inthe United States Court of Federal Claims
under Section 1915. See 28U.S.C. $ 1915(g) ("ln no event shall a prisoner bring acivil action or
appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in
a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the prisoner is under imminent
danger ofserious physical injury."); see also Fourstar v. Garden City Grp., No. 15-mc-76,2015
WL 301217 , at * 1 (D.D.C. Ian,22,2015) ("The plaintiff has accumulated at least three strikes.").


    IT IS SO ORDERED.



                                                              sus




        1
              Fourstar v. Costell,No.14-cv-957,2014 WL 7005105, at *l (S.D. Ill. Sept' 29,2014)
            See
("The Court determined that Plaintiffhad, in fact, on at least thee prior occasions brought a civil
rights case that was dismissed on the grounds that it was frivolous, malicious, or failed to state a
                                                                       *4
claim."); Fourstar v. Murlak,No. CV 07 -5892,2010 WL 2163980, at (C.D' Cal' Apr' 26' 2010)
(frivolousness recommendation of magistrate jud ge); Fourstar v. Outlaw,283 F. App'x 209 (5th
Cir. 2008) (dismissing appeal as frivolous); Fourstar v. Zemyan,08-CV-50 (D. Mont. Aug. 26'
2008) (adopting frivolousness recommendation of magistrate judge).
