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                    llnt\t@nitr! 5tuttr @ourt of fe[rrs[ @luitul,rr'
                                                                                      No. l5-999C                                                   - 6 ?"'16
                                                                                (Filed: January 6, 2016)                                    JAN
                                                                                                                                          U.S. COURT OF
        *r!**r.:t*,********+r(*'*r('1.**{.**l.
*+ * {.* *,i<* * t                                                                                                                       FEDERAL CLAIMS
MELQUIADES MENDIOLA, JR.,                    *
                                                                                                          *   Pro Se Plaintiff; RCFC 12(b)(l);
                                           Plaintiff,                                                     t   Federal Criminal Code; Federal Tort
                                                                                                              Claims Act; 42 U.S.C. $ 1983; Sixth
                                                                                                              Amendment: Eiehth Amendment

THE TINITED STATES,

                                           Defendant.                                                     *
*,t * * * * * r. :t :t * *!,t * :l * * *   :1.   *,l( *   *,1.   **   {.,1.   *,1 * *    rr   *   *, {.   *


Melquiades Mendiola. Jr., Rosharon, TX, p1q se.

Mollie L. Finnan, United                            States Department of Justice, Washington, DC, for defendant.

                                                                              OPINION AND ORDER

SWEENEY, Judge

        On September 9,2015,plaintiff in the above-captioned case, appcaring p& se, filed a
complaint alleging assault and battery, tortue, theft, and embezzlement. That same day, plainriff
filed a motion for leave to proceed in forma pauperis ("lFP"). On September 30,2015, plaintiff
filed a motion requesting ajury trial, which was subsequently denied by this court on october l,
2015. On November 6,2015, defendant filed a motion to dismiss plaintiff s claims pursuant to
Rule 12(b)(l) of the Rules ofthe United States Court ofFederal Claims ("RCFC")' For the
reasons set forth below, thc court denies plaintiff s IFP application and grants defendant's
motion to dismiss.

                                                                                        I.    BACKGROUND

              Plaintiff is                  in Rosharon, Texas. In his complaint, plaintiff'claims
                                  a federal inmate housed
that he was abused and tortured by agents of the Federal Bureau oflnvestigation ("FBI") while
he was in state prison. Compl. L According to plaintiff. these agents \ erc attempting to get him
to tell them the location ofan audio/video recording ofa certain cocaine purchase. Id. Plaintiff
also claims that he was beaten by FBI agents while in the hospital. id. According to plaintiff,
he was treated this way because the agents wanted him to "sign 1ime" for a criminal "number"
upon which he had never been indicted or arraigned. Id. In addition, plaintiff claims that the
agents attempted to coerce his signature in an effort to cover up their embezzlement of monies
that properly belonged to him. Id. Finally, plaintiff notes that he filed a civil rights claim, under
42 U.S.C. g i983, in the United States District Court for the Southem District of Texas but that
the claim had been dismissed. Id.

                                     II.   LEGALSTANDARDS

                                           A. Pro Se Plaintiffs

        The united states court of Federal claims ("court of Federal claims") holds pleadings
ofa p5q se plaintiffto less stringent standards than pleadings filed by litigants represented by
couniel. Haines v. Kemer, 404 U.S. 519, 520 (1972). Courts have "strained ftheir] proper role
in adversary proceedings to the limit, searching . . . to see ifplaintiffhas a cause ofaction_
somewhere displayed.'; Ruderer v. United States,4l2F.2d1285,1292 (Ct. Cl. 1969). Although
a pro se plaintiff s pleadings are held to a less stringent standard, such leniency "with respect to
mere formalities does not relieve the burden to meet jurisdictional requirements." Minehan v.
united states, 75 Fed. cl. 249,253 (2007); see also Kellev v. Sec'y. U.S. Dep't of Labpr, 812
p:a f:Zg f:SO (Fed. Cir. 1987) C'tAl court may not. . . take a liberal view of that jurisdictional
requirement and set a different rule for pro se litigants only."); Bemard v. United Statqs, 59 Fed.
 C|.4g7,499 (noting that p1q se plaintiffs are not excused from satisrying jurisdictional
requirements), aff O, gA F. App'x 860 (Fed. Cir. 2004). As the Court of Federal Claims stated in
Demes v. United States, 52 Fed. C\.365 (2002), "[w]hile a court should be receptive to plq se
pt"t.ttffr -d         th"-, justice is ill-served when a jurist crosses the line from finder of fact to
advocate." Id."*irt
               at 369.

                                             B. Rule l2(bxl)

         Pursuant to Rule 12(b)(l), a party may move to dismiss a case for lack ofsubject matter
jurisdiction. When considering such a motion, the court accepts as true all undisputed factual
                                                                                           facts
 allegations made by the nonmoving party, and draws all reasonable inferences from those
in   tienonmoving putty't favor. Westlands Water Dist. v. United States' 109 Fed. Cl. 177 190      '
(2013). Whetheithe court has jwisdiction to decide the merits of a case is a threshold matter'
ige sieel Co. v. Citizens for a Aetter Env't, 523 U.S. 83,94-95 ( 1998). "Without jurisdiction the
        *"""t p....a ."t in any cause. Jurisdiction is power to declare the law, and when it
"*.t                       "ll
ceases to exiit, the only function remaining to the court is that of announcing the fact
                                                                                                and
dismissing the cause." Ex oarte McCardle, 74 U.S. (7 Wall.) 506, 514          (1868).    The  parties, or
the court iua sponte, may challenge the existence of subject matter
                                                                         jurisdiction   at anylime.
Arbureh \r Y & H Com., 546 U.S. 500,506 (2006). The            plaintiff bears  the  burden   ofproving,
by. pr"p*d*** the evidence, that the court possesses subject matter                 jurisdiction   Lujan v.
                       "f
Defe;ders of Wildlife, 504 U.S. 555, 561 (1992); McNutt v. Gen. Motors Acceptance-Corp., 298
Us. 1?8,                  Brandt v. United States, Tl0 F.3d |369, |373 (Fed' Cir' 2013); Reynolds
              eir Eo."i E*"tt. S.-., 846 F.2d 746,748 (Fed. Cir. 1988). The plaintiff cannot rely
u. A.-n't'8X'936}
 ..1"1y."               in the cornplaint, but must bring forth relevant, adequate proofto establish
            "tl"g"tr"*
jurisdiction.   see McNutt, 29S a.S. at 189. Ultimately, if the court finds that it lacks subject
 matter jurisdiction, then it must dismiss the claim. Matthews v. United States,72
                                                                                            Fed, Cl..274,
 2',78 (2006);see also RCFC 12(h)(3) ("Ifthe court determines at any time
                                                                                  that it lacks subject-
 matter iurisdiction. the court must dismiss the action.").
                                       C. The Tucker Act

        The ability of the Court ofFederal Claims to entertain suits against the United States rs
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). A 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 governing thejurisdiction of this court, waives 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. 28 U.S.C.
$ 1491 (2012). However, the Tucker Act is merely ajurisdictional statute and "does not create
any substantive right enforceable against the United States for money damages." United States
v. Testan, 424 U.S. 392, 398 ( 1976). Instead, the substantive right must appear 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." Loveladies Harbor. Inc. v.
United States, 27 F .3d 1545, 1 554 (Fed. Cir. 1994) (en banc).

                        D. Applications to Proceed In Forma Pauperis

        Pursuant to 28 U.S.C. $ 1915, courts of the United States are permitted to waive filing
fees and security under certain circumstances. See 28 U.S.C. $ 1915(aX1); see also Hayes v.
United States,71 Fed. Cl. 366,366-67 (2006) (concluding that 28 U.S.C. $ 1915(a)(1) applies to
both prisoners and nonprisoners alike). Specifically, the statute provides as follows:

               (a)(l)  Subject to subsection (b), any court ofthe United States
               may authorize the commencement, prosecution or defense of any
               suit, action or proceeding, civil or criminal, or appeal therein,
               without prepayment of fees or security therefor, by a person who
               submits an affidavit that includes a statement of all assets such
               prisoner possesses that the person is unable to pay such fees or
               give security therefor. Such affidavit shall state the nature ofthe
               action, defense or appeal and affianl's belief that the person is
               entitled to redress.

               (2) A prisoner seeking to bring a civil action or appeal ajudgment
               in a civil action or proceeding without prepayment of fees or
               security therefor, in addition to filing the affidavit filed under
               paragraph (1), shall submit a certified copy of the trust fund
               account statement (or institutional equivalent) for the prisoner for
               the 6-month period immediately preceding the filing of the
               complaint or notice of appeal, obtained from the appropriate
               official ofeach prison at which the prisoner is or was confined.

28 U.s.c. $ 191s(a)(1)-(2).
                                            II.    DISCUSSION

                                 A. Defendant's Rule l2(b)(1) Motion
          In its Rule l2(bXl ) motion, defendant contends plaintiff s "complaint fails to implicate
 any money-mandating constitutional provision, Federal statute, Federal regulation, or contract
 with the Government that would support this Court's jurisdiction" and that instead, "the
 complaint alleges only tort and criminal claims, which are not within this Court's jurisdiction."
 Def.'s. Mot. 3-4. In response, plaintiff contends that he is not asserting claims of
 "embezzlement, theft, assault and or battery," because he appreciates that the court lacks
jurisdiction over such claims. Pl.'s Opp'n    l.  Rather, plaintiff argues that he is seeking "damages
 for torture and brutally beating by the F.B.I.," and that "[i]t is a claim against a U.S. agency,"
which plaintiff characterizes as "a constitutional violation tort claim." Id.

         Despite plaintiff s attempts to characterize his claims as falling within this court's
jurisdiction, they do not. First, to the extent plaintiff seeks relief in this court based on alleged
 criminal conduct, this court lacks jurisdiction. Simply stated, this "'court has no jurisdiction to
 adjudicate any claims whatsoever under the federal criminal code.     "'   Joshua v. United States, I 7
 F.3d 378, 379 (Fed. Cir. I 994) (quoting the decision of the Court of Federal Claims); accord
 Jones v. United States,440 F. App'x 916,918 (Fed. Cir. 2011) (unpublished decision) ("As a
threshold matter, the [Court ofFederal Claims] conectly stated that it has no jurisdiction over
 criminal matters generally."). Thus, with respect to plaintiff s claims of assault, battery, torture,
theft, and embezzlement, this court lacks jurisdiction. See United States v. Sumrall , 690 F.3d 42,
44 (lst Cir. 2012) (discussing the crimes of assault and battery); McCulloueh v. United States,
 76 Fed. Cl. 1, 4 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir. 2007) (discussing the
 crime oftorture); Kine v. Nazelrod, 43 F.3d 663,666 (Fed. Cir. 1994) (discussing the crime of
theft); Reid v. United States, 95 Fed. Cl. 243, 249 (2010) (holding, inter alia, that assault and
 embezzlement are crimes outside of this court's jurisdiction).

        Second, to the extent plaintiff seeks relief in this court based on alleged tortious conduct,
this court again lacks jurisdiction. See Flowers v. United States, 80 Fed. Cl. 201, 213 (2008)
(noting that this "'court lacks jurisdiction ifthe essence ofthe claim lies in tort"' (quoting
Cottrell v. United States, 42 Fed. Cl. 144, 149 ( 1998)). The Federal Tort Claims Act ("FTCA")
grants the United States district courts exclusive jurisdiction to hear tort claims against the
United States and, therefore, the proper forum for federal tort claims is a United States district
court. See 28 U.S.C. $ 13a6(b)(1); see also Brown v. United States,74Fed. CL.546,549 (2006)
("[T]he FTCA grants exclusive jurisdiction to the United States federal district courts regarding
tort claims against the United States Govemment."). Thus, with respect to plaintiff s claims of
assault and battery in the context oia civil suit, this court lacks jurisdiction. See Burman v.
United States, 75 Fed. Cl. 727 ,729 (2007) (characterizing piaintiffs claims of assault and
battery as torts falling outside ofthis court's jurisdiction).

         Third, to the extent plaintiffhas made out a civil rights claim under 42 U.S.C. $ 1983,
there is no need for this court to transfer his claim since he has already liled such a claim in the
United States District Court for the Southern District of Texas, Brownsville Division. See
Mendiola v. Cameron Ctv. Dist. Att'v's Office, No. 1 :13-cv-236 (S.D. Tex.). In that case, all of
plaintiff s claims were dismissed and plaintiff has appealed the dismissal to the United States
Court of Appeals for the Fifth Circuit. See Mendiola v. Cameron Cty. Dist. Att'y's Office, No.
I : l5-cv-40014 (5th Cir.).


       Finally, to the extent that plaintiff seeks relief exclusively under the Sixth or Eighth
Amendmenls to the United States Constitution,r these claims also fall short. As noted above,
although the Tucker Act provides ior a waiver of sovereign immunity ibr claims founded upon
the Constitution, the claims must also be based on money-mandating provisions' See 28 U.S.C.
$ 1491. Since no money-mandating provisions are found in either the Sixth or Eighth
Amendments, this court lacks jurisdiction. See Dupre v. United States,229 Ct.Cl.'706'706
(1981) (Sixth Amendment); Alston-Bullock v. United States,l22Fed. Cl.38,44 (2015) (Sixth
Amendment); Seals-Bev v. United States, 116 Fed. Cl. 120, 122 (2014) (Sixth Amendment);
Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (per curiam) (Eighth
Amendment); Hardin v. United States, 123 Fed. CL.667,671(2015) (Eighth Amendment)

                                      B. Plaintiff s IFP Motion

         As noted above, plaintiff filed, concurrent with his complaint, an IFP application.2 In
accordance with the statute, plaintiff submitted an affrdavit that 1) listed all ofhis assets; and 2)
averred that he is unable to pay the fees or give the security. Furthermore, although not stated in
his affidavit, the nature of plaintiff s action and his belief of entitlement to redress is stated in his
complaint. See Compl.; see also Fiebelkom v. United States,77 Fed Cl. 59, 63 (2007) ("Given
the linient standards for p1q se plaintiffs . . . the court finds that stating the nature of plaintiffs
action in a complaint, filed simultaneously with the Application, fulfitls the requirements of the

' The Sixth Amendment provides       as   follows:

                In all criminal prosecutions, the accused shall enjoy the right to a
                speedy and public trial, by an impartial jury of the State and
                district wherein the crime shall have been committed, which
                district shall have been previously ascertained by law, and to be
                informed ofthe nature and cause of the accusation; to be
                confronted with the witnesses against him; to have compulsory
                process for obtaining witnesses in his favor, and to have the
                Assistance of Counsel for his defence [sic].

U.S. Const. amend.    VI.   The Eighth Amendment provides as follows:

                Excessive bail shall not be required, nor excessive fines imposed'
                nor crucl and unusual punishmcnts inflicted.

U.S. Const. amend. VIIL

2 The application plaintiff submitted, captioned "Application to Proceed In Forma Pauperis," is
actually the form ernployed by the federal district courts in Texas, rather than the form utilized
by this court.
statute."); Haves v. United States, 7l Fed. Cl.366,369 (2006) (considering not only the
statements in plaintiff s IFP application but also those in his complaint when determining
whether he met the requirements ofSection 1915(a)(1)). Thus, plaintiffhas satisfied the
requirements of Section I 91 s(aXl).

        Plaintiff has not, however, satisfied the requirements of Section l9l5(a)(2). Specifically,
plaintiff failed to submit a certified copy ofhis prisoner trust fund account statement for the six
months prior to the filing of his complaint. Therefore, the court must deny his IFP application
and require payment in full. See Resendez v. United States, 96 Fed. Cl.283,286 (2010)
(denying prisoner's IFP application for failure to submit a trust fund account statement); see also
Johnson v. United States,79 Fed. CL.769,772 (2008) (denying prisoner's IFP motion for failure
to submit an adequate trust fund account statement in that the statement was not certified and did
not cover the requisite six-month period).

                                           III.   CONCLUSION

         In sum, the court GRANTS defendant's motion to dismiss and DISMISSES plaintiff s
 complaint for lack ofjurisdiction pursuant to RCFC I 2(bX I ). In addition, the court DENIES
plaintiff s IFP application; plaintiff shall pay the filing fee in full. The clerk is directed to enter
judgment accordingly and shall not award costs.

        IT IS SO ORDERED,
