           3Jn tbe Wniteb ~tates
                                       ORIGINAL
                                         QCourt of eberal QClaitns
                                                              jf
                                           No. 16-1424C
                                      Filed December 1, 2016                       FILED
                                     NOT FOR PUBLICATION
                                                                                 DEC - 1 2016
                                               )
                                                                                U.S. COURT OF
 WILLIAM A. TOWNSEND,                          )                               FEDERAL CLAIMS
                                               )
                        Plaintiff,             )
                                               )      Pro Se; Rule 12(h)(3), Dismissal for Lack
 v.                                            )      of Subject-Matter Jurisdiction; 28 U.S.C.
                                               )      § 2254; 42 U.S.C. § 1983; 28 U.S .C.
 THE UNITED STATES,                            )      § 1631.
                                               )
                        Defendant.             )
- - -- - -- - -- - - - - - )
       William A. Townsend, Indiantown, FL, plaintiff prose.

       Stephen Charles Hough, Trial Attorney, L. Misha Preheim, Assistant Director, Robert E.
Kirschman, Jr., Director and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Depruiment of Justice, Washington,
DC, for defendant.

                         MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff pro se, William A. Townsend, brought this action challenging the conditions of
his incarceration in connection with his criminal conviction in the State of Florida. For the
reasons explained more fully below, the Court does not possess subject-matter jurisdiction to
consider plaintiffs claim. And so, the Court DISMISSES the complaint for lack of
jurisdiction, pursuant to Rule l 2(h)(3) of the Rules of the United States Court of Federal
Claims ("RCFC").
11.     FACTUAL AND PROCEDURAL BACKGROUND 1
        A. Factual Background

        Plaintiff pro se, William A. Townsend, commenced this action on October 21, 2016. See
generally Campi. Plaintiff is currently incarcerated at the Martin Correctional Institution located
in Indiantown, Florida, in connection with his criminal conviction for first degree murder and
other offenses under Florida state law. See Sentencing Report, State of Florida v. Townsend, No.
97-7241 (Cir. Ct. Fla. Nov. 17, 1999).

        Plaintiffs complaint is difficult to follow. See generally Campi. But, it appears that the
gravamen of plaintiffs complaint is a challenge to his criminal conviction and to the conditions
of his incarceration. 2 Id. In the complaint, plaintiff alleges that certain prison officials or
inmates have interfered with the receipt of his mail and infringed upon his First Amendment
rights. Id. at 1. Plaintiff also alleges that, among other things, he "is being held against [his]
Will." [sic] Id.

        In this regard, plaintiff cites 28 U.S.C. § 2254-the federal statute that permits a prisoner
in custody pursuant to a state court judgment to seek relief in federal court by petitioning for a
writ of habeas corpus. Id. at 4. Plaintiff also points to the federal civil rights statute-42 U.S.C §
1983-as another legal basis for his claim. Id.

        Prior to commencing this action, plaintiff had filed several cases seeking to challenge
various aspects of his conviction and sentence to incarceration in the federal courts. On October
10, 2014, plaintiff filed a case in this Court in which he alleged that certain Florida Department
of Corrections employees had committed hate crimes against him and interfered with his mail.
See Complaint, Townsend v. United States, No. 14-976 (Fed. Cl. Oct. 10, 2014). The Court
dismissed that matter on March 11, 2015. See Order of Dismissal, Townsend v. United States,

1
  The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint
("Comp!.") and comi records that pertain to plaintiffs previous litigation in the federal courts.
2
  In 1999, a Florida jury convicted Mr. Townsend of murder in the first degree and felony possession of a
firearm. See Sentencing Repoti, State of Florida v. Townsend, No. 97-7241 (Cir. Ct. Fla. Nov. 17, 1999).
Mr. Townsend was sentenced to life without parole. Id. The Florida Third District Court of Appeal
affirmed his conviction in 2001. See Mandate, State ofFlorida v. Townsend, No. 97-7241 (Cir. Ct. Fla.
Jul. 16, 2001).



                                                     2
No. 14-976 (Fed. Cl. Mar. 11, 2015). On June 7, 2012, Mr. Townsend filed a civil rights case in
the United States District Court for the Northern District of Florida in which he also alleged,
among other things, that various Florida Department of C01Tections employees committed hate
crimes against him and interfered with his mail. See Complaint, Townsend v. Palmer, No. 12-
176 (N.D. Fla. Jun. 7, 2012).

         In addition, on September 4, 2014, Mr. Townsend filed a writ of mandamus in the United
States District Court for the Middle District of Florida, challenging, among other things, the
conditions of his incarceration at several different institutions over the past several years. See
Writ of Mandamus, Townsend v. Secy., Dept. of Corr., No. 14-1065 (M.D. Fla. Sep. 4, 2014).
Lastly, on November 4, 2014, Mr. Townsend filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of Florida, challenging the constitutionality
of his criminal conviction and sentence to incarceration. See Writ of Habeas Corpus, Townsend
v. Secy., Fla. Dept. of Corr., No. 14-24126 (S.D. Fla. Nov. 4, 2014); Report and
Recommendations, Townsend v. Secy., Fla. Dept. of Corr., No. 14-24126 (S.D. Fla. Nov. 10,
2014).
         B. Procedural Background
         Plaintiff filed the complaint in this matter on October 21, 2016. See generally Comp!.
On November 21, 2016, the government filed a motion to dismiss the complaint for lack of
subject-matter jurisdiction, pursuant to RCFC 12(b)(l). See generally Def. Mot.3

III.     STANDARDS OF REVIEW
         A. Pro Se Litigants

         Plaintiff is proceeding in this matter prose, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x 919,
925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501F.3d1354, 1356 (Fed.
Cir. 2007)).


3
 Because the Comt has dete1mined sua sponte that it does not possess subject-matter jurisdiction to
consider plaintiff's claims, the Court does not address the matters raised in the government's motion to
dismiss and dismisses this matter pursuant to RCFC l 2(h)(3).




                                                    3
        When determining whether a complaint filed by a prose plaintiff is sufficient to survive a
motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to
plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(holding that pro se complaints, "however inaiifully pleaded," are held to "less stringent
standards than formal pleadings drafted by lawyers."); Matthews v. United States, 750 F.3d 1320,
1322 (Fed. Cir. 2014). But, there "is no duty on the part of the trial court to create a claim which
[the plaintiff] has not spelled out in his pleading." Lengen v. United States, 100 Fed. Cl. 317,
328 (2011) (brackets existing; citations omitted). And so, while "a prose plaintiff is held to a
less stringent standard than that of a plaintiff represented by an attorney, ... the pro se plaintiff,
nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the
evidence." Riles v. United States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States,
303 F.3d 1357, 1359 (Fed. Cir. 2002)). Given this, the Court may excuse ainbiguities, but not
defects, in the complaint. See Colbert v. United States, 617 F. App'x 981, 983 (Fed. Cir. 2015);
see also De mes v. United States, 52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded prose
litigants with respect to mere formalities does not relieve them of jurisdictional requirements.")
(citation omitted).

       B.      Jurisdiction And RCFC 12(h)(3)

       It is well established that this Court's subject-matter jurisdiction must be established
before it addresses the merits of a claim. Plains Comm. Bank v. Long Family Land & Cattle Co.,
554 U.S. 316, 324 (2008) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89
(1998) (holding that subject-matter jurisdiction is "a threshold question that must be resolved ...
before proceeding to the merits")). In this regard, the United States Court of Federal Claims is a
court of limited jurisdiction and "possess[ es] only that power authorized by Constitution and
statute .... " Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). The Tucker
Act grants the Coutijurisdiction over:

       [A ]ny 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. § 1491(a)(l).




                                                  4
        The Tucker Act, however, is a "jurisdictional statute; it does not create any substantive
right enforceable against the United States for money damages .... [T]he Act merely confers
jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right
exists." United States v. Testan, 424 U.S. 392, 398 (1976) (citation omitted). And so, to pursue
a substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute, or regulation; an express or implied
contract with the United States; or an illegal exaction of money by the United States. Cabral v.
United States, 317 F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States, 402 F.3d
1167, 1173 (Fed. Cir. 2005)); Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005).
"[A] statute or regulation is money-mandating for jurisdictional purposes ifit 'can fairly be
interpreted as mandating compensation for damages sustained as a result of the breach of the
duties [it] impose[s]."' Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell, 463 U.S.
206, 217 (1983)) (brackets existing).

        Specifically relevant to this matter, it is well established that the Court does not possess
jurisdiction to review or to consider criminal matters. See Cooper v. United States, 104 Fed. Cl.
306, 311-12 (2012) (holding that this Court cannot review criminal matters). It is also well
established that "subject-matter jurisdiction, because it involves a court's power to hear a case,
can never be forfeited or waived." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (citations
omitted). "[F]ederal courts have an independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that
the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 434 (2011) (citations omitted). And so, "a court has a duty to inquire into its
jurisdiction to hear and decide a case." Special Devices, Inc., v. OEA Inc., 269 F.3d 1340, 1342
(Fed. Cir. 2001) (citations omitted).

       In addition, "[a] comi may and should raise the question of its jurisdiction sua sponte at
any time it appears in doubt." Arctic Corner, Inc. v. United States, 845 F.2d 999, 1000 (Fed. Cir.
1988) (citation omitted). To that end, the Court may not allow any matter to proceed that alleges
a basis for jurisdiction "'so attenuated and unsubstantial as to be absolutely devoid of merit."'
Kroll v. Finnerty, 242 F.3d 1359, 1362 (Fed. Cir. 2001) (quoting Hagans v. Lavine, 415 U.S.
528, 536-37 (1974)). And so, should the Court determine at any stage during litigation that it
lacks subject-matter jurisdiction, the Court must dismiss the action. RCFC 12(h)(3).


                                                  5
IV.     DISCUSSION
        A. The Court Does Not Possess Jurisdiction To Consider Plaintiff's Claims

        The Court may not entertain Mr. Townsend's challenge to his criminal conviction and
sentence to incarceration. It is well established that this Court does not possess subject-matter
jurisdiction to review or consider criminal matters. See Cooper, 104 Fed. Cl. at 311-12 (holding
that this Court cannot review criminal matters). In the complaint, Mr. Townsend alleges that
certain prison officials or inmates have interfered with the receipt of his mail and infringed upon
his First Amendment rights in connection with his incarceration at the Martin Correctional
Institution. Comp!. at 1. Plaintiff also alleges in the complaint that he "is being held against
[his] Will." [sic] Id.

        Because the gravamen of Mr. Townsend's complaint is a challenge to his criminal law
conviction and the conditions of his incarceration, the Court does not possess subject-matter
jurisdiction to consider plaintiff's claims. And so, the Court must dismiss the complaint for lack
of subject-matter jurisdiction. RCFC 12(h)(3).

        In addition, to the extent that plaintiff alleges a civil rights claim in the complaint, the
Court is similarly without jurisdiction to entertain such a claim. See, e.g., Jefferson v. United
States, 104 Fed. Cl. 81, 89 (2012) (citing multiple cases holding that the Court of Federal Claims
lacks jurisdiction to entertain claims brought under 42 U.S.C. §§ 1983, 1985 and 1988). In the
complaint, plaintiff points to a portion of the Civil Rights Act, 42 U.S.C § 1983, as a legal basis
for his claim. Comp!. at 4. It is well established that this Court may not consider claims arising
under section 1983. See, e.g., Jefferson, 104 Fed. Cl. at 89. And so, the Court does not possess
subject-matter jurisdiction to entertain any of plaintiffs claims. 4 RCFC 12(h)(3).

       B. Transfer Of This Matter To Another Court Is Not In The Interest Of Justice

       Lastly, it is not in the interest of justice to transfer plaintiffs complaint to a district court,
pursuant to 28 U.S.C. § 1631 (2012). See Tex. Peanut Farmers v. United States, 409 F.3d 1370,
1374-75 (Fed. Cir. 2005) (stating that the Comi of Federal Claims should consider whether



4
 The Comt is similarly without jurisdiction to consider t01t claims. See Trafay v. United States, 503 F.3d
1339, 1340 (Fed. Cir. 2007).



                                                    6
transfer is appropriate once the court has determined that it lacks jurisdiction). Section I 63 I
states, in pertinent part, that:
         Whenever a civil action is filed in a court as defined in section 610 of this
         title or an appeal, including a petition for review of administrative action, is
         noticed for or filed with such a court and that court finds that there is a want
         of jurisdiction, the court shall, if it is in the interest of justice, transfer such
         action or appeal to any other such court in which the action or appeal could
         have been brought.

28 U.S.C. § 1631; see 28 U.S.C. § 610 (2012) (defining courts as "courts of appeals and district
courts of the United States, the United States District Court for the District of the Canal Zone,
the District Court of Guam, the District Court of the Virgin Islands, the United States Court of
Federal Claims, and the Court of International Trade"). The United States Comi of Appeals for
the Federal Circuit has also held that "[t]he phrase 'if it is in the interest ofjustice' relates to
claims which are nonfrivolous and as such should be decided on the merits." Galloway Farms,
Inc. v. United States. 834 F.2d 998, I 000 (Fed. Cir. 1987) (citing 28 U.S.C. § 1631 ). And so,
"[a] decision to transfer rests within the sound discretion of the transferor court, and the comi
may decline to transfer the case '[i]f such transfer would neve1iheless be futile given the
weakness of plaintiffs case on the merits."' Spencer v. United States, 98 Fed. Cl. 349, 359
(2011) (alteration in original) (quoting Faulkner v. United States, 43 Fed. Cl. 54, 56 (1999)).

        The facts in this case demonstrate that plaintiff has unsuccessfully pursued the same or
similar claims to those asse1ied here in prior litigation before this Comi and several district
courts. For example, on March 11, 2015, this Comi dismissed a previous case brought by
plaintiff in which he also alleged that certain Florida Department of Corrections employees had
impersonated him, interfered with his mail and endangered his family members. See Order of
Dismissal, Townsend v. United States, No. 14-976 (Fed. Cl. Mar. 11, 2015). The United States
District Court for the Northern District of Florida also dismissed a similar case brought by
plaintiff in that comi on September 26, 2012. See Repoti and Recommendation, Townsendv.
Palmer, et al., No. 12-176 (N.D. Fla. Sept. 26, 2012). Given this, a transfer of this matter would
be futile. And so, the Court concludes that a transfer of this matter to a district court is not in the
interest of justice. 5

5Plaintiff has not paid the filing fee, nor has he filed a motion to proceed in forma pauperis. A prisoner
may not proceed in form a pauperis if the prisoner, while detained, previously had three or more


                                                     7
V.      CONCLUSION

        In sum, when construed in the light most favorable to plaintiff, a plain reading of the
complaint demonstrates that the Court does not possesses subject-matter jurisdiction to consider
plaintiffs claims. And so, the Court must dismiss this matter for lack of subject-matter
jurisdiction. RCFC 12(h)(3).
        For the foregoing reasons, the Comi DISMISSES the complaint.

        The Clerk's Office is directed to ENTER final judgment in favor of the government
DISMISSING the complaint.

        No Costs.

        IT IS SO ORDERED.




complaints dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be
granted, "unless the prisoner is in imminent danger of serious physical injury." 28 U.S.C. § 191 S(g). The
dismissal of this case counts as a "strike" under 28 U.S.C. § 191 S(g).



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