                                     ORIGINAL
                3Jn tbe Wniteb ~tates QCourt of jfeberal QClaitns
                                            No. 17-2058C

                                      (Filed: February 27, 2018)

                                     (NOT TO BE PUBLISHED)

 **********************************
                                                )
 LORI NICKENS, et al.,                          )
                                                )
                                                                                FILED
                        Plaintiff,              )
                                                )
                                                                               FEB 27 2018
           v.                                   )                            U.S. COURT OF
                                                )                           FEDERAL CLAIMS
 UNITED STATES,                                 )
                                                )
                        Defendant.              )
                                                )
 **********************************

       Lori Nickens and Yvonne Nickens, prose, Washington, D.C.

        Aaron E. Woodward, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Chad A. Readier, Acting Assistant Attorney General, Civil Division, Robe1t E. Kirshman,
Jr., Director, and Lisa L. Donahue, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C.

                                      OPINION AND ORDER

LETTOW, Judge.

        Plaintiffs, Lori and Yvonne Nickens, bring a wrongful death action on behalf of their son
and brother, Christopher S. Nickens. Compl. at 4-5. 1 Plaintiffs' bring this claim against the
"United States [o]f America," the "Federal Bureau of Prisons," and the "[w]arden [a]nd [a]ll
[u]nkown [a]gents [o]f [the] Federal Bureau of Prisons - United States Medical Center for
Federal Prisoners." Compl. at 4. At the time of his death, Mr. Nickens was an inmate in a
federal prison and had served 10 years of a 35-year sentence for murder. Compl. at 5. "During
his incarceration, [Mr.] Nickens was diagnosed with several ailments," including diabetes, a
chronic kidney disorder, rendering him "dialysis[-]dependent," and congestive heait failure, for
which "a "[stent was] placed in his heait." Compl. at 5.


       1
        The complaint is not paginated. Citations to particulai· po1t ions of the complaint refer to
the order in which the pages actually appear.



                                                                    7017 1450 ODDO 1346 0942
        The complaint presents a tragic account. In December 2015, Mr. Nickens "went into
medical distress, alerting another inmate that he needed help." Comp!. at 5. That inmate notified
prison staff of the emergency, and the staff summoned a nurse who determined that Mr. Nickens
"needed to be transported to the hospital." Comp!. at 5. Plaintiffs allege that "Mr. Nickens was
denied immediate medication to offset[] the early stages of a heart attack and the denial of
medical treatment for his ... congestive heart failure." Comp!. at 5. He did not receive any
medical assistance for seven hours, leaving him "bed[-]ridden and incapacitated." See Comp!. at
5. The delay allegedly "caused him to go deeper into further medical distress, leading to chest
pains" in transit to the hospital and "a massive heart attack upon his arrival at the hospital."
Comp!. at 5. Mr. Nickens was placed on a ventilator in a "comatose state" "for several days"
until he was pronounced dead on December 28, 2015. Comp!. at 5, 7.

         The plaintiffs allege that the negligence of "all [d]efendant[ s]" caused Mr. Nickens to
suffer conscious pain and suffering and "directly and proximate[ly] caused" his death. Comp!. at
5-6. Based on these alleged facts, plaintiffs bring several statutory and constitutional claims.
See Comp!. at 6-8. Plaintiffs assert that Mr. Nickens' rights under the Eighth Amendment were
violated as the "deficient medical care" provided allegedly amounted to cruel and unusual
punishment. Comp!. at 6-7. Additionally, plaintiffs allege various tort claims, including
wrongful death, intentional misrepresentation, negligent misrepresentation, negligent deceit,
negligence in failure to diagnose and treat, and negligent violations of civil rights. See Comp!. at
6-8. 2 Plaintiffs seek $3,000,000 "in compensatory and punitive damages, plus interest and costs
as this [c ]ourt deems appropriate." Comp!. at 8.

        Pending before the court is the government's motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim pursuant to Rules 12(b)(l) and 12(b)(6) of the Rules of
the Court of Federal Claims. See generally Def.'s Mot. to Dismiss Pis.' Complaint, ECF No. 10.
The plaintiffs have responded in opposition. ECF No. 11.

                                   STAND ARDS FOR DECISION

         In any action, the plaintiff has the burden of establishing jurisdiction. Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). When ruling on a motion to
dismiss for lack of jurisdiction, the court must "accept as true all undisputed facts asserted in the
plaintiffs complaint and draw all reasonable inferences in favor of the plaintiff." Trusted
Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The leniency afforded a
prose plaintiff with respect to formalities does not relieve prose litigants of their obligation to
satisfy jurisdictional requirements. Kelley v. Secretary, United States Dep't of Labor, 812 F.2d
1378, 1380 (Fed. Cir. 1987).

        The Tucker Act provides this court with jurisdiction over "any claim against the United
States founded either upon the Constitution or any Act of Congress ... in cases not sounding in
tort." 28 U.S.C. § 1491(a)(l) (emphasis added). This court's jurisdiction does not extend to
suits against private individuals, even where those individuals are officers or employees of the
government. See 28 U.S.C. § 149l(a)(l); see also United States v. Sherwood, 312 U.S. 584, 588


        2
            The final count is brought under 42 U.S.C. § 1983.
                                                   2
(1941) (holding that this court's predecessor's "jurisdiction [was] confined to the rendition of
money judgments in suits brought for that relief against the United States ... , and ifthe relief
sought is against others than the United States the suit as to them must be ignored as beyond the
jurisdiction of the court.") (internal citations omitted); Stephenson v. United States, 58 Fed. CL
 186, 190 (2003) (explaining that claims against government officials in their personal capacities
cannot be maintained because "the only proper defendant for any matter before this court is the
United States, not its officers, nor any other individual") (emphasis in original).

        In suits against the United States, the Tucker Act waives sovereign immunity and allows
a plaintiff to sue for money damages, see United States v. Mitchell, 463 U.S. 206, 212 (1983),
but it does not provide a plaintiff with substantive rights, United States v. Testan, 424 U.S. 392,
398 (1976). Rather, "a plaintiff must identify a separate source of substantive law that creates
the right to money damages" to establish jurisdiction. Fisher v. United States, 402 F.3d 1167,
1172 (Fed. Cir. 2005) (en bane in relevant part) (citing Mitchell, 463 U.S. at 216; Testan, 424
U.S. at 398). That source of substantive law must be amenable to being "fairly ... interpreted as
mandating compensation by the [flederal [g]overnment for the damage sustained." Testan, 424
U.S. at 400 (quoting Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1009 (Cl. Ct. 1967))
(additional citation omitted).

        "If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a
matter of law." Gray v. United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte Mccardle, 74
U.S. (7 Wall.) 506, 514 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985));
see also Trevino v. United States, 113 Fed. CL 204, 207 (2013) ("Where the court has not been
granted jurisdiction to hear a claim, the case must be dismissed.") (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006)).

                                           ANALYSIS

         This comt lacks jurisdiction over plaintiffs' claims against the prison warden and the
prison staff as private individuals, see Sherwood, 312 U.S. at 588; Stephenson, 58 Fed. CL at
 190, and over plaintiffs' various tort claims, see 28 U.S.C. § 149l(a)(l); Phang v. United States,
87 Fed. Cl. 321, 326 (2009) ("The Tucker Act specifically excludes tort claims from the
jurisdiction of this court."), aff'd, 388 Fed. Appx. 961 (Fed. Cir. 2010). This court also lacks
jurisdiction over plaintiffs' claims under 42 U.S.C. § 1983 because jurisdiction over such claims
"is conferred exclusively on the United States District Courts." Lowe v. United States, 76 Fed.
Cl. 262, 266 (2007). Plaintiffs' remaining claim is a right to damages for "deficient medical
care," amounting to cruel and unusual punishment in violation of Mr. Nickens' Eighth
Amendment rights. See Comp!. at 4, 6-7. Constitutional provisions can give rise to jurisdiction
in this court when they are money mandating, i.e., when they "explicitly [or] implicitly obligate
the federal government to pay damages." United States v. Connolly, 716 F.2d 882, 887 (Fed.
Cir. 1983) (en bane). But this court "does not have jurisdiction over claims arising under the
Eighth Amendment, as the Eighth Amendment is not a money-mandating provision" of the
Constitution. Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (internal quotation
marks omitted).




                                                 3
        Because plaintiffs have not asserted any claim that gives rise to jurisdiction in this court,
this action must be dismissed. See Thoen, 765 F.2d at 1116.

                                          CONCLUSION

    For the reasons stated, the government's motion to dismiss plaintiffs' complaint is
GRANTED. The clerk shall enter judgment in accord with this disposition.

       No costs.

       It is so ORDERED.




                                                    Charles F. Lettow
                                                    Judge




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