'   '



                     ]n tq.e Unit.eh ~fat.en Qlourt of 111.eh.eral Qllctf!lf..ED
                                               No. 17-1782L
                                           (Filed: May 4, 2018)                    MAY - 4 2018
                                                  )                               U.S. COURT OF
                                                                                 FEDERAL CLAIMS
        SOLOMON UPSHAW,                           )
                                                  )      RCFC 12(b)(6); Pro Se Plaintiff; No
                     Plaintiff,                   )      Action by the United States Alleged
                                                  )      To Have Caused Taking of Real
                v.                                )      Property.
                                                  )
        UNITED STATES,                            )
                                                  )
                     Defendant.                   )
        ~~~~~~~~~~~~-)

        Solomon Upshaw, Cape Neddick, ME, pro se plaintiff.

        Barbara M.R. Marvin, with whom was Jeffrey H. Wood, Acting Assistant Attorney
        General, United States Department of Justice, Washington, DC, for defendant.

                                         OPINION AND ORDER

        CAMPBELL-SMITH, Judge.

              The court has before it defendant's motion to dismiss the complaint, brought under
        Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC). This
        motion has been fully briefed, as follows: Defendant's Motion, ECF No. 10; Plaintiffs
        Response, ECF No. 11; and Defendant's Reply, ECF No. 12. 1 The court has also
        considered the complaint. See Comp!., ECF No. 2.

                On November 14, 2017, Mr. Upshaw filed suit in this court against the United
        States, requesting $2,000,000 in just compensation for an alleged taking of his real
        property. ECF No. 2 at 1. The property is located in Jackson, New Jersey. Id. The
        taking is alleged to have occurred due to the public "right of way of Wright-Debow Road
        and Dirt Road." Id.

               Defendant argues that the complaint, and plaintiffs response brief, fail to point to
        any action of the United States which caused the alleged taking. See ECF No. 12 at 3

                All document references and page citations are to the electronic record preserved
        in the court's Case Management/Electronic Case Files (CM!ECF) system.
("In neither the Complaint nor his Response does Mr. Upshaw direct any allegations
against the United States or suggest that the United States participated or was involved in
whatever action or actions he claims constitute a taking of his property without just
compensation."). For this reason, defendant states that the complaint should be
dismissed for failure to state a claim upon which relief may be granted. Id. For the
reasons set forth in this order, defendant's motion is GRANTED.

I.     Legal Standards

       A.     Pro Se Litigants

        The court observes that Mr. Upshaw is proceeding pro se and thus, is "not
expected to frame issues with the precision of a common law pleading." Roche v. U.S.
Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Prose plaintiffs are entitled to a
liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(requiring that allegations contained in a pro se complaint be held to "less stringent
standards than formal pleadings drafted by lawyers"). Accordingly, the court has
thoroughly examined the complaint, plaintiffs brief, and attachments thereto to discern
plaintiffs claims and legal arguments.

       B.     Failure to State a Claim upon Which Relief Can Be Granted

       It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "when
the facts asserted by the claimant do not entitle him to a legal remedy." Lindsay v.
United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering a motion to
dismiss brought under RCFC l 2(b )( 6), "the allegations of the complaint should be
construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),
abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court
must inquire, however, whether the complaint meets the "plausibility" standard described
by the Supreme Court, that is, whether it adequately states a claim and provides a
"showing [of] any set of facts consistent with the allegations in the complaint." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 560, 563 (2007) (Twombly) (citations
omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft
v. Igbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

II.    Discussion

        Mr. Upshaw has alleged facts, which are construed in his favor, that support his
assertion that he owns real property in Jackson, New Jersey. See ECF No. 2 at 2; ECF
No. 11 at 1, 16-19; ECF No. 11-1 at 1-2. However, there is no allegation that the United
States took any action that is relevant to an alleged taking of Mr. Upshaw's land due to
                                               2
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    the public right of way associated with either Wright-Debow Road or Dirt Road in
    Jackson. A plausible takings claim, in this court, must allege that the United States took
    the plaintiffs property, not that some state government, local government, or private
    individual took that property. See, e.g., United States v. Sherwood, 312 U.S. 584, 588
    (1941) (stating that the only proper defendant in this court is the United States) (citations
    omitted). Mr. Upshaw's takings claim, as presented in his complaint and re-asserted in
    his response brief, does not present a plausible takings claim.

    III.   Conclusion

            Mr. Upshaw's complaint does not present a plausible claim for relief.
    Accordingly, because the complaint fails to state a claim upon which relief can be
    granted, it must be dismissed pursuant to RCFC 12(b)(6). For these reasons, defendant's
    motion to dismiss, ECF No. 10, is GRANTED. The clerk's office is directed to
    ENTER final judgment in favor of defendant DISMISSING plaintiffs complaint for
    failure to state a claim upon which relief may be granted, with prejudice. The injunction
    entered by this court in Upshaw v. United States, No. l 7-048C, slip op. at 3 (Fed. Cl.
    Feb. 14, 2017), which imposes conditions before any new filings by Mr. Upshaw will be
    considered by this court, REMAINS IN FULL FORCE AND EFFECT.

           IT IS SO ORDERED.




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