            In the United States Court of Federal Claims


 KUNTA REDD,

               Plaintiff,
                                                          No. 19-cv-1167
                    v.
                                                          Filed: April 8, 2020
 THE UNITED STATES,

               Defendant.



                                             ORDER

       Plaintiff pro se Kunta Redd brings this action against the United States pursuant to 28

U.S.C. § 1495, seeking money damages for his alleged unjust conviction and wrongful

imprisonment. Complaint (Compl.) at 1-3. In addition, Plaintiff filed a Motion for Leave to

Proceed in forma pauperis. See ECF No. 6. On October 11, 2019, Defendant timely moved to

dismiss Plaintiff’s Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United

States Court of Federal Claims (Rules). See Def. Motion to Dismiss (ECF No. 10) (Def. Mot.).

On February 27, 2020, this case was transferred to the undersigned judge pursuant to Rule 40.1(c).

See ECF No. 17. This Court has considered all of the parties’ filings and arguments in ruling on

the parties’ motions. For the following reasons, this Court grants Plaintiff’s Motion for Leave to

Proceed in forma pauperis (ECF No. 6) and grants Defendant’s Motion to Dismiss (ECF No. 10)

pursuant to Rules 12(b)(1), 12(h)(3), and 12(b)(6).

                                        BACKGROUND

       On August 18, 2008, Plaintiff pleaded guilty to conspiracy to distribute and possess with

the intent to distribute fifty grams or more of crack cocaine and a quantity of cocaine, pursuant to
21 U.S.C. § 846. See Compl. Exhibit (Ex.) 1 at 2, 12; Plaintiff’s Response to Motion to Dismiss

(ECF No. 13) (Pl. Resp.) at 9.       On July 8, 2009, Plaintiff was sentenced to 324 months

imprisonment and five years of supervised release. See Compl. Ex. 1 at 7; Pl. Resp. at 10. On

January 17, 2017, President Obama commuted Plaintiff’s sentence to 188 months through an

executive grant of clemency. See Compl. Ex. 1 at 5, 19-20; Pl. Resp. at 10. The grant of clemency

also left the five-year term of supervised release intact. See id. Subsequently, Plaintiff has

remained incarcerated pursuant to his 2008 guilty plea and has unsuccessfully sought further

reduction of his sentence. See Order, United States v. Redd, No. 7:08-cr-43-D (E.D.N.C. April 3,

2020) (Dkt. No. 170); see also United States v. Redd, 776 F. App'x 112, 113 (4th Cir. 2019) (per

curiam), cert. denied, 140 S. Ct. 511 (2019). Plaintiff is currently incarcerated in federal prison

on the charges he alleges resulted in his wrongful imprisonment. See Compl. at 2 & Ex. 1; Pl.

Resp. at 1, 4; Pl. Resp. to Order to Show Cause (ECF No. 14) at 1-2.

       Plaintiff’s allegations primarily relate to his contention that the trial court and courts of

appeal unfairly refused to resentence him to a lesser term of imprisonment. Although Plaintiff

states that his 2008 guilty plea and sentence were “reversed and set aside on the ground [that he

is] not guilty,” he later clarifies this statement, contending that the courts should have found him

not guilty under the Due Process Clause of the Fifth and Fourteenth Amendment. Compl. at 2; Pl.

Resp. to Order to Show Cause at 1. Plaintiff further asserts he has been pardoned on grounds of

innocence by President Obama, despite that the filings he references in his Complaint and exhibits

attached thereto, including Plaintiff’s pleadings before another court, unequivocally demonstrate

that his sentence of imprisonment was reduced through a presidential commutation and that he did

not receive a pardon. Compl. at 1 & Ex. 1 at 5, 19-20; Pl. Resp. at 10; see also Def. Mot. at 2

(Defendant “recognizes that President Obama commuted Mr. Redd’s sentence”). Additionally,



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Plaintiff accuses his sentencing judge and two prosecutors of “misconduct and neglect and

prosecution of corruption extortion racist Discrimination unprofessional Racketeering improper

vouching creditability statement from . . . informant breach plea agreement.” Compl. at 1-2. He

further contends that his plea agreement is invalid because his public defender allegedly signed it

in a church parking lot instead of the courtroom and that act was unconstitutional. Compl. at 3.

Additionally, the Plaintiff contends that his sentencing judge, the chief judge, and the clerk of court

for U.S. Court of Appeals for the Fourth Circuit allegedly engaged in discriminatory and tortious

behavior and violated the Fair Sentencing Act of 2010, 124 Stat. 2372. Pl. Resp. at 1; see also Pl.

Resp. to Order to Show Cause at 2. As relief, Plaintiff seeks between $300,000 and $1,200,000 in

damages. Compl. at 1.


                                           DISCUSSION

   I.       In Forma Pauperis Motion

         As an initial matter, Plaintiff, who is incarcerated, filed a Motion for Leave to Proceed in

forma pauperis in this matter, pursuant to 28 U.S.C. § 1915. Along with this motion, Plaintiff has

submitted documentation which satisfies the statute’s requirements. See also 28 U.S.C. § 2513(d)

(permitting plaintiff to prosecute 28 U.S.C. § 1495 claim in forma pauperis). Accordingly, this

Court grants Plaintiff’s Motion for Leave to Proceed in forma pauperis (ECF No. 6) in this matter.

In accordance with 28 U.S.C. § 1915(b), Plaintiff must still pay the entire filing fee, but is now

entitled to do so through periodic payments from his inmate trust account.

   II.      Motion to Dismiss

         Defendant moves to dismiss Plaintiff’s Complaint on the grounds that (1) Plaintiff fails to

state a claim under which relief may be granted under 28 U.S.C. § 1495 because he cannot meet

the related requirements of 28 U.S.C. § 2513, and (2) this Court lacks subject matter jurisdiction


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to consider Plaintiff’s claims concerning denial of his post-conviction relief and complaints against

various court officials because those claims do not relate to money mandating provisions of law.

Def. Mot. at 1-2; Def. Reply at 1-2.

        In considering Defendant’s Motion to Dismiss, the Court “accepts as true all

uncontroverted factual allegations in the complaint and construes them to the light most favorable

to the plaintiff.” Estes Express Lines v. United States, 739 F.3d 689, 692 (Fed. Cir. 2014) (citation

omitted). Like the Plaintiff here, a pro se litigant’s submissions are held to “less stringent standards

than [those] drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, regardless

of the plaintiff’s pro se status, “[t]o 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.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570); see Pieczenik v. Bayer Corp.,

474 F. App’x 766, 770 (Fed. Cir. 2012). Additionally, a plaintiff’s “[f]actual allegations must be

enough to raise a right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (requiring plaintiff to plead “enough fact[s] to raise a reasonable expectation that

discovery will reveal evidence of [his claim]”). The Court’s consideration of a motion to dismiss

is limited to facts stated on the face of the complaint, in documents appended to the complaint or

incorporated in the complaint by reference, and to matters of which judicial notice may be taken.

See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted). “In

ruling on a 12(b)(6) motion, a court need not ‘accept as true allegations that contradict matters

properly subject to judicial notice or by exhibit.’” Secured Mail Sols. LLC v. Universal Wilde,

Inc., 873 F.3d 905, 913 (Fed. Cir. 2017) (quoting Anderson v Kimberly-Clark Corp., 570 F. App’x

927, 931 (Fed. Cir. 2014) (citation omitted)). Additionally, the leniency afforded to pro se litigants

with regard to pleading formalities does not relieve them of meeting the jurisdictional requirements



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of this Court. Kelley v. Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987). A

plaintiff must establish jurisdiction by a preponderance of the evidence. Taylor v. United States,

303 F.3d 1357, 1359 (Fed. Cir. 2002) (citation omitted).

       The United States Court of Federal Claims is a court of limited jurisdiction. Through

enactment of the Tucker Act, which acts as a waiver of sovereign immunity, Congress has placed

within this Court’s jurisdiction “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. § 1491(a); see United States v. Mitchell, 463 U.S. 206, 212

(1983). The Tucker Act is a jurisdictional statute and does not create any enforceable right against

the United States on its own. See Mitchell, 463 U.S. at 216; United States v. Testan, 424 U.S. 392,

298 (1976); Todd v. United States, 386 F.3d 1091, 1093-94 (Fed. Cir. 2004). In order to fall within

the Tucker Act’s waiver of sovereign immunity, a plaintiff’s claim for money damages against the

United States must be based upon an express or implied contract, or a money-mandating

constitutional provision, statute, or regulation. See 28 § U.S.C. 1491(a); Mitchell, 463 U.S. at 216-

18. Specifically, a plaintiff “must demonstrate that the source of substantive law he relies upon

‘can fairly be interpreted as mandating compensation by the Federal Government.’” Mitchell, 463

U.S. at 216 (1983) (quoting Testan, 424 U.S. at 400 (citation omitted)).

       A. Plaintiff’s Claim Pursuant to 28 U.S.C. § 1495

       This 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. § 1495.

However, a plaintiff bringing suit pursuant to 28 U.S.C. § 1495 must satisfy the requirements of




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28 U.S.C. § 2513. See 28 U.S.C. 2513(a); Castro v. United States, 364 F. App’x 619, 620 (Fed.

Cir. 2010). To satisfy the conditions of 28 U.S.C. § 2513, a plaintiff “must allege and prove” that:


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

       (2) He did not commit any of the acts charged or his acts, deeds, or omissions in
           connection with such charge constituted no offense against the United States,
           or any State, Territory 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).

       Further, Section 2513 requires:

       (b) Proof of the requisite facts shall be by a certificate of the court or pardon wherein
       such facts are alleged to appear, and other evidence thereof shall not be received [,
       and]

       (c) No pardon or certified copy of a pardon shall be considered by the United States
       Court of Federal Claims unless it contains recitals that the pardon was granted after
       the applicant had exhausted all recourse to the courts and that the tie for any court
       to exercise its jurisdiction had expired.

28 U.S.C. §§ 2513(b), (c). Plaintiff does not, and cannot, meet these requirements.

       Viewing Plaintiff’s allegations in the most favorable light and holding Plaintiff pro se’s

pleadings to a more lenient standard, Plaintiff has nevertheless failed to state a claim that he has,

or can, meet the requirements of 28 U.S.C. § 1495 and 28 U.S.C. § 2513. Specifically, Plaintiff is

not entitled to relief because he cannot show that he received a pardon “granted upon the stated

ground of innocence and unjust conviction.” 28 U.S.C. § 2513(a)(1); see 28 U.S.C. § 2513(b);

Bobka v. United States, 133 Fed. Cl. 405, 410 (2017). Indeed, Plaintiff’s Complaint and Response

to Defendant’s Motion to Dismiss state precisely the opposite. Despite receiving a reduction of

his sentence via presidential commutation, Plaintiff remains imprisoned - though he contends


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unfairly so - for the offense to which he pleaded guilty in 2008. See Compl. at 1-2 & Ex. 1 at 20;

Pl. Resp. at 1, 4.

        Although Plaintiff has attached a January 17, 2017 letter from President Obama commuting

Plaintiff’s sentence, the commutation does not meet Section 2513’s requirements. See Compl. Ex.

1 at 20. President Obama’s 2017 commutation reduced Plaintiff’s sentence and is not a pardon,

much less one issued on the “ground of innocence and unjust conviction.” 28 U.S.C. § 2513(a)(1).

The language of Section 2513 is clear that Plaintiff must show that he received a pardon, not a

commutation. 28 U.S.C. §§ 2513(a)(1), (b). Nor does the commutation state that Plaintiff was

pardoned “upon the stated ground of innocence and unjust conviction.”                  See 28 U.S.C. §

2513(a)(1); see also Humphrey v. United States, 60 F. App’x 292, 295 (Fed. Cir. 2003) (per

curiam). To the contrary, the 2017 commutation letter unequivocally states that the commutation

“will not result in [Plaintiff’s] immediate release,” and that Plaintiff “will be required to serve

additional time to reflect the seriousness of [his] offense.” See Compl. Ex. 1 at 20.

        Additionally, the docket sheet and other court documents attached to Plaintiff’s Complaint

and incorporated by reference into Plaintiff’s Response, as well as a review of the publicly

available docket 1, do not indicate that Plaintiff was ever exonerated for his crime. See 28 U.S.C.

§ 2513(a)(1). To the contrary, these attachments indicate that courts have uniformly upheld the

U.S. District Court’s acceptance of Plaintiff’s 2008 guilty plea. See United States v. Redd, 384 F.

App'x 279, 281 (4th Cir. 2010) (finding that the district court did not err in accepting Mr. Redd’s

guilty plea where “Redd did not credibly assert his legal innocence”); United States v. Redd, 519

F. App'x 173 (4th Cir. 2013) (dismissing Plaintiff’s appeal from denial of post-conviction relief),



1
  As noted supra, this Court may take judicial notice of publicly available documents in ruling upon a
Rule 12(b)(6) motion to dismiss. See Tellabs, 551 U.S. at 322; Secured Mail Sols. 873 F.3d at 913
(citations omitted).

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cert. denied, 571 U.S. 911 (2013); United States v. Redd, 627 F. App'x 228, 229 (4th Cir. 2015)

(affirming the district court’s order denying Plaintiff’s motion to reduce his sentence); Redd v.

Wilson, No. 3:17-cv-393, 2017 WL 7805591, at *2 (E.D. Va. Sept. 14, 2017) (dismissing petition

for writ of habeas corpus) aff'd, 703 F. App'x 196 (4th Cir. 2017); United States v. Redd, 776 F.

App'x 112, 113 (4th Cir.) (per curiam) (denying petition seeking sentence reduction), cert. denied,

140 S. Ct. 511 (2019).

       Accordingly, Plaintiff’s unjust conviction and wrongful imprisonment claim pursuant to

28 U.S.C. § 1495 must be dismissed under Rule 12(b)(6) for failure to state a claim upon which

relief may be granted.

       B. Plaintiff’s Remaining Allegations

       To the extent that Plaintiff brings claims relating to purported violations of the Due Process

Clause of the Fifth and Fourteenth Amendments, allegations sounding in habeas corpus,

allegations concerning tortious conduct, or otherwise seeks relief against individual federal

officials, this Court clearly lacks jurisdiction to hear those claims. See Compl. at 1-3; Pl. Resp. at

1, 4; Pl. Resp. to Order to Show Cause at 2. The Tucker Act waives sovereign immunity for certain

claims against the United States that are founded upon the United States Constitution or federal

laws. 28 U.S.C. § 1491(a)(1). However, to come within this sovereign immunity waiver, the

constitutional and statutory provisions at issue must mandate the payment of money for their

violation. See Mitchell, 463 U.S. at 218; Todd, 386 F.3d at 1094. As the Due Process Clause of

the Fifth and the Fourteenth Amendments are not money-mandating, Plaintiff’s related claims

concerning alleged due process violations must be dismissed for lack of jurisdiction pursuant to

Rule 12(b)(1) and 12(h)(3). See Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir. 2013)

(“The law is well settled that the Due Process clauses of both the Fifth and Fourteenth Amendments



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do not mandate the payment of money and thus do not provide a cause of action under the Tucker

Act.”) (citing Le Blanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)); see also Drake v.

United States, 792 F. App’x 916, 920 (Fed. Cir. 2019) (per curiam) (same). Additionally,

Plaintiff’s claims sounding in habeas corpus, or other claims seeking to overturn his conviction or

reduce his sentence of imprisonment, are beyond the jurisdiction of this Court, and must similarly

be dismissed. See Compl. at 1-3; Pl. Resp. at 1, 4; Pl. Resp. to Order to Show Cause at 1-2; see

Curry v. United States, 787 F. App’x 720, 723 (Fed. Cir. 2019); Canuto v. United States, 651 F.

App’x 996, 997 (Fed. Cir. 2016); Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir. 1994); see

also Sykes v. United States, 105 Fed. Cl. 231, 233 (2012) (“In acting on a claim predicated upon

Sections 1495 and 2513, this court ‘does not have the power to review and overturn convictions

or to review in detail the facts surrounding a conviction or imprisonment.’”) (quoting Zakiya v.

United States, 79 Fed. Cl. 231, 235-35 (2007), aff’d, 277 F. App’x 985 (Fed. Cir. 2008)).

       Finally, to the extent that Plaintiff seeks relief related to the purportedly tortious actions of

individual federal officials, such as federal judges, court employees, public defenders, or

prosecutors, this Court lacks jurisdiction to consider those claims, and such claims must be

dismissed pursuant to Rule 12(b)(1) and 12(h)(3). See Compl. at 2-3; Pl. Resp. at 1. It is well

established that under the Tucker Act, “jurisdiction is confined to the rendition of money

judgments in suits brought for that relief against the United States . . . [and] relief sought [against

parties other than the] United States . . . must be ignored as beyond the jurisdiction of the court.”

United States v. Sherwood, 312 U.S. 584, 588 (1941); see Curry, 787 Fed. App’x at 722-23. It is

similarly axiomatic that Congress expressly excluded claims for compensation based in tort from

this Court’s jurisdiction, and accordingly any of Plaintiff’s claims sounding in tort must also be




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dismissed pursuant to Rule 12(b)(1) and Rule 12(h)(3). See 28 U.S.C. § 1491(a); Rick’s Mushroom

Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008).

                                          CONCLUSION

       For the foregoing reasons, this Court GRANTS Plaintiff’s Motion for Leave to Proceed in

forma pauperis (ECF No. 6). This Court also GRANTS Defendant’s Motion to Dismiss (ECF

No. 10). Because this Court finds that Plaintiff cannot plead any facts that would plausibly state

a claim for relief, this Court dismisses the Complaint without leave to replead. The Clerk of the

Court is directed to mark this case as closed.

       SO ORDERED.

                                                 s/Eleni M. Roumel
                                                 ELENI M. ROUMEL
                                                     Judge


Dated: April 8, 2020




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