ORIGINAL

am the (ﬂatten @5625 @nurt of Jﬁzheral @Iaims
No. 15-13OC FILED

(Filed: May 20, 2015)
MAY 20 2015

U.S. COURT OF

VASSAR DUBARD JONES, pro se, FEDERAL CLAIMS

Plaintiff,
Pro Se; Rule 12(b)(1); Subject-Matter
Jurisdiction; Rule 12(b)(6); Failure to
State a Claim; Rule 41(b); Failure to
Prosecute; In F orma Pauperis.

V.

THE UNITED STATES,

Defendant.

vvvvvvvvvvv

Vassar Dubard Jones, Chattanooga, TN, plaintiff pro se.

Douglas T. Hoﬂman, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E,
Kirschman, Jr., Director, Benjamin C. Mizer, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.

MEMORANDUM OPINION AND ORDER

1. INTRODUCTION

Pro se plaintiff, Vassar Dubard Jones, brought this action seeking money damages related
to an amusement park rotor. The government moved, pursuant to Rule 12(b)(1) of the Rules of
the United States Court of Federal Claims (“RCFC”), to dismiss plaintiff’s complaint for lack of
subject-matter jurisdiction or, in the alternative, pursuant to RCFC 12(b)(6), for failure to state a
claim upon which relief can be granted. In addition, plaintiff has filed a motion to proceed in
this matter in forma pauperis, alleging that he lacks the financial resources to pay the Court’s
ﬁling fee. For the reasons set forth below, the Court: (1) GRANTS the government’s motion to
dismiss; and (2) GRANTS plaintiff’s motion to proceed in forma pauperis.

II. FACTUAL PROCEDURE AND BACKGROUND1

On February 9, 2015, plaintiff ﬁled a handwritten complaint in this Court. The complaint
describes what plaintiff calls “the rotor,” which is described as a hollow cylindrical room found
in many amusement park rides. Compl. at 1. The amusement park ride works, according to the
complaint, by having a passenger enter the rotor, close the door, and stand up against the wall.
Id. The rotor then “gradually increases its rotational speed from rest until, at a predetermined
speed, the ﬂoor below the person is opened downwards, revealing a deep pit. The passenger
does not fall but remained ‘pinned up’ against the wall of the rotor.” Id. The complaint goes on
to illustrate the calculations used to operate the ride. Id. at 1-3. The complaint appears to seek
$50,000 from the Export Import Bank of the United States, as well as additional amounts from
various other non-federal government entities, but does not identify the reason such amounts are

owed.2 Compl. at 3.

On March 25, 2015, defendant ﬁled a motion to dismiss this action for lack of subj ect-
matter jurisdiction pursuant to Rule 12(b)(l), or, alternatively, for failure to state a claim
pursuant to Rule 12(b)(6). See generally Def. Mot. In its motion, the government argues that
plaintiff has failed to plead a cause of action within this Court’s jurisdiction. Def. Mot. at 1. The
government further argues that plaintiff does not articulate a grievance; has not alleged any facts
implicating a money-mandating statute, regulation, or contract that entitles plaintiff to relief; and
has failed to articulate any facts sufﬁcient to make plaintiffs right to relief in this Court more
than speculative. Id. On March 31, 2015, the Clerk’s Ofﬁce of the United States Court of
Federal Claims noted that the notice of assignment and docket sheet, which were sent on
February 9, 2015 to the address of record provided by the plaintiff, were returned to the Court as

undeliverable.

 

TEE—_— _ ___

1 The facts recounted in this Memorandum Opinion and Order are taken from plaintiff s
complaint cited in this Memorandum Opinion and Order as (“Compl. at ”), and the
defendant’s dispositive motion cited as (“Def Mot. at _”). Except where otherwise noted, the
facts recited here are undisputed. The Court accepts the undisputed facts recited in the complaint
as true.

 

 

2 This Court is without jurisdiction to consider claims brought against parties other than the
United States. United States v. Sherwood, 312 US. 584, 588 (1941).

Pursuant to Rule 7.2(b)(l) plaintiffs response to defendant’s motion to dismiss was due
on or before April 27, 2015, but the Court never received a response. On May 4, 2015, the Court
issued an Order to Show Cause on or before May 18, 2015, as to why this action should not be
dismissed for failure to prosecute pursuant to RCFC 41(b). In the Order, the Court stated that
should plaintiff fail to respond to the Court’s Order, the Court would dismiss plaintiffs

complaint for failure to prosecute.

On May 19, 2015, the Clerk’s Ofﬁce received various documents from plaintiff,
including a newspaper clipping on the human genome and various handwritten notes none of

which relate to this case.3

111. STANDARDS OF REVIEW
A. Pro Se Litigants

When a party is acting pro se, courts generally accord the party greater leeway than
litigants represented by counsel. See Haines v. Kerner, 404 US. 519, 520-21 (1972) (holding
that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than
formal pleadings drafted by lawyers”). Accordingly, the Court should thoroughly examine the
plaintiffs complaint in an attempt to discern whether the “plaintiff has a cause of action
somewhere displayed.” Ruderer v. United States, 412 F.2d 1285, 1292 (Ct. C1. 1969). However,
“[w]hile a court should be receptive to pro se plaintiffs and assist them, justice is ill-served when
a jurist crosses the line from ﬁnder of fact to advocate.” Demes v. United States, 52 Fed. Cl.
365, 369 (2002). Furthermore, the “the leniency afforded to a pro se litigant with respect to mere
formalities does not relieve the burden to meet jurisdictional requirements.” Minehan v. United
States, 75 Fed. Cl. 249, 253 (2007). Therefore, While the Court may excuse ambiguities in the
plaintiffs complaint, the Court does not excuse the complaint’s failures. See Henke v. United

States, 60 F.3d 795, 799 (Fed. Cir. 1995).

 

3 The Court directed the Clerk’s ofﬁce on May 19, 2015 to return the miscellaneous documents
to plaintiff unﬁled.

B. Lack of Subject-Matter Jurisdiction, RCFC 12(b)(1)

It is well established that subject-matter jurisdiction is “a threshold question that must be
resolved . . . before proceeding to the merits” of a claim. Steel Co. v. Citizens for a Better Env ’t,
523 US. 83, 88-89 (1998). When considering whether to dismiss an action for lack of subject-
matter jurisdiction, the court is “obligated to assume all factual allegations [of the complaint] to
be true and to draw all reasonable inferences in plaintiff s favor.” Henke, 60 F.3d at 797.
However, plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence.
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.1988). If subject-matter
jurisdiction is found to be lacking, the Court must dismiss the action. RCFC l2(h)(3).

The jurisdiction of the United States Court of Federal Claims is established by the Tucker
Act, which provides:

The United States Court of Federal Claims shall have jurisdiction to render
judgment upon 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. § l49l(a)(1).

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. T estan, 424 US. 392, 398 (1976). And so, to pursue a substantive right
under the Tucker Act, a plaintiff must identify and plead a money-mandating constitutional

provision, statute or regulation, or an express or implied contract with the United States. Cabral

v. United States, 317 F. App'x 979, 981 (Fed. Cir. 2008).
C. Failure to State a Claim, RCFC 12(b)(6)

A claim is subject to dismissal for failure to state a claim upon which relief may be
granted pursuant to RCFC 12(b)(6). When considering a motion to dismiss for failure to state a
claim, the allegations in the complaint must be accepted as true and should be construed in favor
ofthe plaintiff. BellAtl. Corp. v. Twombly, 550 US. 544, 555 (2007); Cambridge v. United
States, 558 F.3d 1331, 1335 (Fed. Cir. 2009). To survive a motion to dismiss under RCFC

12(b)(6), the 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). A complaint should be dismissed “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).

IV. DISCUSSION

A. Failure to Prosecute

Under RCFC 41(b), a case may be dismissed for failure to prosecute “[i]f the plaintiff
fails to prosecute or to comply with these rules or a court order, the court may dismiss on its own
motion or the defendant may move to dismiss the action or any claim against it. Unless the
dismissal order states otherwise, a dismissal under this subdivision . . . operates as an
adjudication on the merits.” RCFC 41(b). The “authority of a court to dismiss sua sponte for
lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or
statute but by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Claude E. Atkins Enterprises, Inc. v. United
States, 899 F.2d 1180, 1185 (Fed. Cir. 1990) (quoting Link v. Wabash RR. C0., 370 U.S. 626,
630-31 (1962)). And so, this Court has noted that while dismissal of a claim is a “harsh action,
especially to a pro se litigant,” such action is necessary when a party fails to diligently pursue

litigation. Cearley v. United States, No. 14—381T, slip. op. at 1 (Fed. Cl. Jan. 12, 2015).

Plaintiff commenced this action on February 9, 2015. After the government moved to
dismiss this action and plaintiff failed to timely respond to the government’s motion, the Court
issued an Order to Show Cause on May 4, 2015. The Court has received no further
communication from plaintiff relating to the matter cited in the complaint. Plaintiff’ s only
communication with the Court since ﬁling his complaint consists of a mailing of notes and a
newspaper clipping unrelated to this matter. Plaintiff has not met the obligation to diligently
pursue litigation and prosecute the case, and so this claim is subject to dismissal pursuant to Rule
41(b). RCFC 41(b). Nevertheless, because of plaintiff’s pro se status, the Court will look
beyond plaintiff’s failure to prosecute and address the grounds for dismissal set forth in the

government’s motion to dismiss.

B. Plaintiff’s Complaint Is Dismissed for Lack of Subject-Matter Jurisdiction

Notwithstanding the shortcomings of plaintiffs pleadings, the Court recognizes that he is
proceeding pro se, and so, plaintiff is “not expected to frame issues with the precision of a
common law pleading.” Roche v. US. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987).
Furthermore, the Court has an independent obligation to determine whether subj cot-matter
jurisdiction exists to consider a matter. Henderson ex rel. Henderson v. Shinseki, 562 US. 428,
428 (2011) (“[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”). Thus, the Court will liberally construe

plaintiffs complaint to determine whether the Court possesses subj ect-matter jurisdiction over

plaintiffs claim. See Upshaw v. United States, 599 F. App‘x 387, 388 (Fed. Cir. 2015).

Plaintiffs complaint describes an amusement park ride, but does not base the claim on
any cognizable legal ground. The government, therefore, argues that the complaint should be
dismissed because it does not properly invoke the Court’s subject-matter jurisdiction. Def. Mot.
at 4. The government asserts that it can “only guess which facts or causes of action Mr. Jones
has attempted to plead. And, Mr. Jones has failed to plead a substantive source of law that
creates a right to recover money damages from the Government. Counsel for the Government

cannot identify any source of law upon which Mr. Jones attempts to rely.” Def. Mot. at 5-6.

The Court agrees. Even when Viewing the complaint in the most deferential light
possible, as is owed to pro se litigants, and construing all factual allegations in the complaint to
be true, plaintiffs cursory complaint, as the government notes, fails to articulate a claim that is
within this Court’s jurisdiction to decide. Therefore, the Court lacks jurisdiction and must

dismiss plaintiffs complaint.
C. Plaintiff’s Complaint Fails to State a Claim for Relief

Lastly, the government argues that plaintiffs complaint should be dismissed under RCFC
l2(b)(6) for failure to state a claim because plaintiffs complaint does not articulate a grievance
and does not allege any facts implicating a money-mandating statute, regulation, or contract that

entitles plaintiff to relief. Def. Mot. at 6.

Rule 8 requires that, at minimum, a complaint contain a statement of the ground for the
Court’s jurisdiction, a statement of the claim showing plaintiff is entitled to relief, and a demand
of the relief sought. RCFC 8. Plaintiff’ s cursory complaint does not satisfy the requirements of
RCFC 8. The complaint simply describes the rotor and appears to seek $50,000 from the Export
Import Bank of the United States. See generally Complaint. Therefore, the complaint does not
“contain sufﬁcient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.” Iqbal, 556 US. at 678.

D. Plaintiff’s Motion for Leave to Proceed In F orma Pauperis Satisﬁes the
Statutory Requirement

Plaintiff has also ﬁled an application to proceed in forma pauperis, alleging that he lacks
the ﬁnancial resources to pay the Court’s ﬁling fee. See generally Pl. Mot. to Proceed In F orma
Pauperis. This Court may authorize commencement of a suit without prepayment of fees when a
person submits an afﬁdavit including a statement of all assets, a declaration that he or she is
unable to pay the fees, and a statement of the nature of the action and a belief that he or she is
entitled to redress. See 28 U.S.C. § 1915(a)(1). Due to the Court’s summary disposition of this
case, the Court ﬁnds that plaintiff satisﬁes the requirements to proceed in forma pauperis for the

purpose of resolving the government’s motion to dismiss.

Plaintiff’s application to proceed in forma pauperis is GRANTED for the sole purpose of

ruling on the government’s motion to dismiss and the Court’s ﬁling fee is waived.

V. CONCLUSION

For the foregoing reasons, the Court: (1) GRANTS the government’s motion to dismiss;
and (2) GRANTS plaintiff’s motion to proceed in forma pauperis.

The Clerk’s Ofﬁce is directed to ENTER ﬁnal judgment in favor of defendant,
DISMISSING the complaint. No costs.

IT IS SO ORDERED.

 

