                                                                                        FILED
                                                                                       DEC - I 2015
                                ORIGIg$Al.
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                                          Pro Se                                     'g'?*1?'&lPnl,
                                        No. 15-821C
                      (Filed: December 9,2015 lNot For Publication)

                                             )   Keywords: Pro Se Complaint; Subject
 TERESITA CANUTO,                            )   Matter Jurisdiction: Motion to
                                             )   Dismiss: Motion to Amend
                         Plaintifi           )   Complaint; Motion to Supplement
                                             )   Complaint
        v.)
                                             )
 THE UNITED STATES OF           AMERICA,     )
                                             )
                         Defendant.          )
                                             )


                                 OPINION AND ORDER

       Cunently before the Court are the government's motion to dismiss under Rules of
the Court ofFederal Claims (RCFC) 12(b)(1) and l2(bX6), ECF No. 7, and several
motions filed by Plaintiff seeking leave to amend and/or supplement her complaint, ECF
Nos. 9, 11, 13. For the reasons set forth below, the govemment's motion to dismiss is
GRANTED and Ms. Canuto's pending motions are DENIED.I

                                       BACKGROUND2

       The p1q se   Plaintiffin this
                                  case is Teresita Canuto. She filed her original
complaint in this Court on August 3, 2015, ECF No. 1; and on September 10, 2015, she
filed a supplemental complaint by leave of the Couft, see ECF No. 6.

        In Ms. Canuto's complaint and supplemental complaint, she claims that on
several occasions between October 2014 and August 2015, she was sexually assaulted by
members ofthe United States armed forces, who allegedly entered her apartment through



I The govemment has also filed a Motion for Leave to File
                                                          [an] Out-of-Time Response to
Plaintiff s Motion to File [a] Second Supplemental Complaint, ECF No. 15, which is
DENIED as moot.
2
  These facts are based on assertions in Plaintiff s complaint and supplemental complaint,
which the Court accepts as true solely for purposes of ruling on the pending motion to
dismiss. For purposes of background, the Court also includes jurisdictional facts drawn
from the government's motion.
a hole in the ceiling, drugged her, and assaulted her while she was asleep.3 Compl. at 5-8
.lf$2-9; Suppl. Compl. at 1nn24,4 tf 9. According to Ms. Canuto, these assaults
violated her rights under the Fourth and Fourteenth Amendments to the Constitution.
Compl. at 1-2. Further, she cites 18 U.S.C. $242 and 42U.5.C. $ 1983 as bases fot
relief, apparently on the grounds that the assaults "[d]epriv[ed] [her] of rights under color
of law." Id. at 2. Finally, Ms. Canuto appears to allege that, in the course of these
assaults, U.S. armed forces personnel took her private property without providing
compensation, thus violating the Fifth Amendment.a Id. at 122n 56.

        Before filing her complaint in this case, Ms. Canuto previously filed another case
alleging similar facts in the Cou( of Federal Claims. See Canuto v. United States,
No. 15-cv-410, 2015 WL 1926375 (Fed. Cl. Apr.27,2015). In that case, Ms. Canuto
sought to base her cause ofaction on the Federal Tort Claims Act (FTCA). See id. at *2.
The court dismissed the previous case for lack ofjurisdiction under RCFC 12(b)(1),
holding that the Tucker Act expressly excludes tort claims from the jurisdiction of the
Court of Federal Claims. Id. at *2-3 (citing 28 U.S.C. $ 1491).

        Ms. Canuto appealed the dismissal of the previous case, and on appeal she also
raised new legal arguments, which are substantially similar to several ofthe arguments
she seeks to raise here-i.e., that the alleged assaults violated 42 U.S.C. $ 1983 as well as
her rights under the Fourth and Fourteenth Amendments. See Canuto v. United States,
615 Fed. App'x. 951, 952-53 (Fed. Cir. 2015). On September 14,2015, while this case
was pending, the Federal Circuit affirmed and rejected Ms. Canuto's additional statutory
and constitutional theories of recovery. Id.

        On October 2, 2015, the United States moved to dismiss this case under RCFC
12(b)(1) and 12(b)(6). ECF No. 8. A few days later, on October 7, Ms. Canuto moved to
amend her complaint under RCFC 15. ECF No. 9. While the purpose of the amendment
is at best difficult to discem, she apparently seeks to add to this case the same claims that
were dismissed inNo. 15-cv-410. See Pl.'s Mot. for Leave to File [a] lst Am. to the
Pleading tfll 7-9. Ms. Canuto filed a second motion to amend her complaint on December
2,2015. ECF No. 13. Through this motion, she seeks to assert claims on behalfofher
younger brother and two ofher cousins for "personal injuries intentionally inflicted" by




'Specifically, she alleges that these incidents occurred on December 13,2014; March 5,
2015; June 24,2015; August 1, 2015; and on an unspecified date in October 2014.
Compl. at 5'lf 3; Suppl. Compl. at 2-3 fl 6.

a
  In particular, Ms. Canuto claims that "her genetic material or DNA (blood), photos,
clothing, jewelries, communication letters and copies of conespondence received from
the judge ofthe Federal Court, other legal documents, medical records under
seal . . . . [and] scientific discoveries in possible cure for HIV/AIDS, allergies, alzheimer
[sic] disease, cancer, [and] GI problems" were all taken from her apartment. Compl. at
 t22n s6.
agentsofthe United States armed forces.    See Pl.'s Notice of   Mot. for Leave to File [a] 2d
Am. to the Pleading tflJ 8-9.

         In addition to her motions to amend her complaint, Ms. Canuto liled a motion to
file a second supplement to her complaint on November 13, 2015. ECF No. 11. She
wishes to supplement her complaint with allegations of another assault allegedly
committed on September 2,2015. See Pl.'s Notice of Mot. for Leave to File [a] 2d Suppl.
Compl. tf'lf 12-13. As with the other alleged assaults, she claims she was "assaulte[d]
during sleep" by members of the United States armed forces after being "put into [an]
unconscious state through inhalation of sleeping gas." Id. fl 13.

                                       DISCUSSION

I.       Motion to Dismiss for Lack of Subject Matter Jurisdiction Under RCFC
         12(bX1) and for Failure to State a Claim Under RCFC 12(bX6)

         A.        ApplicableStandards

              1    RCFC 12(bxl)

        In deciding a motion to dismiss for lack of subject matter jurisdiction, the court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor ofthe plaintiff. Trusted Integration. Inc. v. United States, 659 F.3d 1159, 1163
(Fed. Cir. 2011). However, the court may also "inquire into jurisdictional facts" to
determine whether it has jurisdiction. Rocovich v. United States,933 F.2d991,993 (Fed.
Cir. 1991). It is well established that complaints filed by pro se plaintiffs (as is this one),
are held to "less shingent standards than formal pleadings drafted by lawyers." Haines v.
Kemer, 404 U.S. 519, 520 (1972). Nonetheless, even ple se plaintiffs must persuade the
Court that jurisdictional requirements have been met. Bernard v. United States, 59 Fed.
Cl. 497, 499 (2004), aff d,98 Fed. App'x 860 (Fed. Cir. 2004).

              2.   RCFC 12(bX6)

        When considering a motion to dismiss for failure to state a claim under RCFC
12(b)(6), the court accepts as true the complaint's undisputed factual allegations and
construes them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S.
662,678 (2009). The court draws all reasonable inferences in favor of the non-moving
party, Sommers Oil Co. v. United States,24l F.3d 1375,1378 (Fed. Cir. 2001); but the
complaint's factual allegations still "must be enough to raise a right to relief above the
speculative level," Bell Atlantic Com. v. Twomblv, 550 U.S. 544,555 (2007). In other
words, the plaintiffs claim must be plausible on its face. Id. at 5701, see also Acceotance
Ins. Cos.. Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). "A claim has facial
plausibility when the plaintiffpleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twomblv, 550 U.S. at 556).
         B.    Anolication of Standards

         As is firmly established, the Court of Federal Claims is a court of "limited
jurisdiction." E.g., Marcum LLP v. United States, 753 F.3d 1380, 1382 (Fed. Cir. 2014).
The "primary statute confening jurisdiction" on the court is the Tucker Act, which grants
the court jurisdiction "to render judgment upon any claim against the United States
 founded either upon the Constitution, or any Act ofCongress or any regulation ofan
 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." Taylor v. United
 States, 303 F.3d 1357, 1359-60 (Fed. Cir. 2002) (quoting 28 U.S.C. $ 1a9l(a)(1)). The
 Tucker Act thus waives the sovereign immunity of the United States to allow a suit for
 money damages, United States v. Mitchell,463 U.S. 206,212 (1983), but it does not
 confer any substantive rights on a plaintiff, United States v. Testan , 424 U.S. 392,398
 (1976). A plaintiff therefore cannot invoke the court's Tucker Act jurisdiction unless she
 can identiff an independent source of a substantive right to money damages from the
 United States arising out ofa contract, statute, regulation, or constitutional provision.
 Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525 F.3d 1299,1306 (Fed. Cir.
 2008); see also Golden Pacific Bancom v. United States, 15 F.3d 1066, 1076 (Fed. Cir.
1994).

        The Court concludes that it lacks subject matter jurisdiction over Ms. Canuto's
statutory claims as well as her claims under the Fourth and Fourteenth amendments. Ms.
Canuto bases her statutory claim on 18 U.S.C. $ 242, a ciminal statute that does not
provide a private right of action or confer a substantive right to money damages. See.
gg, Joshua v. United States,17 F,3d378,379 (Fed. Cir. 199a) ("The [C]ourt [of Federal
Claimsl has no jurisdiction to adjudicate any claims whatsoever under the federal
criminal code."). Moreover, the Court could not assert jurisdiction over Ms. Canuto's
claims even if she had brought them under 42 U.S.C. $ 1983, the civil analog to 28 U.S.C
$ 242, for the district courts have exclusive jurisdiction over claims under the Civil
Rights Act (which includes 42 U.S.C. $ 1983). See Gibson v. United States, 121 Fed. Cl.
215,217 (2015).5 Further, 42 U.S.C. $ 1983 applies only to state actions, not actions
taken by the federal govemment. See Wheedlin v. Wheeler, 373 U.S. 647 ,650 n.2
(1963). Finally, to the extent Ms. Canuto is attempting to assert tort claims under these
statutes, this Court lacks jurisdiction over those claims because the Tucker Act excludes
from its coverage claims "sounding in tort." 28 U.S.C. $ 1491(a)(1)

       The Court similarly lacks jurisdiction over Ms. Canuto's claims under the Fourth
and Fourteenth amendments. Those amendments are not among the "money-mandating"


s
  Likewise, the Court would lack jurisdiction over Ms. Canuto's claims were they
construed as alleging a cause of action under Bivens v. Six Unknown Named Agents of
the Federal Bureau ofNarcotics,403 U.S. 388 (1971). See Brown v. United States, 105
F.3d 621,624 (Fed. Cir.1997) (holding that "the Bivens actions asserted by appellants lie
outside the jurisdiction ofthe Court of Federal Claim" because "[t]he Tucker Act grants
the Court of Federal Claims jurisdiction over suits against the United States, not against
individual federal offi cials").
provisions of the Constitution. See Brown, 105 F.3d at 623 (Fourth Amendment);
LeBlanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995) (Fourteenth Amendment);
see also Canuto, 2015 WL 5315392, at *2 ("[N]either the Fourth nor Fourteenth
amendment mandate money damages.").

         Finally, while the Court generally has jurisdiction over takings claims under the
Fifth Amendment, which provides in pertinent part that "private property [shall not] be
taken for public use without just compensation," U.S. Const. amend. V, Ms. Canuto has
failed to plausibly allege such a claim. Ms. Canuto's takings claim appears to be
premised on the idea that the alleged removal of her belongings by members of the U.S.
armed forces was a taking because it violated the law. See Compl. at I22 n 56 (alleging
that "the Fifth Amendment right of the petitioner was . . .violated" because "[p]rivate
property ofthe petitioner . . . was taken away from petitioner's apartment"). But only an
"authorized" taking can form the basis ofa well-pled takings claim: that is, the alleged
taking must be "chargeable to the govemment" rather than "committed by a govemment
agent acting ultra vires." Del-Rio Drilling Programs. Inc. v. United States, 146 F.3d 1358,
 1362 (Fed. Cir. 1998). Thus, when asserting a takings claim in the Court ofFederal
Claims, the plaintiff must "assume or concede the conectness of the govemment action
that is alleged to constitute the taking." Id. at 1365. It follows that, to the extent a plaintiff
alleges, as does Ms. Canuto, that the govemment's action "constituted a taking because
the action was unlauftl," the plaintiff fails to state a claim. See Stan Int'l Co. v. United
 States, 106 Fed. Cl. 50, 70 (2012) (emphasis added) (citing Lion Raisins. Inc. v. United
 States,4l6 F.3d 1356, 1369 (Fed. Cir.2005)).

il.     Plaintiffs Motions to Amend and Supplement the Complaint
        As noted, Ms. Canuto has filed a second motion to supplement her complaint as
well as two motions to amend her complaint. Under RCFC 15(d), the Court may permit a
party to "serve a supplemental pleading setting out any transaction, occurrence, or event
that happened after the date ofthe pleading to be supplemented." Similarly, under RCFC
 15(aX2), the Court may permit a party to amend its pleading, and should freely give leave
to do so when justice so requires. Nonetheless, the "futility of the amendment" may
justi! denial. See. e.g., Dotcom Assocs. I LLC v. United States, 112 Fed. Cl. 594,598
(2013) (citing Mitsui Foods. Inc. v. United States,867 F.2d 1401, 1403 (Fed. Cir. 1989)).

        In this case, Ms. Canuto's supplemental allegations describe another assault that
follows the same pattern as the assaults described in her original complaint and in her
first supplemental complaint. Her claims related to the alleged assaults are not within the
Court's jurisdiction, for the reasons set forth above. Therefore, Ms. Canuto's motion to
supplement is denied as futile.

       Ms. Canuto's motions to amend her complaint are similarly futile. As to her first
proposed amendment: as described above, Ms. Canuto already asserted the claims she
now seeks to include in this case in her previous case, No. 15-cv-410, which was
dismissed under RCFC 12(bXl) and affirmed on appeal.o Regarding her second proposed
amendment: in the first place, Ms. Canuto lacks standing to litigate claims premised on
personal injuries suffered by her adult relatives. See Animal Legal Defense Fund v.
Ouigg, 932 F.2d 920,925 (Fed. Cir. 1991) (holding that to establish standing to sue, a
plaintiff must show "that he personally has suffered some actual or threatened injury as a
result of the putatively illegal conduct" (quoting Valley Forge Christian College v.
Americans United for Separation of Church and State. Inc., 454 U.S. 464, 472 (1982)).
Beyond that, it is clear that Ms. Canuto seeks to assert tort claims arising from the alleged
injuries to her relatives. See Pl.'s Notice of Mot. for Leave to File [a] 2d Am. to the
Pleading fl 9 (stating that Ms. Canuto "seeks damages for personal injuries intentionally
inflicted" by members of the United States armed forces). As already discussed, the
Tucker Act expressly excludes tort claims from this Court's jurisdiction. See 28 U.S.C.
$ 1a9l(a)(1) (limiting the Court ofFederal Claims' jurisdiction to "cases not sounding in
tort"). Thus, the Court would lack jurisdiction over the claims Ms. Canuto seeks to assert
through her second amendment to the complaint even if she had standing to litigate them.
Accordingly, Ms. Canuto's motions to amend her complaint must be denied.

                                      CONCLUSION

        For the reasons discussed above, the govemment's motion to dismiss (ECF No. 7)
is GRANTED. Because the Court lacks jurisdiction over Plaintiff s statutory claims and
her claims under the Fourth and Fourteenth Amendments, those claims are dismissed
without prejudice. Further, Plaintiffhas failed to state a claim under the Fifth
Amendmsnt's Takings Clause; her Fifth Amendment claim, accordingly is dismissed
with prejudice. Finally, Plaintiff s motions to amend and to supplement her complaint
(ECF Nos. 9, 11, 13) are DENIED.

       The Clerk is directed to enterjudgment accordingly.

       IT IS SO ORDERED.

                                                           e- /5/----
                                                      ELAINE D. KAPLAN
                                                      Judge




o
  As the government points out, Ms. Canuto is also collaterally estopped from adding
these claims to this case, as she aheady had a full and fair opportunity to litigate them in
her prior action. See Def.'s Resp. in Opp'n to Pl.'s Mot. for Leave to File Am. Compl. at
3-4, ECF No. 10 (citing Shell Petroleum. Inc. v.United States, 319 F.3d 1334, 1338 (Fed.
Cir. 2003)).
