        lJntbt @nftr! btstes @ourt                                  of   /eDrrsl @[sfms
                                          No. 15-794C
                                     (Filed: July 19,2016)


  ANDREWR. SPENGLER,                                         Ke).words: Pro Se Plaintiff; Motion to
                                                             Dismiss for Lack of Subject Matter
                        Plaintifl                            Jurisdiction; RCFC 12(bXl); Trusts; 31
                                                             U.S.C. $ 1321;Transfer;29 U.S.C.
                                                             $ 1631.

  THE LTNITED STATES OF
  AMERICA,
                                                                                    FILED
                        Defendant.
                                                                                  JUL I   I 2lrc
                                                                                .!b?-i?,&lif.
Andrew R. Spengler, Fort Worth, TX, Plaintiff, pro se.

Alexis J. Echols,Trial Attomey, with whom were Benjamin C. Mizer, Principal Deputy
Assistant Aftomey General, Robert E. Kirschman, -Ir., Director, artd Deborah A. Bynum,
Assistant Director, Commercial Litigation Branch, United States Department of Justice,
Washington, DC, for Defendant.

                                OPINIONAND ORDER
KAPLAN, Judge.

        This case is cunently before the Court on the govemment's motion to dismiss for
lack ofsubject matter jurisdiction pursuant to Rule 12(b)(1) ofthe Rules of the Court of
Federal Claims (RCFC). For the reasons set forth below, the govemment's motion to
dismiss is GRANTED and this case is DISMISSED without prejudice.

                                      BACKGROUND

        The pro se plaintiffin this case, Andrew R. Spengler, is cunently serving a
fifteen-year sentence in the Federal Correctional Institution in Fort Worth, Texas (FCI
Fort Worth), after having been convicted on November 29, 2007 of ,.Conspiracy to
Deprive Civil Liberties and Deprivation of Civil Rights under Color of Law." Def.'s Mot.
to Dismiss (Def.'s Mot.) at 1, Doc. No. 14. His projected release date is March 16,2020.
Id.

        In a complaint filed on July 27,2015, Mr. Spengler claims that he is a beneficiary
of the Commissary and Welfare Fund for federal prisoners (hereinafter ..the Commissary
Fund" or "the Fund"), which is designated as a "trust" fund pursuant to 31 U.S.C.



                        uspsrRAcKrNGr 9114 9999 4431 3548 1061 70
                        &CUSTOMER       Fo' T?cLhs or hqumes oo to USPS   cor
                        RECEIPT         o!   crl   1,80&222-181J.
 $ 1321(a)(22) (2012). Compl. at l, Doc. No. 1. According to Mr. Spengler, the United
 States, through the Bureau ofPrisons (BOP), breached its fiduciary duties to inmates by
 using monies from the Commissary and Welfare Fund to implement a new computer and
 telephone system. Those systems--designated the Trust Fund Limited Prisoner Computer
 System (TRULINCS) and the Trust Fund Prisoner Telephone System (TRUFONE)
 respectively-may be used by inmates to communicate electronically and by telephone
 with persons outside ofthe prison. See id. flfl 34, 36.1

         The gravamen of Mr. Spengler's cornplaint is that the United States has violated
its hduciary obligations and engaged in disloyalty to the Fund's beneficiaries because-
among other reasons-prison authorities monitor TRULINCS and TRUFONE
communications for security purposes, and the contents of the communications may be
used for investigative, disciplinary, and law enforcement purposes. Id. fltT 30, 34,39, 40.
His complaint also challenges the use of monies in the Fund for a number of other
puposes, including but not limited to the implementation of an electronic law library and
the purchase ofa variety of items such as fingerprint scanners for use at TRULINCS
terminals, mailing labels, and mp3 players that remove features to meet security
concems. Id. flfl 87, 103, 107, 134,135. Mr. Spengler further complains about allegedly
unlawful, discriminatory, and improper actions by staff at FCI Fort worth with respect to
their operation of the commissary and their alleged misuse of Fund monies. Id. lffl 209,
219. In addition, Mr. spengler claims that the United states has violated its frduciary
duties to him by failing to provide him with an accounting ofthe Fund's expenditures. Id.
fl   168.

         As relief, Mr. Spengler seeks an order directing the United States to provide an
 accounting of the Fund and an injunction that, among other things, would privent the
govemment from disseminating TRULINCS data to law enforcement and suspend
TRULINCS mailing label requirements. Id. fl'll259, 26142. He also requestsihat the
govemment be ordered: l) to destroy all personal data collected through the TRULINCS
program; 2) to restore monies from the Commissary Fund that he claims have been
wrongly diverted to pay the costs ofconfinement rather than used for the prisoners'
benefit; 3) to restore fi.rnds spent in connection with the TRULINCS programs; and 4) to
provide an award of damages for the loss ofrevenue that he alleges would have been
eamed had the monies in the Fund not been diverted to these and other alleeedlv
improper purpose s. ld. lff! 272-73.

                                      DISCUSSION

         As noted above, the govemment has moved to dismiss Mr. Spengler,s complaint
^      _
for lack of subject matter jurisdiction. It argues that jurisdiction oveiMr. spengler,'s


' According to BoP Program statement 4500.11, TRULINCS "provides iffnates with a
computer system that does notjeopardize the safety, security, orderly operation of the
gongcJionat facility, or the protection of the public or staff." See Trust Fund/Deoosit
Fund Manual, U.S. Department of Justice (April 9,2015), www.bop.g"r/WW
progstat/4500011.pdf; Def.'s Mot. App. ar 130.
breach  offiduciary duty claims does not lie under the Tucker Act,28 U.S.C. $ 1a91(a)(1)
(2012), because those claims "sound in tort." Def.'s Mot. at 6. In response, Mr. Spengler
argues that he is not asserting a tort claim but rather a claim for money damages that
arises out of a statute-31 U.S.C. $ 1321(a)(22)-which classifies the Commissary Fund
as a "trust," and out ofDepartment ofJustice Circular No. 2244, which established the
operating procedures for prison commissaries. Pl.'s Resp. to Def.'s Mot. to Dismiss (Pl.'s
Resp.) at 3-5, Doc. No. 16. He identifies the latter as the "trust instrument." Compl.,lf 5.
He further asserts that the statute gives rise to a claim for money damages for breach of
trust under the reasoning of United States v. Navajo Nation, 537 U.S. 488, 506 (2003)
Ngyqjq!, and related cases. For the reasons set forth below, the Court concludes that it
lacks jurisdiction over Mr. Spengler's claims because the statute and regulations upon
which he relies do not supply an independent source ofa substantive right to money
damages that can serve as the basis for this Court's exercise of jurisdiction under the
Tucker Act.

I.       Legal Standards

         A.     Motion to Dismiss Under RCFC 12(bX1)

        In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor of the plaintiff. Trusted Inteeration. Inc. v. United States, 659 F.3d I 159, I163
(Fed. Cir. 201 1). The plaintiffbears the burden ofestablishing subject matter jurisdiction
by a preponderance oftle evidence. Brandt v. United States, 710 F.3d 1369, 1373 (Fed.
Cir. 2013). It is well established that complaints that are filed by pro se plaintiffs are held
to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kemer,
404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs must persuade the court
that jurisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl. 497,
499 (2004), affd,98 Fed. App'x 860 (Fed. Cir. 2004).

         B.    Tucker Act Jurisdiction in Statutorv Trust Cases

         Pursuant to the Tucker Act, this Court is granted jurisdiction to "render judgment
upon any claim against the United States . . . for liquidated or unliquidated damages in
cases not sounding in tort." 28 U.S.C. $ 1a91(a)(l). The Tucker Act waives the sovereign
immunity of the United States to allow a suit for money damages, Mitchell v United
States, 463 U.S. 206, 212 (1983) (Milqhell II), but it does not confer any substantive
rights on a plaintiff, United States v. Testan ,424lJ.S. 392,398 (1976). Therefore, a
plaintiff seeking to invoke the court's Tucker Act jurisdiction must identiS an
independent source ofa 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).

        An independent source ofa substantive right to money damages may be found
where a statute "establishes specific fiduciary or other duties" and may...fairly be
interpreted as mandating compensation for damages sustained as a result of a breach of
the duties [the governing law] impose[s]."'Navaio I, 537 U.S. at 506 (quoting Mitchell
 II, 463 U.S. at 219) (alterations in original). To establish that the United States has
 accepted a particular fiduciary obligation, "[a plaintiffl must identiry shtutes or
 regulations that both impose a specific obligation on the United States and'bear[ ] the
 hallmarks ofa conventional fiduciary relationship."' Hopi Tribe v. United States, 782
 F.3d662,667 (Fed. Cir. 2015) (quoting United States v. Navajo Nation, 556 U.S. 287,
 301 (2009) (Ne:lajs!) (alteration in original).

 il.     Application of Standards

         The Commissary and Welfare Fund was created in 1932, tvto years after the U.S.
Department of Justice (DOJ) authorized the establishment of commissaries at all
correctional institutions under BOP's jurisdiction. See Department of Justice Circular
No. 2244, Rules Goveming the Control of Prisoners at the Several Penal and Correctional
Institutions (Jan . 1 , 1932) (hereinafter "Circular No. 2244"); see also Office of Legal
Counsel, Fiduciary Oblisations Regarding Bureau of Prisons Commissary Fund, 19 Op.
O.L.C. 127 (1995) (citing Departrnent of Justice Circular No. 2126, Rules Govemine the
Control ofPrisoner's Funds at the Several Penal and Conectional Institutions (Aug. l,
1930)). The purpose of tlle commissaries is to provide inmates with the opportunity to
purchase items such as hygiene products, postage supplies, over the counter medicine,
and snacks. See Fiduciarv Oblisations Regardins Bureau ofPrisons Commissary Fund,
supra, at +2. Circular No. 2244 established the operating procedures for the
commissaries. It also created separate U.S. Treasury accounts for the "Commissary and
Welfare Fund" and for the "Prisoners Trust Fund" at each BOP correctional facility. See
Circular No. 2244.

        The Commissary and Welfare Fund consists of revenues generated by the sale of
goods at prison commissaries. Compl. tf 9. The Prisoners Trust Fund, on the other hand,
consists of personal monies prisoners eam working in the prison and money that is sent to
them by family, friends, or other sources while they are incarcerated. See Def.'s Mot.
 App. at 12, 18, 68,79,87-88. Inmates may use the money in their personal trust accounts
to pay for items purchased in the commissary. See id. at 18,45.

        In 1934,         of the Permanent Appropriation Repeal Act, both the prisoners
                   as part
Trust Fund and the Commissary Fund were classified as trust funds. See pub. L. No. 73-
473,$20(a),48Stat. 1224,1233(r934)(codifiedat3l U.S.C. g t32l(a)(21){22).
Pursuant to that Act, monies that "are received by the United States Govemment as
trustee" for the funds "shall be deposited in an appropriate trust fund account in the
Treasury." Id. $ 1321(bxl). Further, with exceptions not relevant here, .,amounts
accruing to these funds are appropriated to be disbursed in compliance with the terms of
the trust." Id.

         As noted, Mr. Spengler argues that this Court has jurisdiction over his claims for
damages because the Commissary Fund is a statutory trust, which he alleges imposes
fiduciary duties on BOP with respect to its administration of the Fund. But while the
Commissary Fund is classified as a "trust" under 31 U.S.C. $ l32l (a) (as are some ninety
other diverse funds), it is well established that such classification alone is not sufficient to
establish that congress intended to impose specific fiduciary obligations on the United
 States that would subject   it to a claim for monetary damages for their breach. See Hopi
 Tribe,782F.3dat667 (citing United States v. Mitchell,445 U.S. 535,54142 (1980)
 (Mitchell I) (holding that the General Allotment Act, which stated that the United States
 was to hold land "in trust for the sole use and benefit ofthe Indian," created only a
 "limited trust relationship" that did not establish a fiduciary duty to manage resources on
 the land giving rise to a claim for money damages)); Navajo I, 537 U.S. at 508, 511
 (holding that coal mining regulations did not impose fiduciary duties on the United
States, despite the fact that the coal itself was held in trust for the Navajo Nation); Unitec
States v. Jicarilla Apache Nation, 564 U.S. 162, 174 (201 1) (noting that "Congress may
style its relations with the Indians a'trust' without assuming all the fiduciary duties of a
private trustee, creating a trust relationship that is'limited' or'bare' compared to a trust
relationship between private parties at common law"). Accordingly, the mere designation
of the Commissary and Welfare Fund as a "trust" is not sufficient to establish
congressional intent to subject the United States to claims for monetary damages based
on the improper expenditure of monies in the Fund.

         Further, the legislative history of $ 1321 does not reveal congressional intent to
 impose any particular fiduciary duties on the govemment with respect to any of the funds
 designated as "trust" funds under that statute. The general purpose of tlre Permanent
 Appropriation Repeal Act was to reassert congressional control over the appropriations
 process by abolishing permanent appropriations. H.R. Rep. No. 1414, 73d Cong., 2d
 Sess. 2 at 2 (1934). Section 20(a) (which is codified at g 1321) established exceptions to
 the policy against permanent appropriations by denominating certain permanent accounts
 as "trust funds" for accounting purposes in order to prevent the Compholler General from
 exercising control over those accounts. See Fiduciarv oblisations Resardins Bureau of
Prisons Commissary Fund, supra, at *6. There is no reason to believe that when Congress
designated the commissary Fund as a trust for this specialized purpose it also intended to
subject the United States to liability for money damages for breach offiduciary
obligations. See Mitchell I,445 U.S. at 544 (examining the legislative history of the
General Allotment Act and concluding that the purpose ofthe act was not to give the
government control over the use ofland and subject it to money damages, but rather.to
prevent alienation ofthe land and to ensure that allottees would be immune from . . . state
taxation"); see also Franklin Sav. Corp. v. United States, 56 Fed. C\.720,752 (2003)
(finding that the banking statutes in question were intended to strengthen enforcement
powers and civil sanctions, and to curtail investments that pose unacceptable risks; the
purpose of the statutes did not involve the govemment acting as anything other than a
regulating body).

        In addition, there is nothing in either issuance that indicates an intent by the
United States to take on specific fiduciary obligations in the administration ofthe
Commissary Fund. According to BOP Program Statement 4500.11, supra, the purpose of
the commissary Fund is "to provide prisoners the privilege of obtaining merchandise and
services either not provided by the Bureau or ofa different quality than provided by the
Bureau." Def.'s Mot. App. at 18. As contrasted with the monies held in the prisoner's
Trust Fund, the monies in the Commissary Fund do not in any sense belong to the
prisoners; in fact, Circular No. 2244 expressly denies inmates any entitlemint to the
eamings of the commissary. circular No . 22441122; cf. Salter v. united States, 1 l9 Fed.
 Cl.359,364 (2014) (characterizing    as "reasonable" the argument that  "the creation ofa
 trust account to hold the funds of an inmate [statutorily recognized by 3 I U.S.C.
 $ l32l(aX2l)l and pusuant to [Circular No. 2244] imposes fiduciary responsibilities on
 the BOP").

         Finally, BOP manages the Commissary Fund operations and controls how the
funds are dispersed without any involvement by the prisoners. Compl. fl 11. Circular
No.2244 provides that the monies in the Commissary Fund may either be used for
operation of the commissary, or, with the approval of the BOP Director, "may be
disbursed on written order ofthe Warden for any purpose accruing to the benefit of the
inmate body, as a whole, such as amusements, education, library, or general welfare
work." Circular No.2244ffi 16, 41. This language supports the notion that-where the
funds are to be used for purposes other than the operation of the commissary-BOP will
apply the funds to purposes that benefit the overall prison population. But that proviso in
and of itself provides no indication either that the United States intended to take on any
general or specific fiduciary obligations in its administration of the Commissary Fund, or
that the moneys in the fund could only be used in a manner that promotes the best
interests of the inmates, as would be the case with a traditional trust. And unlike the
Indian trust cases, which arise in the context of the historical "general trust relationship"
between the United States and the Indian population, there is no historic trust relationship
between the United States and the inmates of its prisons. See Mitchell II, 463 TJ.S. at225.

         In his Supplemental Memorandum, Mr. Spengler cites the Sixth Circuit's decision
 in Washineton v. Reno, 35 F.3d 1093 (6th Cir. 1994), for the proposition that the United
 states has taken on fiduciary duties toward the inmates with respect to its administration
 of the Commissary Fund. Pl.'s Suppl. Br. at2,Doc. No. 29. In that case, the plaintiff
 inmates challenged BoP's use of the commissary Fund to finance certain salaries and
 other expenses connected to the installation and operation ofa new phone system to
 replace the practice of permitting inmates to place an essentially unlimited number of
 collect calls to persons outside of the prison. Reno, 35 F.3d at 1095. The new system
 afforded the inmates the opportunity to purchase direct-dial phone credits at the prison
 commissary, but only once a week, and limited conversations to those with individuals
named on a list ofpeople approved by correction officials. Id. at 1094. The plaintiffs
claimed that this use of the Commissary Fund violated 3l U.S.C. g 1321(b), which, as
noted above, provides that "[a]mounts accruing to [the Commissary Fund] . . . are
appropriated to be disbursed in compliance with the terms of the trust,,-i.e., the terms of
 Circular 2244.Id. at 1101. In particular, they argued that any expenditure from the Fund
must be for a "purpose accruing to the benefit ofthe inmate body, as a whole," as the
Circular provides, and contended that the new phone system did not meet that
requirement. Id. In its decision, the sixth circuit held that the inmates had standins to
challenge the allegedly unlawful expenditures to the extent that rhey could show th'at
BoP's method of funding the new system "cause[d] them injury that would be redressed,
in a non-speculative way, by an order precluding use of Fund money in this way." Id. at
1102.

        The critical distinction between Reno and this case, however, is that the relief
requested in Reno was purely injunctive in nature. Id. at 1095. The plaintiffs did not
request, as does Mr. Spengler, an award of damages. The Sixth Circuit therefore had no
occasion to address the issue before this Court, which concems whether Congress-in
characterizing the Commissary Fund as a "trust" for purposes of 31 U.S.C. $ 1321-
intended to impose specific fiduciary obligations on the united States that would subject
the United States to a claim for monetary damages for its breach. It is not remarkable
that-assuming a plaintiff has standing-a district court has jurisdiction to enjoin
govemmental expenditures that violate statutory limitations. But absent a money-
mandating source of law, this Court lacks jurisdiction to consider a suit (like Mr.
Spengler's) which seeks an award of damages for similar violations. And it
conespondingly lacks jurisdiction over Mr. Spengler,s claims for injunctive relief, as
such claims are not incidental to a claim for monetary reliefthat is properly before the
Court. See James v. Caldera, 159 F.3d 573,580 (Fed. Cir. 1998) (although limited
equitable reliefis sometimes available in Tucker Aot suits, any such relief "must be 'an
incident ofand collateral to' a money judgment") (quoting 28 U.S.C. g la91(a)(2)).

III.    Transfer

        Pursuant to 28 U.S.C. g 1631 (2012), whenever a court finds that it lacks
jurisdiction over an action, "the court shall, if it is in the interest ofjustice, transfer such
action . . . to any other such court in which the action . . . could have been brought at the
time it was filed or noticed." According to the government, it would not be appiopriate to
transfer Mr. Spengler's case to a district court for consideration ofhis claimJfor
injunctive reliefbecause Mr. Spengler failed to exhaust his administrative remedies as
required by 42 U.S.C. g 1997e(a) (2012).lr contends that,..[a]lthough Mr. Spengler
pursued administrative remedies related to the claims at issue in this lawsuit, he did not
pursue his claims through the final appeal stage." Def.'s Mot. at g. The Court agrees.


_      section 1997e(a) ofrirle 42 ofthe U.s. code provides thar "[n]o action shall be
brought with respect to prison  conditions under section l9g3 of this title. or any other
Federal law, by a prisoner confined in anyjail, prison, or other correctional facility until
such administrative remedies as are available are exhausted." "Exhaustion in cases
covered by g 1997e(a) is now mandatory.,' porter v. Nussle, 534 U. S. 516, 524 (2002).
The exhaustion requirement "applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and wheiher they allege excessive
force or some other wrong." ld. at 532. This requirement has been applied      iisuits
regarding all aspects of incarceration, including claims ofovercrowding, negligent
medical care, and improper debiting of inmate trust accounts (the prisoner Trust Fund).
S_!eNapier v. Laurel Cty., 636 F.3d 2lg (6th Cir. 2015); Williams v. Metro. Det. Ctr.,
41 8F. Supp. 2d 96 (E.D.N.Y. 2005); Johnson v. Ozmint, 567 F. S;pp
2008). Further, the Supreme court has held that "congress meant to require procedural
exhaustion regardless ofthe fit between a prisoner's prayer for relief and the
administrative remedies possible." Booth v. Churner, S:Z U.S. 731,739 (2001).

       Mr' Spengler's suit alleges violations oflaw in connection with the system that
RoP has implemented to permit inmates to communicate, either electronicaily or by
phone, with the outside world. See compl. 117. His complaint also includei
                                            fl                                claims
about various other conditions ofhis confinement, including access to law libraries,
                                                                                     the
 methods by which sales are conducted at the commissaries, limitations on his ability to
 send letters by U.S. Mail, and the alleged obstruction of inmates' ability to communicate
 with family and friends. See Compl. Jf'lf 92, 116,14546.In short, this action is one
 "brought with respect to prison conditions" within the meaning of 42 U.S.C. $ 1997e(a),
 and is therefore subject to its exhaustion requirement.

        To satis$ the exhaustion requirement, "prisoners must complete the
administrative review process in accordance with the applicable procedural rules" defined
"by the prison grievance process itself." Jones v. Bock, 549 U.S. 199,218 (2007). For the
purposes ofthis case, the applicable procedural rules are set forth in 28 C.F.R.
$$ 542.10-.19 and in the BOP Program Statement 1330.18, entitled "Administrative
Remedy Program." See Pl.'s Resp. App. Ex. A. BOP's Administrative Remedy Program
is supplemented by FCI Fort Worth Local Policy 1330.13 (E) (Fort Worth Local Policy),
which describes the specific procedures inmates must follow at FCI Fort Worth. See Pl.'s
Resp. App. Ex. B.

          Under the applicable rules, with exceptions not relevant here, an inmate who
 wishes to raise concerns about any aspect ofprison life is required to first present their
 concerns informally to staff at the prison on a form prescribed by BOP. 28 C.F.R.
 $ 542.13(a); Pl.'s Resp. App. Ex. B at 23. According to FCI Fort Worth Local policy, the
 deadline for completion of informal resolution and for the inmate to file a formal
 institutional complaint is within twenty days "following the date on which the basis for
 the Request occurred." Pl.'s Resp. App. Ex. B at 23; see 28 C.F.R. g 542.14(a). A final
 response to a formal complaint at the institutional level, signed by the prison's Warden,
 "will be delivered to the inmate within [twenty] calendar days of the date the request was
received." Pl.'s Resp. App. Ex. B at24; see 28 C.F.R. $ 542.18. An inmate may then file
an appeal of the warden's decision to the Regional Director within twenty calendar days
ofthe date ofthe institution's signed response, and the Regional Director has thirty
calendar days to respond. 28 C.F.R. gg 5a2.15(a), 542.18; pl.'s Resp. App. Ex. B at 24. If
the inmate is not satisfied with the Regional Director's response, he may-within thirty
days-file a Central Office Appeal.28 C.F.R. g 5a2.15(a) (Title 28 uses the terms
General Counsel and Central Oflice interchangeably); Pl.'s Resp. App. Ex. B at24.TIte
Central Offrce then has forty days to respond to the appeal. 28 C.F.R. $ 542.1g. Ifthe
inmate does not receive a response to a request at any level within the time allotted, the
inmate may consider the absence of a response to be a denial. 28 C.F.R. $ 542.1g.
"Appeal to the General Counsel is the final administrative appeal." 28 C.F.R.
$ 542.15(a); Pl.'s Resp. App. Ex. A at 9.

         The rules provide that the time limits for prison authorities to respond to an
inmate's grievance set forth above may be extended by twenty days at the institution
level, thirty days at the regional level, or twenty days at the Central Offrce level. 2g
C.F.R. $ 542.18. Inmates must be informed of a response time extension in writing. Id.
Particularly significant for the purposes of this case, at any point in the process,
submissions may be rejected and retumed to inmates without response if the submission
does not meet BoP requirements. Id. $ 542.17. In those circumstances, if the defect is
correctible, the inmate is given notice ofthe defect and an opportunity to correct and
resubmit the appeal. Id. $ 542.17(b). Ifthe inmate is not given the opportunity to correct
the defect and resubmit, then the inmate may appeal the rejection. Id. $ 542.17(c).

        According to Carolyn Lanphear, an Administrative Remedy Specialist for BOP,
Mr. Spengler filed several formal administrative remedy requests related to the claims in
this case, but those requests were defective because they lacked required information or
documentation, or because they were filed at the wrong level in the administrative
process. Def.'s Mot. App. 8x.4, Lanphear Decl. tTfl 1, G9. She further states that Mr.
Spengler did not take advantage of the opportunities he was provided to correct and
resubmit his defective requests. Id. tftf 7-9.

         Mr. Spengler does not take issue with Ms. Lanphear's description of the specific
history ofhis requests, but complains generally about the prison's allegedly frequent
failure to comply with the regulatory response deadlines and other procedural
requirements. Pl.'s Resp. at 9. Specifically, he claims that FCI Fort Worth: 1) failed to
respond to informal requests; 2) failed to respond to formal requests within the required
administrative rernedy timeframe; 3) failed to issue "remedy receipts" that identiff the
date on which a formal complaint has been filed, resulting in the improper extension of
the prison's response deadline; and 4) failed to tirnely provide inmates with copies of
responses, resulting in the rejection of appeals at higher levels. Id. at 9-l 1. But even
assuming the accuracy of some or all of these general allegations, he has not established
that they prevented him from completing the administrative process with respect to the
breach of trust claims he seeks to bring before this Court.

        The first formal complaint Mr. Spengler filed conceming a breach of trust
(Remedy ID 77 5934-Rl) was submitted at the regional level on April 17,2014. Def.'s
Mot. App. Ex. 4, Lanphear Decl. fl 7; Compl. App. at 92. That complaint was rejected
because Mr. Spengler failed to provide either a copy of his institution's Administrative
Remedy Request form or a copy of the Warden's response. Def.'s Mot. App. Ex. 4,
Lanphear Decl. tf 7. In accordance with the procedural rules set forth above, Mr. Spengler
was given time to cure these deficiencies by submitting the relevant documents, but he
did not do so. Id. He therefore failed to exhaust his remedies with respect to Remedy ID
77s934-R1.

        According to Ms. Lanphear, Mr. Spengler's second relevant administrative
remedy request (Remedy ID 776703-F1\-filed on April 24,2014 at FCI Fort Worth-
complained "that inmates were being charged for mailing labels for [TRULINCS]" and
claimed "extortion because inmates are beneficiaries ofthe trust fund." Id. tf 8. This
request was rejected on the grounds that Mr. Spengler failed to provide specific
information about the request. Id. fl 8; Compl. App. at 93. Instead of supplying additional
information and resubmitting his request at the institutional level, however, Mr. Spengler
filed two appeals to the Central Office level (Remedy ID 776703-Al and Remedy ID
776703-A2). Compl. App. at94,98-99. Both ofthese appeals were rejected because they
had been filed at the wrong level and to the wrong oflice. Id. at 95, 100; Def.'s Mot. App.
Ex. 4, Lanphear Decl. fl 8. Mr. Spengler was advised that he needed to resubmit his
request at the institutional level and procure the Warden's review and response before



                                            9
appealing. Compl. App. at 95, 100; Def.'s Mot. App. Ex. 4, Lanphear Decl. fl 8. He did
not do so. Def.'s Mot. App. Ex. 4, Lanphear Decl. fl 8.

         Another administrative remedy request regarding breach of trust funds was filed
at the regional level on July 17,2014 (Remedy ID 790971-Rl) and rejected for failure to
aftempt informal resolution prior to submitting an administrative remedy or failure to
provide evidence of such informal resolution. Id. fl 9; Compl. App. at 103, 105. Again,
Mr. Spengler did not resubmit his rejected claim, as required by the applicable
regulations. Def.'s Mot. App. 8x.4, Lanphear Decl. flfl 7, 9.

         In short, Mr. Spengler has failed to meet his burden of demonstrating exhaustion
 of administrative remedies with respect to the claims made in this case. Because Mr.
 Spengler's failure to exhaust administrative remedies would deprive the district court of
jurisdiction over Mr. Spengler's claims, a transfer of the case to district court pursuant to
28 U.S.C. $ 163 I would be inappropriate. See Jackson v. United States, 80 Fed. Cl. 560,
 565 (2008) (declining to transfer the case to district court where plaintiff had failed to
exhaust his administrative remedies within the Social Security Administration with
respect to each ofhis claims for social security benefits); A),res v. United States, 67 Fed.
 Cl.776,779 (2005) (declining to transfer tort claims to district court where plaintiff
failed to exhaust administrative remedies as reouired bv Federal Tort Claims Act).

                                      CONCLUSION

         On the basis of the foregoing, the govemment's motion to dismiss pursuant to
Rule l2(b)(1) is GRANTED, and this case is DISMISSED without prejudice. The Clerk
is directed to enter judgment accordingly.

        IT IS SO ORDERED.




                                                      ELAINED. KAPLAN
                                                      Judge




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