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        lJntbe @niteb btates @ourt of JfeDersl @lsims
                                          No. l5-1486C
                                   (Filed: December 23. 201 5)                       FILED
                                                                                   t)EC 2 3   2015
                                   NOT FOR PUBLICATION
                                                                                  U.S. COURT OF
                                                                                 FEDERAL CLAIMS
MILTON THOMAS WALTON,
                                                       Pro Se Complaint; Sua Sponte
                      Plaintiff,                       Dismissal for Lack of Subject Matter
                                                       Jurisdiction under RCFC 12(hX3); Not in
                                                       Interest ofJustice to Transfer Under 28
THE LJNITED STATES,                                    u.s.c. $ 1631.

                      Defendant.



Milton Thomas Walton, Lexington, OK, pro         se.


                          ORDER AND ORDER OF DISMISSAL

CAMPBELL-SMITH, Chief Judge

      On December 8, 2015, plaintiff in the above-captioned case, Mr. Milton Thomas
Walton, appearing p4je, filed a complaint in this court "pursuant to 28 USCA $ 1491
Medical Malpractice." ECF No. 1. On that same date, plaintiff filed an application to
appear in forma pauperis, seeking permission to proceed without paying the court's filing
fee. ECF No. 3.

        For the reasons explained more fully below, the court GRANTS the IFP
 application and finds that it lacks jurisdiction over Mr. Walton's complaint. The court
 further finds that it is not in the interest ofjustice to transfer the complaint to a district
 court. Accordingly, the court sua sponte DISMISSES plaintiff s complaint for lack of
jurisdiction pursuant to Rule 12(h)(3) ofthe Rules ofthe United States Court ofFederal
 Claims (RCFC).

I.     Plaintiff s Application to Proceed In Forma Pauperis

       With his complaint, Mr. Walton also filed an application to proceed in forma
pauperis (IFP). Appl. IFP, Dec. 8, 2015, ECF No. 3. Pursuant to 28 U.S.C. $ 1915, a
"court of the United States" is permitted to waive filing fees and security under certain
circumstances.r See 28 U.S.C. $ l9l5(aX1). As explained by the website maintained by
the court regarding pro se information, "in forma pauoeris" is defined as "[p]ermission to
sue without prepayment offees, given by the court to a person who does not have
financial means to pay." See Pro Se Information, http://www.uscfc.uscourts.gov/pro-se-
information (last visited Dec. 22,2015).

       Mr. Walton's application consisted of    amotion, an affidavit affirming that he has
no access to assets, and his prison account statement dating back to May 24,2015. Id.
Mr. Walton is a prisoner of the Lexington Correctional Center in Lexington, Oklahoma.
See Appl. IFP 1.2 A prisoner who brings suit in a federal court is subject to a limitation
on proceeding in forma pauperis-commonly known as the "three strikes rule."

       In no event shall a prisoner bring a civil action or appeal a judgment in a
       civil action or proceeding under this section if the prisoner has, on 3 or
       more prior occasions, while incarcerated or detained in any facility, brought
       an action or appeal in a court of the United States that was dismissed on the
       grounds that it is frivolous, malicious, or fails to state a claim upon which
       relief may be granted, unless the prisoner is under imminent danger of
       serious physical injury.

28 U.S.C. $ 1915(9)(2012). On review, the court does not find any civil action brought
by Mr. Walton in forma pauperis that was dismissed on the ground that it was frivolous,
malicious, or failed to state a claim upon which relief may be granted' Thus, Mr. Walton
is not precluded from requesting that the filing fee be waived.

        As of November 9, 2015, Mr. Walton's only assets amounted to $315.34, the sum
in his prison account largely accumulated from gifts. Appl' IFP, 1, 4' The court
concludes that Mr. Walton does not have sufficient resources to satis$ the court's filing
fee. "[A]lthough [a] litigant need not be absolutely destitute, granting IFP status calls for
showing that paying for the costs of the suit would make it difficult to afford the 'bastc
necessities of life."' See Murphy v. United States, No. 14-536C, 2014 WL 3510222, at
* I n.1 (Fed. Cl. July 16,2014) (quoting Williams v. Court Servs. & Offender Supervision
Agency for D.C., 878 F. Supp. 2d 263,266 (D.D.C.2012)), recons. denied' No. 14-536C,
2014 WL 3841874 (2014).

I       The Court ofFederal Claims, while not generally considered to be a "court ofthe
United States" within the meaning of Title 28 the United States Code, is deemed to be a
,,court ofthe United States" for purposes of this statute, and thus has jurisdiction to grant or
deny IFP applications. See 28 U.S.C. S 2503(d) (deeming the Court of Federal Claims to be
"a court ofthe United States" for the purposes of28 U.S.C' S 1915).

2      A prisoner is defined as "any person incarcerated . . . in any facility who is . . .
convicted ofl, [and] sentenced for. . . violations of criminal law." 28 U.S.C. $ 1915(h).
       Having made the requisite showing, Mr. Walton's IFP application is GRANTED.

II.    Legal Standards

       A.      Evaluating Subject Matter Jurisdiction

        "subjecrmatter jurisdiction may be challenged at any time by the parties or by the
courr sua sponte." Folden v. United States ,379 F .3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning. Phillips & Molnar v. West, 160 F.3d 7 17, 720 (Fed. Cir. I 998)); see also
Metabolite Labs. Inc. v. Lab. Com. of Am. Holdings,370 F.3d 1354, 1369 (Fed. Cir'
2004) ("Subject matter jurisdiction is an inquiry that this court must raise sua sponte,
 even where, as here, neither party has raised this issue."). "In deciding whether there is
 subject-matter jurisdiction, "the allegations stated in the complaint are taken as true and
jurisdiction is decided on the face of the pleadings."' Folden, 379 F.3d at 1354 (quoting
 Shearin v. United States,992F.2d 1 195, 1195-96 (Fed. Cir. 1993)).

        Complaints filed by pro se plaintiffs are often held to "less stringent standards than
formal pleadings drafted by lawyers." Haines v. Kemer, 404 U.S. 519' 520 (1972); see
Vaizburd v. United States, 384 F.3d 1278, 1285 n.8 (Fed. Cir.2004) (stating that
pleadings drafted by pro se parties "should . . . not be held to the same standard as
                                                                       pro se plaintiffs must
 [pleadings drafted by] parties represented by counsel"). However,
siill meet jurisdictional requirements. Bernard v. United States, 59 Fed. Cl. 497,499
(2004), affd, 98 F. App'x 860 (Fed. Cir.2004); see also Kelley v' Dep't ofLabor, 812
F.2d 1378, 1380 (Fed. Cir. 1987) ("[A] court may not similarly take a liberal view of [a]
jurisdictional requirement and set a different rule for pro se litigants only."). If the court
 determines that it does not have subject matter jurisdiction, it must dismiss the claim.
 Rules of the United States Court of Federal Claims (RCFC) 12(h)(3).

        The Tucker Act provides for this court's jurisdiction over "any claim against the
United States founded either upon the Constitution, or any Act of Congress 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."
28 U.S.C. $ 1a91(a)(l) (2012) (emphasis added). A plaintiff must "identiff a substantive
right for money damages against the United States separate from the Tucker Act itself'
foi the court to exercise jurisdiction over a claim. Todd v. United States' 386 F.3d 1091'
 1094 (Fed. Cir. 2004). The substantive source of law allegedly violated must "'fairly be
interpreted as mandating compensation by the Federal Govemment."' United States v.
Navajo Nation, 556 U.S. 28'7,290 (2009) (quoting United States v' Testan,424 U 'S' 392,
400 (1976)).
       B.     Discussion

       As set forth below, plaintiff s complaint must be dismissed for lack of subject
matter jurisdiction pursuant to RCFC 12(hX3), and the court finds that a transfer of
plaintiff s case to another federal court is not appropriate.

                  1.     The Court Does Not Have Jurisdiction Over Plaintiff s Claims

       Plaintiffs "tort ctaim of medical malpractice for negligence and or breach of
contract" falls outside this court's jurisdiction. Pl.'s Compl. 1; 28 U.S.C. $ la91(aXl).
Plaintiff s demand for compensation is based on allegations that a Dr. Charles R' Kuhn,     a
Major in the United States Air Force, performed a different surgery on Mr. Walton than
what Mr. Walton had requested. Pl.'s Compl. passim. With his complaint, Mr. Walton
also submitted a copy of a July 17, 2015 decision of the Board of Veteran's Appeals (The
Board). Pl.'s Compl. l0-13. The Board determined that although no service treatment
records ofany surgery were available, there was sufficient evidence to show that Mr.
Walton underwent surgery based on later physical examination records and the existence
of a military travel order showing Mr. Walton was transferred to a hospital near the
alleged date of his surgery. Pl.'s Complaint 12 (" I'he Board thus finds that the evidence
wcighs in t'avor of a linding that the Veteran underwent surgery on the base of his penis
while in service, and any residuals of that stlrgery are therefore eligible fbr service
connection."). The Board remanded Mr. Walton's case to the Department of Veterans
Affairs Regional Office in Muskogee, Oklahoma, ibr further proceedings. Mr. Walton
states that he filed a clairn in this court because he believes that "the [Veteran's Affairs]
compensation clairn was filed erroneously ...and ...that the claim on rcvicw will be
denied again in the final analysis." Pl.'s Compl. 13.

       Mr. Walton seelns to argue that upon his revieu'of the records produced while his
claim rvas on appeal. he now has a claim for Medical Malpractice fbr consideration by
this court. Id. Plaintiff "invokes jurisdiction under, (28 $ l49l) Medical Malpractice."
Pl.'s Compl. 1. But, plaintiff s claim sounds in tort, see Zhengxins v. United States, 7l
Fed. Cl. 732,739 (2006), affd, 204 F. App'x 885 (Fed. Cir' 2006), and the Tucker Act
plainly excludes tort claims lrom the court's jurisdiction, 28 U.S.C. $ 1491(a)(l); Keene
Corp. v. United States, 508 U.S. 200,214 (1993).

       Accordingly, plaintiff s complaint must be dismissed pursuant to RCFC 12(hX3)
for lack of subject matter jurisdiction.

                    2.      Transfer of the Case to Another Court Is Not Appropriate

        The court now considers whether "it is in the interest ofjustice" to transfer
plaintiff s complaint to another court of the United States under 28 U.S'C. $ 1631' See
Tex. Peanut Farmers v. United States, 409 F.3d 1370,137415 (Fed. Cir. 2005) (stating
that the Court of Federal Claims should consider whether transfer is appropriate once the
court has determined that it lacks jurisdiction). Section 163 I states in pertinent part:

       Whenever a civil action is filed in a court as defined in section 610 of this
       title or an appeal, including a petition for review of administrative action, is
       noticed for or filed with such a court and that court finds that there is a want
       ofjurisdiction, the court shall, if it is in the interest ofjustice, transfer such
       action or appeal to any other such court in which the action or appeal could
       have been brought. . . .

28 U.S.C. $ 163 l;see 28 U.S.C. $ 610 (defining courts as "courts of appeals and district
courts of the United States, the United States District Court for the District of the Canal
Zone, the District Court of Guam, the District Court of the Virgin Islands, the United
States Court of Federal Claims, and the Court of Intemational Trade"). "The phrase 'if it
is in the interest ofjustice' relates to claims which are nonfrivolous and as such should be
decided on the merits." Gallowav Farms. Inc. v. United States,834F.2d 998, 1000 (Fed.
Cir. 1987); see id. (stating that "[f]rivolous claims include 'spurious and specious
arguments"' (quoting Devices for Med.. Inc. v. Boehl,822F.2d 1062, 1068 (Fed. Cir.
1987)).

       "A decision to transfer rests within the sound discretion of the transferor court, and
the court may decline to transfer the case '[i]f such transfer would nevertheless be futile
given the weakness of plaintiff s case on the merits."' Spencer v. United States, 98 Fed.
C|.349,359 (2011) (alteration in original) (quoting Faulkner v. United States, 43 Fed. Cl.
54, 56 (1999). "The basic test ... for determining ifa case should be transferred is
whether it would be in 'the interest ofjustice' to do so." Busby School of N. Cheyenne
Tribe v. united states, 8 cl. ct. 588, 595 (1985).

       Because Mr. Walton has previously brought his claim to the Department of
Vctcrans Affairs, sc<: supra Part II.B.1, and thc appeal ofthat claim appears to be
ongoing. it is not in the interest of.justice to transl-er this casc to another venue for
duplicative proceedings.3 Thus, transfer of this case is not appropriate.

III.   Conclusion

       For the foregoing reasons, the court GRANTS the IFP application and finds that it
lacks jurisdiction over plaintiff s claims. The Clerk of Court is directed to DISMISS
plaintifls complaint for lack of jurisdiction. The Clerk of Court will enter judgment for
defendant. No costs.



'      The current status of Mr. Walton's Veterans' Affairs claim is unknown as the most
recent information orovided bv Mr. Walton is from Julv 2015. See Pl.'s Comol. l0-13.
IT IS SO ORDERED.


                     ATRICIA E. CAMPB
                    ChiefJudge
