# In the United States Court of Federal Claims
No. 20

- 635C Filed: February 4 , 2021 NOT FOR PUBLICATION

ROBERT A. SPARKS ,

Plaintiff,

v.
THE UNITED STATES,

Defendant. )

) ) ) ) ) ) ) ) ) ) Pro se ; RCFC 12(b)(1); Subject

- Matter Jurisdiction; Tort Claims; Veterans Benefits; RCFC 12(b)(6); Failure To State A Claim.

Robert A. Sparks , Leonardtown, MD, plaintiff pro se

. Margaret J. Jantzen , Trial Attorney, Deborah A. Bynum , Assistant Director, Robert E. Kirschman, Jr. , Director, Ethan P. Davis , Acting Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER
GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff pro se , Robert A. Sparks, brings this action against the United States alleging
that he contracted an infection after undergoing a dental procedure performed at a United States Department of Veterans Affairs (the “VA” ) dental clinic

. See generally Compl. As relief, plaintiff seeks to recover $5 million in monetary damages from the United States

. Id. at ¶ 3.
The government has moved to dismiss this matter for lack of subject

- matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and (6) of the Rules of the United States Court of Federal Claims (“RCFC”)

. See generally Def.
Mot. Plaintiff ha s also filed a motion to proceed in this matter in forma pauperis

. See generally
Pl. Mot

. For the reasons set forth below, the Court: (1) GRANTS the government’s motion to2

dismiss; (2) GRANTS plaintiff ’s motion to proceed in forma pauperis ; and (3) DISMISSES the complaint.

II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background
Plaintiff, pro se , Robert A. Sparks, is a United States Army veteran . Pl. Resp. at 1. In the complaint, plaintiff alleges that he contracted an infection after undergoing a dental procedure performed at a VA dental clinic located in Washington, DC

. See Compl. at ¶ ¶ 1 , 3

. As relief, plaintiff seeks to recover $5 million in monetary damages from the government. Id. at ¶ 4

. Specifically, plaintiff alleges that , on September 22, 2017, h e received a tooth filling at a VA dental clinic and that he “started getting sick” after the procedure and “was really sick” by the time he got home. Id

. at ¶¶ 1, 3. Plaintiff also alleges that , on September 24, 2017, he was admitted to the Surgical Intensive Care Unit at the VA Medical Center in Washington, D C and underwent surgery. See id. at ¶ 3.
In addition, plaintiff alleges that a doctor subsequently told him that his infection had been caused by his tooth filling procedure. See id

. And so, plaintiff seeks monetary damages from the government as comp ensation for “what [the VA has] done” and recovery for “pain [and] suffering . . . in the amount of

. . . five million dollars . . . .” Id. at ¶ 4.

B. Procedural History
Plaintiff commenced this action and filed a motion to proceed in forma pauperis on May 18, 2020

. See generally Compl.; Pl. Mot

. On July 19, 2020 , the government filed a motion to
dismiss this matter , pursuant to RCFC 12(b)(1) and (6). See generally Def. Mot.

On August 12, 2020 , plaintiff filed a response to the government’s motion to dismiss. See generally Pl. Resp. On August 26, 2020 , the government filed a reply in support of its
motion to dismiss. See generally Def. Rep ly

.

1 The facts recited in this Memorandum Opinion and Order are taken from the complaint (“Compl.”) ; the government’s motion to dismiss (“Def. Mot.”) ; and pla intiff’ s response thereto (“Pl. Resp.”)

. Unless otherwise noted herein, the facts recited are undisputed.3

These matters having been fully briefed, the Court resolves the pending motion s

. III. LEGAL STANDARDS

A. Pro Se Litigants

Plaintiff is proceeding in this matter pro se , without the benefit of counsel. And so, the Court applies the pleading requirements leniently. Beriont v. GTE Labs., Inc. , 535 F. App’x 919, 926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp ., 501 F.3d 1354, 1356 (Fed. Cir. 2007)). When de termining whether a complaint filed by a pro se plaintiff is sufficient to survive a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs than to plaintiffs who are represented by counsel. See Haines v. Kerner , 404 U.S. 5 19, 520 (1972) (holding that pro se complaints, “however inartfully pleaded,” are held to “less stringent standards than formal pleadings drafted by lawyers”); Matthews v. United States , 750 F.3d 1320, 1322 (Fed. Cir. 2014). But, there “is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his pleading.” Lengen v. United States , 100 Fed. Cl. 317, 328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin v. United
States , 33 Fed. Cl . 285, 293 (1995) )

. Given this, w hile “a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney . . . the pro se plaintiff, nevertheless, bears the burden of establishing the Court’s jurisdiction by a pr eponderance of the evidence.” Riles v. United States , 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States , 303 F.3d 1357, 1359 (Fed. Cir. 2002)). And so, the Court may excuse ambiguities, but not defects, in the complaint. Colbert v.
United Stat es , 617 F. App’x 981, 983 (Fed. Cir. 2015) ( “No plaintiff, pro se or otherwise, may be
excused from the burden of meeting the [C]ourt’s jurisdictional requirements.”) (citing Kelley v. Sec’y of Dep’t of Labor , 812 F.2d 1378, 1380 (Fed. Cir. 1987) ) (emphasis added); see also
Demes v. United States , 52 Fed. Cl. 365, 368 (2002) (“ Pro se litigants are not immune from laws and rules of procedure simply on the basis of their pro se status.”) (citation omitted).

B. RCFC 12(b)(1)
When deciding a motion to dis miss for lack of subject

- matter jurisdiction, this Court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable
inferences in the non

- movant’s favor. See Erickson v. Pardus , 551 U.S. 89, 94 (2007); United4

Pac. Ins. Co. v. United States , 464 F.3d 1325, 1327

- 28 (Fed. Cir. 2006); RCFC 12(b)(1).
P laintiff bear s the burden of establishing subject

- matter jurisdiction, and he must do so by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv. , 846 F.2d 746, 748 (Fed. Cir. 1988). And so, s hould the Court determine that “it lacks jurisdiction over the subject matter, it must dismiss the claim.” Matthews v. United States , 72 Fed. Cl. 274, 278 (2006) (citing RCFC 12(h)(3))

. In this regard, the United States Court of Federal Claims is a court of limited jurisdiction and “possess[es] only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). Specifically, t he Tucker Act grants the Court jurisdiction over:
[A]ny claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive departme nt, 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)(1). The Tucker Act is, however, “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. Testan , 424 U.S. 392, 398 (1976). And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff must identify and plead a money

- mandating constitutional provision, statute, or regulation; an express or implied contract with the United States; or an illegal exac tion of money by the United States. Cabral v.
United States , 317 F. App’x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United States , 402 F.3d 1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States , 333 F.3d 1295, 1302

- 03 (Fed. Cir. 2003). “[A] statute or regulation is money - mandating for jurisdictional purposes if it ‘can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].’” Fisher , 402 F.3d at 1173 (brackets existing ) (quoting United States
v. Mitchell , 463 U.S. 206, 217 (1983)).
Specifically relevant to this matter , it is well

- established that this Court does not possess subject

- matter jurisdiction to review t ort claims. 28 U.S.C. § 1491(a)(l); see also Kee ne Corp. v.
United States , 508 U.S. 200, 214 (1993) ( “ [T]ort cases are outside the jurisdiction of the Co urt of
Federal Claims today. ” ); Rick’s Mushroom Serv., Inc. v. United States , 521 F.3d 1338, 13435

(Fed. Cir. 2008) ( “ The plain language of the Tucker A ct excludes from the Court of Federal
Claims jurisdiction claims sounding in tort. ” ); Hernandez v. United States , 96 Fed. Cl. 195, 204 (2010). And so, the Court must dismiss tort claims for lack of subject matter jurisdiction.
In addition, this Court has also recognized that “[c]laims for veterans’ benefits are not within the jurisdiction of the Court of Federal Claims.” See, e.g. , Berkowitz v. United States , No.
07

- 328C, 2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) ( quoting Van Allen v. United States , 66 Fed. Cl. 294, 296 (2005)). And so, “[d]isputes concerning veterans’ benefits are handled internally by the VA” at the Board of Veterans Ap peals, “ with appeal to the United States Court of Appeals for Veterans Claims. ” Berkowitz , 2014 WL 4387851, at *4; see 38 U.S.C. §§ 7105,
7252.

C. RCFC 12(b)(6)
When deciding a motion to dismiss based upon failure to state a claim upon which relief can be granted pursuant to RCFC 12(b)(6), this Court similarly assume s that all undisputed facts alleged in the complaint are true and must draw all reasonable inferenc es in the non

- movant’s
favor. See Call Henry, Inc. v. United States , 855 F.3d 1348, 1354 (Fed. Cir. 2017) (citing Bell/Heery v. United States , 739 F.3d 1324, 1330 (Fed. Cir. 2014)). And so, to survive a motion
to dismiss pursuant to RCFC 12(b)(6), a comp laint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). When the complaint fails to “state a claim to rel ief that is plausible on its face,” the Court must dismiss the complaint. Iqbal , 556 U.S. at 678 (citation omitted). On the other hand, “[w]hen there are well

- pleaded factual allegations, a court should assume their veracity,” and
determine whether it is plausible, based upon these facts, to find against the defendant. Id. at 678

- 79 (“A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”).

IV. LEGAL ANALYSIS
The government has moved to dismiss this matter for lack of s ubject

- matter jurisdiction pursuant to RCFC 12(b)(1), upon the ground s that the Court does not possess subject

- matter jurisdiction to consider plaintiff’s tort and veterans’ benefits claims

. Def. Mot. at 3

- 4. The6

government has also moved to dismiss this matter for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(6) , up on the ground that plaintiff has failed to plausibly allege a breach of contract claim against the government

. See id. at 4

- 5. Plaintiff has also
moved to proceed in this matter in forma pauperis

. See generally Pl. Mot.
For the reasons discussed below, the Court does not possess subject

- matter jurisdiction to consider plaintiff’s tort and veterans’ benefits claims. Plaintiff has, however, satisfied t he statutory requirements to proceed in this matter without paying the Court’s filing fee

. And so,
the Court : (1) GRANTS the government’s motion to dismiss; (2) GRANTS plaintiff’s motion to proceed in forma pauperis ; and (3) DISMISSES the complaint.

A. The Court May Not Consider Plaintiff’s Tort Claim s As an initial matter, the Court must dismiss plaintiff’s claim alleging that he contracted an infection after undergoing a dental procedure performed at a VA dental clinic located in
Washin gton, D C , because this claim sounds in tort. It is well

- established that the Tucker Act expressly excludes tort claims from the jurisdiction of this Court. 28 U.S.C. § 1491(a)(1) (“The United States Court of Federal Claims shall have jurisdiction to re nder 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 unliquida ted damages in cases not sounding in tort .”) (emphasis added) ; see also Rick's Mushroom Serv., Inc. v. United States , 521 F.3d 1338, 1343 (Fed. Cir. 2008) (“[t]he plain language of the Tucker Act excludes from the Court of Federal Claims jurisdiction claims sounding in tort”). In this case, plaintiff seeks to recover monetary damages from the government for pain and suffering that he allegedly experienced as a result of contracting an infection after undergoing the aforementioned dental p rocedure at a VA dental clinic. Compl. at ¶¶ 1, 3

- 4. Because plaintiff’s claim sounds in tort, the Court DISMISSES this claim for lack of subject

- matter jurisdiction. Utley v. United States , 144 Fed. Cl. 573, 577 (2019) (citing Gable v. United States , 1 06 Fed. Cl. 294, 298 (2012) ) ; Mendez

- Cardenas v. United States , 88 Fed. Cl. 162, 166 (2009) ( h olding that medical malpractice and negligence claims sound in tort and are therefore not subject to this Court’s jurisdiction); RCFC 12(b)(1).7

B. The Court May N ot Consider Plaintiff’s Veterans’ Benefits Claim To the extent that plaintiff asserts a claim for veterans’ benefits in this case , the Court
must also dismiss this claim . It is well

- established that this Court does not possess subject

matter jurisdiction to consider veterans’ benefits claims
, because the termination and recoupment of veterans’ benefits falls within the sole purview of the VA. See, e.g. , Berkowitz v. United
States , No. 07

- 328C, 2014 WL 4387851, at *4 (Fed. Cl. Sept. 4, 2014) (citing Van Allen v. United States , 66 Fed. Cl. 294, 296 (2005)) ; see also 38 U.S.C. §§ 7105, 7252. Plai n tiff states in the complaint that he seeks compensation for “what [the VA has] done

. ” C ompl. at ¶ 4. To the

extent that plaintiff ’s claim is a claim for veterans’ benefits, the Court must dismiss this claim for lack of subject

- matter jurisdiction . RCFC 12(b)(1). 2

C. Plaintiff May Proceed In Forma Pauperis
As a final matter, p laintiff ha s moved to proceed in this matter in forma pauperis

. See generally Pl. Mot. This Court may authorize the commencement of a suit without prepayment of
fees when a plaintiff submit s 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); see also id. § 2503(d). In his application to proceed in forma pauperis , plaintiff indicates that he is not employed and that he is unable to pay the Court’s filing fee. Pl. Mot. at 1

. Given this, the Court concludes that plaintiff has satisfied the statutory requirements to p roceed in this matter in forma pauperis for the purpose of resolving the government’s motion to dismiss.

V. CONCLUSION
In sum, the most generous reading of the complaint makes clear that the Court does not possess subject

- matter jurisdiction to consider any of plaintiff’ s claim s

. In addition, p laintiff ha s

2 The Court does not read the complaint to a ssert a breach of contract claim against the government. Nonetheless, to the extent that plaintiff asserts a contract claim in the complaint, the government correctly argues that plaintiff has not plausibly alleged a breach of contract claim against the United States in this case. Def. Mot. at 4

- 5; see also Aboo v. United S tates , 86 Fed. Cl. 618, 626, aff’d , 347 F. App’x 581 (Fed. Cir. 2009) (quoting Cooley v. United States , 76 Fed. Cl. 549, 555

- 56 (2007) ( holding that a plaintiff must demonstrate the existence of a valid contract to prevail on a breach of contract claim aga inst the government) )

.8

satisfied the statutory requirements to proceed in this matter without paying the Court’s filing
fee.
And so, for the foregoing reasons, the Court:

1. GRANTS the government’s motion to dismiss;

2. GRANTS plaintiff’ s motion to proceed in forma pauperis ; and

3. DISMISSES the complaint. The Clerk shall enter judgment accordingly.
Each party shall bear its own costs.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge