' ' 

]n tq.e Unit.eh ~fat.en Qlourt of 111.eh.eral Qllctf!lf..ED 

No. 17-1782L 

SOLOMON UPSHAW, 

Plaintiff, 

v. 

UNITED STATES, 

Defendant. 

(Filed: May 4, 2018) MAY - 4 2018 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

U.S. COURT OF 

FEDERAL CLAIMS 

RCFC 12(b)(6); Pro Se Plaintiff; No 

Action by the United States Alleged 

To Have Caused Taking of Real 

Property. 

~~~~~~~~~~~~-) 

Solomon Upshaw, Cape Neddick, ME, pro se plaintiff. 

Barbara M.R. Marvin, with whom was Jeffrey H. Wood, Acting Assistant Attorney 

General, United States Department of Justice, Washington, DC, for defendant. 

OPINION AND ORDER 

CAMPBELL-SMITH, Judge. 

The court has before it defendant's motion to dismiss the complaint, brought under 

Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC). This 

motion has been fully briefed, as follows: Defendant's Motion, ECF No. 10; Plaintiffs 

Response, ECF No. 11; and Defendant's Reply, ECF No. 12.1 The court has also 

considered the complaint. See Comp!., ECF No. 2. 

On November 14, 2017, Mr. Upshaw filed suit in this court against the United 

States, requesting $2,000,000 in just compensation for an alleged taking of his real 

property. ECF No. 2 at 1. The property is located in Jackson, New Jersey. Id. The 

taking is alleged to have occurred due to the public "right of way of Wright-Debow Road 

and Dirt Road." Id. 

Defendant argues that the complaint, and plaintiffs response brief, fail to point to 

any action of the United States which caused the alleged taking. See ECF No. 12 at 3 

All document references and page citations are to the electronic record preserved 

in the court's Case Management/Electronic Case Files (CM!ECF) system. 
("In neither the Complaint nor his Response does Mr. Upshaw direct any allegations 

against the United States or suggest that the United States participated or was involved in 

whatever action or actions he claims constitute a taking of his property without just 

compensation."). For this reason, defendant states that the complaint should be 

dismissed for failure to state a claim upon which relief may be granted. Id. For the 

reasons set forth in this order, defendant's motion is GRANTED. 

I. Legal Standards 

A. Pro Se Litigants 

The court observes that Mr. Upshaw is proceeding pro se and thus, is "not 

expected to frame issues with the precision of a common law pleading." Roche v. U.S. 

Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Prose plaintiffs are entitled to a 

liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) 

(requiring that allegations contained in a pro se complaint be held to "less stringent 

standards than formal pleadings drafted by lawyers"). Accordingly, the court has 

thoroughly examined the complaint, plaintiffs brief, and attachments thereto to discern 

plaintiffs claims and legal arguments. 

B. Failure to State a Claim upon Which Relief Can Be Granted 

It is well-settled that a complaint should be dismissed under RCFC 12(b)(6) "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). When considering a motion to 

dismiss brought under RCFC l 2(b )( 6), "the allegations of the complaint should be 

construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), 

abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The court 

must inquire, however, whether the complaint meets the "plausibility" standard described 

by the Supreme Court, that is, whether it adequately states a claim and provides a 

"showing [of] any set of facts consistent with the allegations in the complaint." Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 560, 563 (2007) (Twombly) (citations 

omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual 

matter, accepted as true, to 'state a claim to relief that is plausible on its face."' Ashcroft 

v. Igbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). 

II. Discussion 

Mr. Upshaw has alleged facts, which are construed in his favor, that support his 

assertion that he owns real property in Jackson, New Jersey. See ECF No. 2 at 2; ECF 

No. 11 at 1, 16-19; ECF No. 11-1 at 1-2. However, there is no allegation that the United 

States took any action that is relevant to an alleged taking of Mr. Upshaw's land due to 

2 
, 

the public right of way associated with either Wright-Debow Road or Dirt Road in 

Jackson. A plausible takings claim, in this court, must allege that the United States took 

the plaintiffs property, not that some state government, local government, or private 

individual took that property. See, e.g., United States v. Sherwood, 312 U.S. 584, 588 

(1941) (stating that the only proper defendant in this court is the United States) (citations 

omitted). Mr. Upshaw's takings claim, as presented in his complaint and re-asserted in 

his response brief, does not present a plausible takings claim. 

III. Conclusion 

Mr. Upshaw's complaint does not present a plausible claim for relief. 

Accordingly, because the complaint fails to state a claim upon which relief can be 

granted, it must be dismissed pursuant to RCFC 12(b)(6). For these reasons, defendant's 

motion to dismiss, ECF No. 10, is GRANTED. The clerk's office is directed to 

ENTER final judgment in favor of defendant DISMISSING plaintiffs complaint for 

failure to state a claim upon which relief may be granted, with prejudice. The injunction 

entered by this court in Upshaw v. United States, No. l 7-048C, slip op. at 3 (Fed. Cl. 

Feb. 14, 2017), which imposes conditions before any new filings by Mr. Upshaw will be 

considered by this court, REMAINS IN FULL FORCE AND EFFECT. 

IT IS SO ORDERED. 

3