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# ]ntq.eUnit.eh**~fat.en** 

# Qlourt of111.eh.eral Qllctf!lf..ED No. 17-1782L

SOLOMONUPSHAW, Plaintiff,

v. UNITED STATES, Defendant. (Filed: May 4, 2018) 

### MAY - 42018 ) ) ) ) ) ) ) ) ) ) U.S. COURT OF FEDERAL CLAIMS RCFC 12(b)(6); Pro Se Plaintiff; No Action bythe United States Alleged To Have Caused Taking ofReal Property.**~~~~~~~~~~~~-)** Solomon Upshaw, Cape Neddick, ME, pro se plaintiff. BarbaraM.R. Marvin, with whom was Jeffrey H. Wood, Acting Assistant Attorney General, United States Department ofJustice, 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) ofthe Rules ofthe United States Court ofFederal 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 againstthe United States, requesting $2,000,000 injustcompensation for an alleged taking ofhis 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 ofway ofWright-DebowRoad and Dirt Road." Id. Defendant argues thatthe complaint, and plaintiffsresponse brief, fail to point to any action ofthe United States which caused the alleged taking. See ECF No. 12 at 3 All documentreferences and page citations are to the electronic recordpreserved in the court's Case Management/Electronic Case Files (CM!ECF) system.("In neitherthe Complaint norhis Response does Mr. Upshaw direct any allegations against the United States or suggestthatthe United States participated or was involved in whatever action or actions he claims constitute a taking ofhis property withoutjust compensation."). For this reason, defendant states thatthe complaint should be dismissed for failure to state a claim upon which reliefmay be granted. Id. Forthe 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 proceedingpro se and thus, is "not expected to frame issues with the precision ofa common law pleading." Roche v. U.S. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Proseplaintiffs are entitled to a liberal construction oftheirpleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (requiringthat allegations contained in apro se complaintbe held to "less stringent standards than formal pleadings drafted by lawyers"). Accordingly, the courthas thoroughly examinedthe complaint, plaintiffsbrief, and attachments thereto to discern plaintiffs claims and legal arguments. B. Failure to State a Claim upon Which ReliefCan Be Granted Itis well-settled that a complaint should be dismissed underRCFC 12(b)(6) "when the facts asserted by the claimant do not entitle himto a legal remedy." Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). When considering a motion to dismiss brought under RCFC l2(b)(6), "the allegations ofthe 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, whetherthe complaint meets the "plausibility" standard described by the Supreme Court, that is, whether it adequately states a claim andprovides a "showing [of] any set offacts consistentwiththe 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 claimto reliefthat 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 allegationthat the United States took any action that is relevantto an alleged taking ofMr. Upshaw's land due to 2

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the public right ofway associated with either Wright-DebowRoad orDirt Road in Jackson. A plausible takings claim, in this court, must allege that the United States took the plaintiffsproperty, not that some state government, local government, orprivate individual tookthat property. See, e.g., United States v. Sherwood, 312 U.S. 584, 588 (1941) (stating that the only proper defendant inthis 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 notpresent aplausible takings claim. III. Conclusion Mr. Upshaw's complaint does notpresent a plausible claim for relief. Accordingly, because the complaint fails to state a claim upon which reliefcan be granted, it must be dismissedpursuant to RCFC 12(b)(6). Forthese reasons, defendant's motion to dismiss, ECF No. 10, is GRANTED. The clerk's office is directedto ENTER finaljudgmentin favor ofdefendant DISMISSING plaintiffs complaint for failure to state a claim upon which reliefmay be granted, with prejudice. The injunction entered by this court in Upshawv. United States, No. l7-048C, 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.

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