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No. 15-14 C

Filed: August 6, 2015

TO BE PUBLISHED

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Victor Fourstar, pro se.

Melissa Baker, United States Department of Justice, Civil Division, Washington, D.C., for the

Govemment.

MEMORANDUM OPINION AND FINAL ORDER

I. RELEVANTFACTUALBACKGROUND.'

On October 30. 2002, Victor Fourstar was convicted of violating 18 U.S.C. $$ I I 53(a)'z

and224l3 by the United states Districr court for the District of Montana. compl. !f I . on February

I The facts discussed herein were derived from the January 6, 2015 Complaint ("Compl'")

and the March 9, 2015 Amended Complaint ("Am. Compl.").

2 Section I 153(a) provides:

Any Indian who commits against the person or property of another Indian or other

person any of the following offenses, . . . shall be subject to the same law and

penalties as all other persons committing any of the above offenses, within the

exclusive jurisdiction of the United States.

18U.S.c.$lls3(a).

3 Section 2241 provides:

Whoever, in the special maritime and tenitorial jurisdiction of the United States or

in a Federal prison, or in any prison, institution, or facility in which persons are

FILED

AUG - 6 2015

U.S. COURT OF

VICTOR FOURSTAR, FEDERALCLAIMS

Plainliff, pro se,

THE LTNITED STATES,

Def'endant.

Jurisdiction,

28 U.S.C. $ 1491;

Motion To Dismiss,

RCFC 12(bX1);

Pro Se,

"Three Strikes" Rule,

28 U.S.C. $ 191s.
27,2003, Mr. Fourstar was sentenced to 188 months' imprisonment and five years' supervised

release. Compl. tl L On January 30, 2004, the United States Court ofAppeals for the Ninth Circuit

affirmed Mr. Fourstar's conviction. See United States v. Fourstar,8T F. App'x 62 (9th Cir.2004).

Thereafter, Mr. Fourstar filed at least six petitions for a writ of habeas corpus in various

venues. See Fourstar v. Martinez,541 F. App'x 494 (5th Cir. 2013) (affirming denial of writ);

Fourstar v. Copenhaver,l4-CV- 1456 (E.D. Cal. Sept. 18, 2014); Fourstar v. llalton,l3-CY -1122

(S.D. Ill. Oct. 31, 2013); Fourstar v. Farley, l2-CV-124 (E.D. Ky. Oct. 30, 2012);

Fourstar v. Kelly,l2-CY -3671 Of .D. Ga. Oct. 19,2012); Fourstar v. United Stotes,05-Cv-61 (D

Mont. June 7,2005); Fourstar v. Outlnv,07 -CY -1 1 (E.D. Tex. Jan. 8,2001).

Mr. Fourstar also unsuccessfully petitioned for certificates of innocence from the United

States Court of Appeals for the Sixth Circuit, Seventh Circuit, and Ninth Circuit. Compl' at p. 3.0

As of February 17 , 2015, Mr. Fourstar has continued to assert his innocence in other

venues. Am. Compl. at p. 2.

II, RELEVANTPROCEDURALHISTORY,

On January 6,2015, Mr. Fourstar ("Plaintiff') filed a Complaint ("Compl.") in the Ilnited

States Court of Federal Claims, seeking $675,000 for "wrongful arrest and wron-gful

imprisonment." That same day, Plaintiff also fit.d u Motion To Proceed 1n Forma Pauperis.5

On February 10, 2015, the Govemment filed a Motion To Dismiss ("Gov't 2l10/15 MoI'")'

pursuant to Rule 12(b)(1) ofthe Rules ofthe United States Court of Federal Claims ("RCFC").

On February 26,2015, Plaintiff filed a Motion To Amend Pleadings that the court granted

on March 9,2015.

On March 9,2015, Plaintiff filed an Amended Complaint ("Am. Compl.").

held in custody by direction ofor pursuant to a contract or agreement with the head

of any Federal department or agency, knowingly causes another person to engage

in a sexual act-

(l) by using force against that other person; or

(2) by threatening or placing that other person in fear that any person will be

subjected to death, serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, imprisoned for any term ofyears

or life, or both.

l8 U.S.C. $ 224i(a).

a Some portions ofthe January 6, 2015 have paragraph numbers; others do not. For those

portions not within an enumerated paragraph, the court refers to the page number.

5 Plaintifl s January 6, 201 5 Motion To Proceed /n Forma Pauperis is granted'
III.

On March 23,2015, the Govemment filed a Motion To Dismiss ("Gov't 3/23115 Mot."),

pursuant to RCFC l2(b)(1).

On May 1,2015, Plaintiff filed a Motion For Preliminary Injunction, Motion For

Temporary Restraining Order, And Motion For Appointment Of United States Attomey. ("P1.

Mot.") On May 7,2015, the Govemment filed a Response ("Gov't 517115 Resp."). On June 23,

2015, Plaintiff filed a Reply ("P1. Reply").

On May 7, 2015, Plaintiff filed a Motion To Strike The Govemment's Motion To Dismiss.

On May 11, 2015, the Government filed a Response ("Gov't 5/l l/15 Resp.").

On June 16. 2015, Plaintiff filed a Motion For Leave To File Second Amended Complaint,

Motion To Certifu Class, And Motion For Injunction, Intervention, And Restraining Order. On

June 19, 2015, the Govemment filed a Response ("Gov't 6/19/i5 Resp.").

On July 28, 2015, Plaintiff filed a Motion For Leave To File Second Motion For

Preliminary Injunction And Motion For Restraining Order. That same day, Plaintiff also filed a

Motion For Leave To File Third Motion To Amend complaint and a Motion To Appoint counsel.

DISCUSSION,

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. $ 1491 , 

"to render 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 unliquidated damages

in cases not sounding in tort." 28 U.S.C. $ l491(a)(1). The Tucker Act, however, is "a

jurisdictional statute; it does not create any substantive right enforceable against the United States

1o.111on"y damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court of

Federal Claimsl whenever the substantive right exists." United Slqtes v. Teslan,424 U.S.392,

398 (l 976).

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an

independent contractual relationship, Constitutional provision, federal statute, and/or executive

ageniy regulation that provides a substantive right to money damages. See Todd v. United Stales,

386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the litigant to

identify a substantive right for money damages against the United States separate from the Tucker

Act[.]"); see also Fisher v. United States, 402 F .3d 116'7 , 1172 (Fed' Cir. 2005) (en banc) ("The

TuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmustidentifyaseparate

source of substantive law that creates the right to money damages. . . . [T]hat source must be

.money-mandating."'). Specifically, a plaintiff must demonstrate that the source of substantive

law that he relies upon "can fairly be interpreted as mandating compensation by the Federal

Government[.]" Testan, 424 U.S. at 400. And, the plaintiff bears the burden of establishing

jurisdiction by a preponderance ofthe evidence. See Reynolds v. Army & Air Force Exch. Serv.,

846 F.2d 746,748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put
Moreover, "[t]he United States Court of Federal Claims shall have jurisdiction to render

judgment upon any claim for damages by any person unjustly convicted ofan offense against the

United States and imprisoned." 28 U.S.C. $ 1495.

B. Standard Of Review For Pro Se Litigants.

Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants

represented by counsel. See Haines v. Kerner,404 U.S. 519, 520 (i972) (holding thal pro se

complaints, "however inartfully pleaded," are held to "less stringent standards than formal

pleadings drafted by lawyers"). This court traditionally examines the record "to see if [apro se]

plaintiff has a cause of action somewhere displayed." Ruderer v. United States' 412F.2d 1285'

1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a pro se plaintiffs

complaint, the court "does not excuse [a complaint's] failures." Henke v. United States, 60 F .3d

795,799 (Fed. Cir. 1995).

C. Standards For Motion To Dismiss Pursuant RCFC 12(bxl)'

A challenge to the United States Court of Federal Claims' "general power to adjudicate in

specific areas of substantive law . . is properly raised by a [Rule] l2(b)(l) motion[.]"

Palmer v. tJnited States,l68 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(b)(1) ("Every

defense to a claim for relief in any pleading must be asserted in the responsive pleading . . . . But

a party may assert the following defenses by motion: (1) lack of jurisdiction over the subiect

matter[.]"). When considering whether to dismiss an action for lack of subject matter judsdiction,

the court is "obligated to assume all factual allegations ofthe complaint to be true and to draw all

reasonable inferences in plaintiff s favor." Henke,60F'3dat79'7.

D. The Court's Resolution Of The Government's March 23' 2015 Motion To

Dismiss.

7. Pro Se Considerations.

The court is cognizant of its obligation to liberally construe pro se plaintiffs' pleadings.

See Estelle v. Gamble,429IJ.S.97,106 (197 6) (holding that the "pro se document is to be liberally

construed"). B-$, pro se plaintiffs must still "comply with the applicable rules of procedural and

substantive lavt |' Walshv. United Slates,3 Cl. Ct. 539, 541 (1983). Nevertheless, the court is not

at liberty to excuse a complaint's failures. See Henke,60F.3dat799'

Here, the Government argues that the court should not consider the facts alleged in the

January 6, 2015 Complaint. Gov't3123115 Mot. at 4-5. But, because Plaintiff ispro se,o the court

6 PlaintifT requests appointment of counsel. Am. Compl. at p. 2 ("[Plaintiffl requests the

appointment ofcounsel in light of complexity ofissues and likeliness ofsuccess and in light ofhis

iniUitity to access the rules of this court."). But, "the right to counsel [in civil proceedings] is

highly circumscribed, and has been authorized in exceedingly restricted circumstances[.]"

pitst v. Shinseki, 700 F.3d 12'19,1283 (Fed. Cir. 2012). To the extent that Plaintiffseeks counsel,

pursuant to 28 U. S.C. $ 191 5(e), that statute provides that "[t]he court may request an attomey to

i"p."."nt any person unable to afford counsel." 28 U.S.C. g l9l5(e)(l) (emphasis added). To
will consider the factual allegations from the March 9,2015 Amended Complaint, as well as the

January 6, 201 5 Complaint.

2. The Merits.

The court has jurisdiction "to render judgment upon any claim for damages by any person

unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. S 1495.

But, Section 2513(a) further imposes several limitations:

Any person suing under section 1495 of this title must allege and prove that:

( 1 ) His conviction has been reversed or set aside on the ground that he is not guilty

ofthe offense of which he was convicted, or on new trial or rehearing he was

fbund not guilty ofsuch offense, as appears from the record or ceftificate ofthe

court setting aside or reversing suoh conviction, or that he has been pardoned

upon the stated ground of innocence and unjust conviction and

(2) He did not commit any ofthe acts charged or his acts, deeds, or omissions with

such charge constituted no oflense against the United States, or any State,

Tenitory or the District of Columbia, and he did not by misconduct or neglect

cause or bring about his own prosecution.

28 U.S.C. $ 2513(a).

In this case, neither the January 6,2015 Complaint nor the March 9,2015 Amended

Complaint "allege[s] or prove[s]" any ofthe statutory requirements, i.e., that Plaintiff received a

certificate of innocence or was "pardoned on upon the stated ground of innocence" and that "[h]e

did not commit any of the acts charged." 28 U.S.C. $ 2513(a). Although the January 6, 2015

Complaint and March 9, 2015 Amended Complaint allege that Plaintiff is continuing to assert

innocence in different venues, neither pleading alleges facts that would satisry Section 2513.

IV. CONCLUSION.

For the reasons discussed herein, the Government's March 23, 2015 Motion To Dismiss is

granted. The Clerk of Court is directed to dismiss Plaintiff s March 9, 2015 Amended Complaint.

As such, all remaining pending motions in this case are denied as moot.

warrant appointment of counsel in civil cases, however, Plaintiff must demonstrate "extreme

hardship" and ,'exrraordinary circumstances." Ilashington v. united states,93 Fed. c1.706,709

(2010). Although the court recognizes its duty to ensure that p/o se plaintiffs are treated fairly,

this case does not meet that standard. See ld (determining that a complaint against the United

States Army for $900,000 in damages did not meet the "extraordinary circumstances" standard).

As such. Plaintiff s request for appointment of counsel is denied.
Moreover, because Plaintiff has filed at least four other lawsuits that were dismissed as

frivolous,T Plaintiff is prohibited from filing any claim inthe United States Court of Federal Claims

under Section 1915. See 28U.S.C. $ 1915(g) ("ln no event shall a prisoner bring acivil 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 ofserious physical injury."); see also Fourstar v. Garden City Grp., No. 15-mc-76,2015

WL 301217 , at * 1 (D.D.C. Ian,22,2015) ("The plaintiff has accumulated at least three strikes.").

IT IS SO ORDERED.

1 See Fourstar v. Costell,No.14-cv-957,2014 WL 7005105, at *l (S.D. Ill. Sept' 29,2014)

("The Court determined that Plaintiffhad, in fact, on at least thee prior occasions brought a civil

rights case that was dismissed on the grounds that it was frivolous, malicious, or failed to state a

claim."); Fourstar v. Murlak,No. CV 07 -5892,2010 WL 2163980, at *4 (C.D' Cal' Apr' 26' 2010)

(frivolousness recommendation of magistrate jud ge); Fourstar v. Outlaw,283 F. App'x 209 (5th

Cir. 2008) (dismissing appeal as frivolous); Fourstar v. Zemyan,08-CV-50 (D. Mont. Aug. 26'

2008) (adopting frivolousness recommendation of magistrate judge).

sus