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# <!Court of jfeberal (!Claint.S No. 15-585 C (Filed O ctober 22, 2015) NOT FOR PUBLICATION

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### DENNY-RAY HARDIN, Plai ntiff, v. 

### THE UNITED STATES, * 

### * * 

### * * 

### * * * ·); Defendant. 

### * * * 

### * * 

### **   **  •k•ic 

### * * 

### * ** * * 

### ** 

### ***~-** 

# FILED OCT 2 2 2015 U

.S. COURT OF FEDERAL CLAIMS



### MEMORANDUM OPINION AND ORDER WOLS KI , Judge. The matter before the Court is th e defe n da n t's motion to d i s mis s thi s case for lack of subject-m atter jurisdiction pursuant to Rule 12(b) (l) of the Rules of the United States Court of Federal Claim s (RCFC). For the rea sons discus sed below , defendant's moti on is 

### GRANTED due to plaintiffs failure to state a claim within this court's juri sdiction. 

### I. 

### BACKGROUND Plaintiff D enny-Ray Hardin i s a prisoner at t h e Federal Correctional In s titution in Big Spring, Texas.1 Mister Hardin filed t h is case aga in s t the U nited States on Jun e 9, 2015, alle ging conspiracy, depriv ation of hi s civil rights, First and Eighth Amendment violations, and due process violations. T he gover nment mo ved t o dismiss plainti ffs co mplaint for lack of s ubject-matter juri sdictio n.

1 Mister Hardin was found guilty of 21 counts of fraud in violation of 18 U.S.C. 

### § 514 (creat ing fictitious obligations) and 18 U.S.C. § 1341 (mail fraud ), and i s consequently serving a 120 m onth sente n ce. 

### United States u. Hardin, 489 F. App'x 984 (8th Cir. 2012).Mister Hardin has previously filed at least three different cases with the Court of Fo d01·al Claims. Two of these cas es were dismissed for l ack of subjectm a tter jurisdiction and failure to state a claim ; the third case is still pending. 

### See Hardin v . United States, No. 1 :13-cv-00812-MCW, (Fed

. Cl. February 24 , 2014); 

### Hardin u. United States, No. 1:14- cv-00557 -CFL , (F ed. Cl. Sept ember 26, 2014 ); 

### Hard in u. 

### United States, No. 1:15-cv -00 426-MMS, (Fed. Cl. April 28, 20 15). Additionally, plaintiff has two case s currently pending in the Northern District of T exas. 

### See Hardin v. Batts, No. 15 -cv-000 21-P (N.D. Tex. January 26, 20 15); 

### Hardin u. B atts, No. 1 5-cv-00 04 3 -P (N.D. T ex. March 2, 20 15 ). The facts supp orting plaintiffs co mplaint can be separated into two different categories: allegation s ag ainst Judge Jorge A. Soli s of the Northern District of Texas and his clerks , and allegation s against Bure au of Prisons staff. First, Mr

. H ardin claims that Judge Solis and hi s clerks have conspired to obstruct justice, depriving him of hi s First Amendment r i ght s and giving rise to a cause of action unde r 42 U.S.C 

### §§ 1985 (2), (3)

. 

### See Compl. at 2-3. Mister Har din complains that Judge Solis and his clerks conspired to res trict his First Amendment right to petition the government by refusing to issue a summo ns to Wardon Myron L. B atts. 

### Id. This relates to the first of the two district court cases pending before Judge S olis. 

### Hardin v. B atts, No. 1 5-cv-00021-P (N. D. Tex. January 26, 2015). Plaintiff contends that Judge Solis's failure to i ssue a subpoena to Warden Batts i s evidence of a conspiracy to deprive plaintiff of his civil rights protect ed 

### by the First Amend me nt. Compl. at 3. Second , plaintiff alleges that Warden Batts, Director of the Federal Bureau of P ri sons Ch a rl es Samuel s, and Case Manager Yarbar co nspired to keep him in is ol ation, which h e argues has resul ted in th e infli ction of cruel and unu sual puni shment. 

### Id. Pl a i ntiff alleges that his rights were violated when t he aforement ioned government official s refused to relo cate him to a prison facility closer to his domicile a nd family. 

### Id. at 13-14. Mi ster Hardin contends that he h as suff ered mental an guish, gained fifty pounds , and experienced in somnia as a result of being so far removed from hi s family. 

### Id. Plaintiff alleges that the named gov ernment of ficial s consp ired to deprive him of hi s constitutional rights when t h ey denied h im his reloc ation request, thereby giving rise to a cause of actio n under 42 U.S.C

. 

### § 1983 and viol ating 18 U.S .C. 

### § 241 (conspiracy against ri ghts) and 18 U.S.C. § 242 (deprivatio n of rights under color of l aw). 

### Id. at 3. Base d on these alleged injur i es a n d on a variety of ca u ses of action, plaintiff seek s damages for pain and suffering , punitiv e damages, and an order of relo cation

. 

### Id. at 1 4. Tho majori ty of the compl aint, pages four t hrough twel ve, is the origin a l argument filed in cas e No. 15-21, which is still pendi ng before Judge Solis. 

### See Def.' s Mot. to Dismi ss App. at A39-A50, A63.

- 2

-The government's response argues that plaintiffs claims do not fall under our court's subject-matter jurisdiction and thus, under RCFC 12(b)(l), the case must be di smissed. Mot. to Dismiss at 1 , 6
- 10. Defendant also notes that plaintiff ha s a simila1· case pending before the Northern Di strict of Texas, which additionally bars Mr. Hardin from seeking redress in this court. 

### Id. at 6-7 (citing 28 U.S.C. § 1500). Finally , the government contends that the type of relief plaintiff see ks is not available in this court. 

### Id. at 7, 10. Plaintiff has submitted two documents opposing the government's motion, the second of which has been filed as a sur-roply. 

### See Answer to Def .'s Mot. to Dismi ss, (August 3, 2015), ECF No. 6 (Pl.s ' Resp.); Pl.'s Opp. to Def.'s Mot. to Dismiss, (August 28, 2015) , ECF No. 9 (Pl. 's Sur-reply). B oth have been reviewed and considered by the Court. 

### II. DISCUSSION A. Subject-Matter Jurisdiction Under RCFC 12(b)(l), this court must dismiss claims that do not fall within its subject-matter jurisdiction. When co nsidering a motion to dismi ss a case for lack of subj ect-m atter juri sdiction, courts will accept as true 

### all factual a llegations the non-mov ant made and draw all rea sonable inferences in the light most favorable to that party. 

### See Scheuer 

### u. Rhodes, 416 U.S. 232 , 236 (1974); 

### Pixton 

### u. B&B Plastics, Inc. , 291 F.3d 1324, 1326 (Fed. Cir. 2002) (requiring that on a motion to dismiss 

### fo1· lack of subject-matter jurisdiction this court views "the alleged facts in the complaint as true, and if the facts reveal any reason ab le basis upon which tho nonmovant may prevail, dismissal is inappropriate"); 

### CBYDesign Build ers v. United States, 105 Fed. Cl. 303 , 325 (2012). While a 

### pro se plaintiffs filings are to be liberally construed, 

### see Erickson v. Pardus , 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are outside this court's jurisdiction from being dismiss ed. 

### See, e.g., Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 199 5). The part y invoking 

### a court's jurisdiction bears the burden of estab li shing it and must ultimately do so by 

### a preponderance of the evidence. 

### See McNutt u. 

### General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); 

### Reynolds v. 

### Army & 

### Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1998); 

### Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991). 

### B. Analysis While the Court must interpret the complaint liberally, the majority of the complaint, pages four throug h twelve, is, by Mr. Hardin's own admission "the original arg uments and law" initially brought before Judge Solis. Compl. at 4. To the extent that plaintiff is seeking review of Judge Solis's actions, the Court lacks subject-matter jurisdiction. Also , to the extent that the claims that Mr. Hardin brings are ones he stated in his pending district court cases, the Court d ocs not have jurisdiction.



### - 3 -

### The remaining claims, construed broadly, fall into three categories: civil rights claims, criminal claims, and const itutional claims. This court does not have jurisdiction over those claims. To the extent that one could construe plaintiffs claims as requesting a review of his crimina l conviction, this court lacks jurisdiction. 

### Jones v. United Stat es, 440 F. 

### App 'x 916, 9 18 (Fed. 

### Cir. 20 11); 

### Carter v. United Sta tes, 228 

### Ct. CL 898, 900 

### (1981). As to relief, plaintiff specificall y requests an unspecified sum of money for pain and sufferin g, punitive damages, a nd an order re quiring the Bureau of Prisons to r elocate him to a facility closer to his h ome and family. Compl. at 14. The Court canno t a ward punitive damages and cannot order the Bureau of Priso ns to relo cate Mr. H ard in. As the Cour t does 

### not have jurisdiction over any of Mr. Hardin's claim s, t he Court cannot award any money damages. 2 

### 1. The Court Lachs Subject-Matter Jurisdiction to R eview Judge Solis's Actions This court lacks s ubject-matter jurisdiction over plaintiffs req uest to revi ew Judge Solis's actions (or inactions) i n his case in the Northern District of Texas. 

### See Compl. at 14. 

### This court "does not have jurisdiction to review the decisions of 

### district courts
... relating to proceedings before those courts." 

### Joshua v. 

### United States, 17 F.3d 378, 380 (Fed. 

### Cir. 1994).3 

### Moreover, "[t]his Court lacks jurisdiction 

### to con sider claims which amount to collat eral attacks on criminal convictions. " 

### Perkin s v . United States, No. 13-023C , 

### 2013 WL 

### 3958 35 0, at *3 (Fed. 

### Cl. July 31 , 2013) .4 

### Accordingly , this court lacks the jurisdiction to review the case before Judge Soli s and evaluate whether he or 

### his clerks "conspired" against t h e plaintiff 01· 

### to determine if 

### due process has been violated in that proceeding. 2. 

### The Court Lacks Subject-M atter Jurisdiction over Claim s Mr. Hardin Has Brought in His Two Pending Cases in the Northern District of Texas Mister Hardin cunently has two lawsuits pending in 

### tho Northern District of Texas. 

### See Hardin u. Batts, No. 15-cv-00021-P (N.D. 

### Tex. January 26, 2015);

2 

### Plaintiff also claims that Mr. Mandlebaum, t he Departm ent of Justice attorney in this matter, docs not hav e s tanding 

### to represent the United States. Pl.'s Resp. at 2-4. 

### This argument is baseless. 

### See 28 

### U.S.C. § 516.


### s Pl ain t iff , citi n g Supreme Court cases covering territorial courts 

### ( Bal zac v. Porto Rico, 258 

### U.S. 298 (1922) and**Mool~in** 

### v. Un ited States, 303 U.S. 201 (1938)), incorrectly asserts th at the United St ates District Co urt for the N orthern District of Texas is not an Article III court. 

### Se e Pl.' s Resp. at 16; Pl.'s Sur-rep ly at 4--6.

4 

### Plaintiff in hi s opp os ing pa pers di s claims any intent to r aise criminal law claim s. 

### See Pl. s' Resp. at 14-15 ; Pl. 's Sur-reply at 11.

- 4

-

### Hardi n v. Batts, No. 15-cv-00043-P (N.D. Tex. March 2, 2015). In 

### Hardin v. Batts, No. 15-21, he make s the same allegations, states similar facts, and requests the same relief as here. 

### See Mot. to Dismi ss App. at A39

- 50. This court does "not have jurisdiction of any claim for or in respect to which the plaintiff

... has pending in any other court any suit or process against the United States

...." 28 U.S.C. 

### § 1500 (20 12). Two lawsuits are "for or in respect to the same claim

... if they are based on s ubstantially the same operative facts, regardless of the relief sought in each suit." 

### United States v. Tohono 

### 0 'Odham Nation , 131 S. Ct. 1723, 1731 (2011). B oth the operative fact s and the relief sought in th e two law s uits are essentially the same, and thus t h is court does not have jurisdiction due to 28 U.S.C. § 1500. Plaintiff in his compl aint see mingly acknow ledge s that he is raising many of the same claims here as he did in the di strict court. 

### See Co mpl. at 4. While Mr. Hardin appears frustrated w ith the speed with which Judge Solis is addressing these two pending cases, it appears t hat the delay with these proceedings may be due to an issue with the paym en t of the filing fee. 

### 3. 

### The Court Lacks Subject-Matter Jurisdiction ove r Pla intiff's Civil R ights Claims Pla intiff alleges that defendant vio lated 42 U.S.C. sections 1983 and 1985

. Mister Hardin alleges that 

### J udgc Solis , his clerks , and Federal Bureau of Prisons officials violated his constitutio nal rights an d mai ntains t hat he h as a right to redre ss under the civil rights statut es. This court l acks jurisdiction because th e district co urts have exclusive jurisdiction over such claims. "[T]hc Co urt does no t have jurisdiction to consider civil rights claims brou ght pursuant to 42 U.S.C. 

### §§ 1981 , 1 983, or 19 85 becaus e jurisdiction over claims a rising und er the Civil Rights Act resides exclu s ively in tho district courts." 

### Marlin v. United States, 63 Fed. CL 475, 476 (2005); 

### see also B owles v. United States, No. 14·1241C, 2015 WL 47102 58, a t *3 (Fed. Cl. July 31, 2015 ).5 As such, this court lacks jurisdiction to hear plaintiffs civil rights claims.6

5 Moreover, 42 U .S.C. 

### §§ 1981, 1983, 1985, and 1986 apply to actions of state and lo cal, 

### not federal , officials. 

### See Griffith v. United States, No. 14-793 C, 2015 WL 138 3959, at *2 (Fed. CL Mar. 20 , 2015).

6 In his respon se to the gov ernment's motion to dismiss, plaintiff also cites to 22 Am Jur. 2d 

### § 257. A legal treati se can not be the basis ofjurisdictio n in this court becau se jurisdiction in this court is limi ted to claim s founded upon "the Constitution, or any Act of Congre ss or any regulation of an executive department, or upon any ex press or implied contract w ith the United States." 28 U .S .C. § 14 9l(a)(l) (20 12).

. 5.

### 4. The Court Lacks Subject-Matter Jurisdiction over Plaintiff 's Criminal Claims Plaintiff alleges that defendant v iola ted 18 U.S.C. sect i ons 241 and 242. Compl. at 3. Such claims are mispl aced. Section 241 provides for criminal penalties for those conspiring against the exercise of rights, and 18 U.S.C. 

### § 242 sets the criminal punishments for actions under color of law tha t deprive one of rights b ased on a person's status as an alien or by reaso n of color or race. These statutes "are cr imin al statutes that provide no basis for a civil action in any court." 

### Clarke v. United States, No. 10-283C, 2010 WL 2143675, at *2 (Fed. Cl. May 24, 2010). The Court of Federal Claims does not have jurisdiction to ente rtain criminal matters. 

### Joshua , 17 F.3d at 379; 

### Jones, 440 F. App'x at 918. Thus, plaintiffs criminal claims are di smisse d for lack ofjurisdiction. 

### 5. The Court Lachs Jurisdiction over Plaintiff's Constitutional Claims Plaintiff claims that his First, Fifth, and Eighth Amendment rights have been violated. The Court's jurisdiction, under the Tucker Act, requires that a plaintiff identify a substantive som·ce of law that creates the right to money damages. 

### Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005). The Eighth Amendment is not a money-mandating provision. 

### Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007). Standing a l one, the First Amendment does not "command the paym ent of money." 

### United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983); 

### see also Jiron v. United States, 118 Fed. Cl. 190, 199 (2014). As to plaintiffs due process claims under the Fifth Amendme nt , these, too, are not within our coui-t's jurisdiction

. The Fifth Amendment's Due Process Clau se is not money-mandating. 

### Smith v. United States, 709 F.3d 1114, 1 116 (Fed. Cir. 2013). 7 

### Plaintiffs constitutional cla ims, as a consequence, are not based on moneymandating provision s and thus fall outside this court's jurisdiction. 

### 6. The Court Lacks Jurisdiction over Plaintiff 's Claim for Non-Monetary Reliefand Punitive Damages Mister Hardin requests that this court order the Director of the Bureau of Prison s to comply with BOPs policies and reassign him to a different prison facilit y. Compl. at 14. Demands for such declaratory or injunctive relief are outs ide of the Court's jurisdiction. 

### Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997);

7 

### The Due Pro cess Clause of the Fifth Amendment may only be a basis for our jur isdict ion when a claim seeks the return of money paid to the fode ral government, under the rubric of an illegal exaction. 

### See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed. Cir. 1996); 

### Coleman v. United States, No. 1 3-431C, 2014 WL 949984, at *3 (Fed. Cl. Mar. 7, 2014).

- 6 -

### Brun son v. United States, No. 1 0

- 837C, 2011WL27 8 4596, at *2 (Fed. CL Jul y 1 2, 20 11 )

. As an additiona l basis for the Cou rt's a uthority to issue the declaratory relief p l a intiff seeks, he arg u es that this court h as j urisdiction under 28 U

. S.C. 

### § 1361 , a statute which enables district cour ts to compel a n officer of the U n ite d States t o perform a duty. CompL at 10. The Court of Federal Cl aims is n ot a fede ral d istrict court. 

### Ledford u. 

### United States, 297 F.3d 1378 , 1382 (Fed. Cir. 2002). As such, this power gi ve n to district courts does n ot e x tend to t h e Court. Plaintiff conte n ds t h at gov ernment officials violate d the Bureau of Priso n s pro gram stateme nt 510 0

-2, d ated October 7, 1982. Compl. at 6- 7. But, no money-mandating pro vision of th is regulation ha s b een ide ntified to supp or t our court's jurisdiction. And fin a lly, our court lacks jurisdictio n t o award punitive damages. 

### Garn er v. United S tates, 230 Ct. CL 941 , 9 4 3 (1982). T h e relief t h at the plaint iff seeks i s beyo nd ou r cou rt's juri sdi ction an d, hence, its power.8 

### III. C O NC LUSIO N For the forego i ng re asons, the defenda n t's motion t o d ismiss this case p ursuant to RC FC 12 (b)(l) is 

### GRANTED due to the plaintiffs fa ilure to state a claim within thi s court's jurisdiction. The Cl eI'k is directed to close the case. 

### IT IS SO ORDE R E D

.

B Pla intiffs unoppose d m otion for 

### in forma p auperis status is 

### GRANTED. Prisoners seeking to proceed 

### in forma pauperis are require d to pay , over t i me, the filing foe i n full. 28 U.S.C. § 19 1 5(b). Thus , p l aintiff shall be assessed , as a partial payme n t of this court' s filin g fe e, an in itial sum of twe nty porcent of t h e gre a ter of ( 1) the avera ge monthly d eposits into his acco unt , or (2) t h e average monthly b alance in his a ccount for the six-mon th perio d immediately precedi ng tho filing of h is complaint. 

### Id. § 1 9 15(b)(l). Thereafter, l\!Ir. Hardin shall be re quired to make m onthly payme n ts of twe nty percent of the pre ceding month's i nco me credited to h is acco unt. 

### I d. § 1 9 1 5(b)(2). The age n cy having cu stody of pl aintiff shall forward payme n ts from p l aintiffs acco u nt to the Clerk of t h e Court of Federal Cla ims each t i me the a ccount balance exceeds $10 and until s u ch t i me as the filing fee is paid in full

. 

### Id.

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