# ORIGINAL
Jf

# ntbe mlniteb**~tates** 

# QCourt of jf 

# eberal QClaims

No. 15-1571C (Filed: February 5, 2016) 

# FILED FEB - 52016 NOT FORPUBLICATION U.S. COURT OF FEDERAL CLAIMS

PATRICK A. WHITE, SR., Plaintiff, 

### v. THE UNITED STATES, Defendant. ) ) Pro Se Complaint; Sua Sponte ) Dismissal for Lack ofSubjectMatter ) Jurisdiction under RCFC 12(h)(3) and ) 28 U.S.C. § 149l(a)(l); Notin Interest ) ofJustice to Transfer Under 28 U.S.C. ) §1631. ) )

### ~~~**~~ ~~** **~~~ ~~** **~~~)** Patrick A. White. Sr., Huntsville, TX, pro se. Michael A. Rodriguez, TrialAttorney, Commercial Litigation Branch, Civil Division, United States Department ofJustice, Washington, DC, for defendant. ORDERAND ORDER OF DISMISSAL CAMPBELL-SMITH, ChiefJudge On December 23, 2015, plaintiffin the above-captioned case, Mr. PatrickA. White, appearing pro se, filed a complaint in this court styled as "A[] complaint of retaliation and police brutality." 1 Compl. 1, ECF No. 1. Mr. White is aprisoner ofthe Texas Department ofCriminal Justice in Huntsville, Texas. 2 See IFP Appl. 3. Mr.

The United States appears as defendant in the case caption according to Rule lO(a) ofthe Rules ofthe United States Court ofFederal Claims (RCFC), which states that "[t]he title ofthe complaint must name all the parties

... with the United States designated as the party defendant." RCFC IO(a). Mr. White did not name the United States as a defendant in his complaint, or in any document he subsequently filed.

2 A prisoner is defined as "anyperson incarcerated

... in any facility who is

... convicted of, [and] sentenced for

...violations ofcriminal law." 28 U.S.C. § 1915(h).

### White also filed an application to appear in forma pauperis, seeking permissionto proceed without paying the court's filing fee. IFP Appl., Jan. 19, 2016, ECF No. 6. For the reasons explained more fully below, the court GRANTS 

### the IFP application and finds that it lacksjurisdiction over

### Mr. White's complaint. Accordingly, the court sua sponte DISMISSES 

### plaintiffs complaint for lack of jurisdictionpursuantto Rule 12(h)(3) ofthe Rules ofthe United States Court ofFederal Claims (RCFC). The court further finds that it is not in the interest of justiceto transfer the complaintto a district court. I. 

### Legal Standards The Tucker Actprovides for this court'sjurisdiction over "any claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan executive department, or upon any express or implied contractwith the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 

### 1491(a)(l) (2012). [I]thas been uniformly held, upon areview ofthe statutes creatingthe [Court ofFederal Claims] and defining its authority, that itsjurisdiction is confined to the rendition ofmoneyjudgments in suits brought for that reliefagainst the United States, and ifthe reliefsought is against others than the United States the suit as to them must be ignored as beyond thejurisdiction ofthe court. United States v. Sherwood, 312 U.S. 584, 588 (1941) (internal citations omitted). A plaintiffmust "identify a substantive right for money damages against the United States separate from the Tucker Act itself' for the court to exercisejurisdiction over a claim. Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004). The substantive source oflaw allegedly violated must'"fairly be interpreted as mandating compensation by the Federal Government."' United States v. Navajo Nation, 556 U.S. 287, 290 (2009) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). "Subject-matterjurisdiction may be challenged at any time by the parties or by the court sua sponte." Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004). "In deciding whether there is subject-matterjurisdiction, "the allegations stated in the complaint are taken as true andjurisdiction is decided on the face ofthe pleadings." Folden, 379 F.3d at 1354 (quoting Shearin v. United States, 992 F.2d 1195, 1195-96 (Fed. Cir. 1993)). Complaints filed by pro se plaintiffs are often held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).

2However, proseplaintiffs must still meetjurisdictional requirements. Kelley v. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) ("[A] court may not similarly take a liberal view of[a]jurisdictional requirement and set a different rule for prose litigants only."). Ifthe court determines that it does not have subject matterjurisdiction, it must dismiss the claim. Rules ofthe United States Court ofFederal Claims (RCFC) 12(h)(3). II. Plaintiffs Application to Proceed In FormaPauperis On January 19, 2016, Mr. White filed an application to proceed in forma pauperis (IFP). IFP Appl., ECF No. 6. Pursuant to 28 U.S.C. § 1915, a "court ofthe United States" is permitted to waive filing fees under certain circumstances. 3 See 28 U.S.C. § 1915(a)(1)(2012). As explainedby the website maintained by the court regarding prose information, "in forma pauperis" is defined as "[p]ermission to sue withoutprepayment offees, given by the court to a person who does not have financial means to pay." See Pro Se Information, U. S. Court ofFederal Claims, http://www.uscfc.uscourts.gov/pro-seinformation (last visited Feb. 4, 2016). Mr. White's application consisted ofa motion, an affidavit affirming that he has no access to assets, and a certified copy ofhis prison account statement dating backto July 1, 2015.4 Id. A prisoner who brings suit in a federal court is subject to a limitation on proceeding in forma pauperis-commonlyknown as the "three strikes rule."
Inno event shall aprisonerbring a civil action or appeal ajudgmentin a civil action orproceeding underthis section iftheprisonerhas, on 3 ormoreprior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court ofthe United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon whichreliefmay be granted, unless the prisoner is under imminent danger ofserious physical 

### lllJUry. 28 U.S.C. § 1915(g).

3 The Court ofFederal Claims, while not generally considered to be a "court ofthe United States" within the meaning ofTitle 28 the United States Code, is deemed to be a "court ofthe United States" for purposes ofthis statute, and thus hasjurisdictionto grant or deny IFP applications. See 28 U.S.C. § 2503(d) (deeming the Court ofFederal Claims to be "a court ofthe United States" for the purposes of28 U.S.C. § 1915).

4 The certified copy ofMr. White's prison account statement is dated January 7, 2016 and shows a balance current to that date of$2.28, and a six month average balance of$0.00. IFP Appl. 3.

3The court's review ofdecisions issued in prior federal lawsuits shows that 

### Mr. White has filed at least three complaints, while incarcerated,5 that a Texas district court has dismissed as being frivolous or for failure to state a claim upon which reliefmay be granted. See Dismissal Order, White v. Tex., No. 5: 10CV83 (W.D. Tex. Mar. 31, 2010), ECF No. 9 (dismissing complaint under 28 U.S

.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim upon which reliefmay be granted), appeal dismissed, No. 10- 50541 (5th Cir. Sept. 27, 2010); Order ofDismissal, White v. Tex. Dep't ofCriminal Justice, No. 4:10CV1625 (S.D. Tex. May 11, 2010), ECF No.6 (dismissing complaint under 28 U.S.C. § 1915(e)(2) and 28 U.S

.C. § 1915A as frivolous, malicious, and for failure to state a claim); White v. Garcia, No. 2:10CV137, 2010 WL 3199770, at* 1 (N

.D. Tex. Aug. 12, 2010) (dismissing complaintunder 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2) as frivolous and for failure to state a claimupon which reliefmay be granted); see also White v. Garcia, No. 2:10CV137, 2010 WL 3199781 (N.D. Tex. July 29, 2010), ECF No. 8 (recommending dismissal ofcomplaintunder 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2) as frivolous and for failure to state a claim upon which relief may be granted). This court previously dismissed a complaint by Mr. White for failure to pay the filing fee. White v. United States, No. 15-505 C, 2015 WL 6511536, at 

## *1 (Fed. Cl. Oct. 28, 2015). Upon receipt ofthis complaint, the court issued an opinion and order finding that, although Mr. White had accumulated "three strikes" under 28 U.S.C. § 1915(g), he sufficiently alleged that he is under imminentthreat ofserious personal injury, and thus, could proceed in forma pauperis. Order, Dec. 23, 2015, ECF No. 3. The court's order further set out that the claims made by Mr. White sounded in tort, and thus are notpart of thejurisdiction ofthis court. Id. (citing 28 U.S.C. § 1491 (a)(l) (court does not have jurisdictionto renderjudgmentupon any claim againstthe United States in cases sounding in tort); Hebertv. United States, 114 Fed. Cl. 590, 593 (2014) (failure to comply with court'sjurisdictional requirements not excused even for proseplaintiffs)). Mr. White was directed to "carefully consider whetherhe wants to do so, since ultimately he would be obligated to pay the entire $350 filing fee." Id. (citing 28 U.S.C. § 191S(b)(1) (prisoner bringing a civil action IFP shall be required to pay the full amount ofthe filing fee)). Mr. White responded with the filing ofhis IFP Application on January 19,2016.
BecauseMr. White has alleged that he is in imminent danger ofserious physical injury, his IFP application is GRANTED. Prisoners seeking to proceed IFP are required to pay, over time, the filing fee in full. See 28 U.S.C. § 1915(b)(l). Thus, plaintiffshall be assessed, as a partial payment ofthe court's filing fee, an initial sum oftwenty percent ofthe greater of(1) the average monthly deposits into his account, or (2) the average

5 Each case docket identifies Mr. White by his Texas Department ofCriminal Justice Number, 827179, the same number by which he is identified on this court's docket. See Pl.'s Mot. 3, ECF No. 6.
4monthly balance in his account for the six-month period immediately preceding the filing ofhis complaint. Id. Thereafter, Mr. White shall be required to make monthly payments oftwenty percent ofthe preceding month's income credited to his account. Id. The agency having custody ofplaintiffshall forward payments from plaintiffs account to the Clerk ofthe Court ofFederal Claims each time the account balance exceeds $10 and until such time as the filing fee is paid in full. Id.
III. Discussion As set forth below, plaintiffs complaint must be dismissed for lack ofsubject matterjurisdictionpursuant to RCFC 12(h)(3), and the court finds that a transfer of plaintiffs case to another federal court is not appropriate.
A. The Court Does NotHave Jurisdiction Over Plaintiffs Claims Mr. White's complaint does not clearly state against whom it is asserted. Instead, Mr. White identifies several law enforcement officers, prison guards, and the medical department where he is incarcerated. Comp

### I., passim. As Mr. White is a prisoner ofthe state ofTexas, the individuals he has identified are presumably state employees, not federal. This court'sjurisdiction is limited to certain claims "against the United States." 28 U.S.C. § 149l(a)(l); see also Sherwood, 312 U.S. at 588. Because no claim against any ofthese defendants could be construed as a claim against the United States, the Court ofFederal Claims lacksjurisdictionto hear plaintiffs claims against all non-Federal defendants. Even ifplaintiffhad directed his claim against the United States, his complaint of "retaliation and police brutality" still falls outside this court'sjurisdiction. Compl. 1; 28 U.S.C. § 1491(a)(l). In his complaint, Mr. White makes several allegations, including that he is being (1) physically assaulted by employees and inmates at his correctional center; (2) subjected to a "racial medical department"; (3) sexually harassed; and (4) starved and underfed. Compl. 1-2. Mr. White's complaint requests that the states of Mississippi or New Yorkbe given "the authority to supervise all racial, retaliatory, events." Id. at 7. But, plaintiffs claim sounds in tort, and the TuckerActplainly excludes tort claims from the court'sjurisdiction, 28 U.S.C. 

### § 1491(a)(l); Keene Corp. v. United States, 508 U.S. 200, 214 (1993). Accordingly, plaintiffs complaint mustbe dismissed pursuantto RCFC 12(h)(3) for lack ofsubject matterjurisdiction.
B. Transfer ofthe Case to Another Court Is NotAppropriate The court now considers whether "itis in the interest of justice"to transfer plaintiffs complaint to another court ofthe United States under 28 U.S.C. § 1631 (2012).

5

### See Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1374-75 (Fed. Cir. 2005) (stating that the Court ofFederal Claims should consider whether transfer is appropriate once the court has determined that it lacksjurisdiction). Section 1631 states in pertinent part: Whenever a civil action is filed in a court as defined in section 610 ofthis title or an appeal, including a petition for review ofadministrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, ifit is in the interest ofjustice, transfer such action or appeal to any other such court in which the action or appeal could have been brought.

... 28 U.S.C. § 

### 1631; see 28 U.S.C. § 

### 610 (2012) (defining courts as "courts ofappeals and district courts ofthe United States, the United States District Court for the District ofthe Canal Zone, the District Court ofGuam, the District Court ofthe Virgin Islands, the United States Court ofFederal Claims, and the Court ofInternational Trade"). "The phrase 'ifit is in the interest of justice' relates to claims which are nonfrivolous and as such should be decided on the merits." Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed. Cir. 1987); see id. (stating that "[flrivolous claims include 'spurious and specious arguments"' (quoting Devices for Med., Inc. v. Boehl, 822 F.2d 1062, 1068 (Fed. Cir. 1987)). "A decision to transfer rests within the sound discretion ofthe transferor court, and the court may decline to transfer the case '[i]fsuch transfer would nevertheless be futile given the weakness ofplaintiffs case on the merits."' Spencer v. United States, 98 Fed. Cl. 349, 359 (2011) (alteration in original) (quoting Faulkner v. United States, 43 Fed. Cl. 54, 56 (1999)). The majority ofMr. White's claims have been raised in prior law suits and are not new. The United States District Court for the Southern District ofTexas dismissed a similar complaint by Mr. White under 28 U.S.C. § 

### 1915(e)(2) and 28 U.S.C. § 

### 1915A as frivolous, malicious, and for failure to state a claim. White v. Tex. Dep't ofCriminal Justice, No. 4: 10CV1625 (S.D. Tex. May 11, 2010) (alleging being "harassed" and "targeted" in prison). The District Court cited to several prior cases arising out ofthe state ofTexas in which Mr. White made similar claims that were also dismissed as frivolous. Id. (citing White v. Collins, C.A. No. 07-cv-1098 (N.D. Tex. 2007) (dismissed for want ofprosecution); White v. State ofTexas, C.A. No. 10-cv-0083 (W.D. Tex. 2010) (dismissed as frivolous); White v. Collins, C.A. No. 07-cv-1097 (N.D. Tex. 2007) (dismissed for want ofprosecution)). Because it is clear that plaintiffhas already unsuccessfully made several attempts to bring his claims in the venue ofhis home state, the court can discern no identifiable nonfrivolous cause ofaction that would potentially have merit in another court. Thus, transfer ofplaintiffs complaint is not in the interest of justice.

6IV. Conclusion Forthe foregoing reasons, the court 

### GRANTS the IFP application and finds that it lacksjurisdiction overplaintiffs claims. The Clerk ofCourt is directed to 

### DISMISS plaintiffs complaint for lack of jurisdiction. The Clerk ofCourt will enterjudgmentfor defendant. No costs. IT IS SO ORDERED.

# ~~aJ3.**~p~1 -fV\**  l'ATRICIAE. CAMPBELL-SMITH ChiefJudge

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