No. 17-1853C (Filed: May 3, 2018) NOTFORPUBLICATION 

### MAY

- 32018

U.S. COURT OF FEDERAL CLAIMS

KIM ANTHONY POLONCZKY, ) ) ) ) ) ) ) ) ) ) Pro se Plaintiff; Motionto Dismiss for Lack ofJurisdiction; RCFC l2(b)(1 ); Failure to Establish Jurisdiction; Defendant Other Than the United States; Claims Against State Officials and Agencies; Review ofOther Federal Courts; Constitutional Claims; Tort Claims. Pro Se Plaintiff,



### v.

THE UNITED STATES, 1

Defendant.**~~~~~~~~~~~~~)** 

### OPINION DISMISSING PLAINTIFF'S COMPLAINT FORLACKOFJURISDICTION

KimAnthony Polonczky ("plaintiff' or "Mr. Polonczky") filed hispro se complaint againstthe United States ("the government") onNovember 27, 2017. On January 26, 2018, in lieu ofan answer, the government filed a motion to dismiss for lack ofsubject matterjurisdictionpursuant to Rule 12(b)(1) ofthe Rules ofthe Court of Federal Claims ("RCFC") or, in the alternative, for failure to state a claim upon which reliefcan be grantedpursuantto RCFC 12(b)(6). See Def.'s Mot. to Dismiss for Lack of Jurisdiction, or, Alternatively, for Failure to State a Claim ("Def.'s Mot.") at 1, Docket No. 9. The plaintifffiled a response on February 12, 2018, and the government filled a reply on March 1, 2018. Additionally, the plaintifffiled a motion to admit additional evidence onMarch 12, 2018, filed a motion to takejudicial notice on March 23, 2018, and filed a motion to supplement evidence and takejudicial notice onMarch 26, 2018. The government filed a response to the plaintiffs motion to admit additional evidence on March 26, 2018. On March 28, 2018, the court granted the plaintiffs motions to admit

1The plaintiffs complaint was filed against the United States government, the Social Security Administration, and the United States Judicial System. Because under Rule lO(a) ofthe Rules of the United States Court ofFederal Claims, any claims filed in the Court ofFederal Claims must be filed against the United States as the sole defendant, the United States was substituted as the defendant in the caption. See, e.g., Lea v. UnitedStates, 126 Fed. Cl. 203, 203 n.l, reconsideration denied, No. 15-292C, 2016 WL 2854257 (Fed. Cl. May 10, 2016), ajj"d, 662 F. App'x 925 (Fed. Cir. Oct. 6, 2016); Gharb v. UnitedStates, No. 12-91lC,2013 WL 4828589, at *2 (Fed. Cl. Sept. 9, 2013); Grant v. UnitedStates, No. 13-473C, 2014 WL 128634, at *l n.l (Fed. Cl. Jan. 7, 2014).

7017 

## 14so- DODO- 1346 4803additional evidence, to takejudicial notice, and to supplement evidence. See DocketNo. 16. For the reasons discussed below, the government's motion to dismiss for lack of subject matterjurisdiction is GRANTED.

I. BACKGROUND

The following facts are taken from the plaintiff's complaint. Mr. Polonczyk's complaint sets forth his claims relating to the conduct ofthe United States government, the United States Social Security Administration, and the United States Judicial System,

as well as the actions ofprivate parties and various state and federal entities thathe has not named as defendants but discusses in his complaint. Mr. Polonczyk challenges the removal ofa lawsuit he filed in Florida state court against, among others, Microsoft from the Circuit Court in and for Escambia County to the United States District Court for the Northern District ofFlorida and the subsequent dismissal ofhis lawsuit. See Comp!. at 4-19. See also Polonczykv. Gates, No. 3:16-CV-599-RV-GRJ, 2017 WL 1164726, at *1 (N.D. Fla. Mar. 16, 2017), report andrecommendation adopted, No. 3:16-CV-599-RVGRJ, 2017 WL 1159105 (N.D. Fla. Mar. 28, 2017), appeal dismissed, No. 17-11415-B, 2017 WL 4570540 (11th Cir. May 1, 2017). The plaintiffhad asserted that Microsoft (and the other defendants) infected his computerwith a virus that destroyed his hard drive and erased his intellectual property, committed home invasion and computer invasion, harassed him, stole his intellectual property, and violated the Racketeer Influenced and Corrupt Organizations Act ("RICO"), among otherthings. See Comp!. at 15-19. The plaintiffcontends that the federal governmentprovides special privileges and protections to Microsoft. See Comp!. at 6-7, 11. Mr. Polonczyk alleges that the federal court permitted, protected, and promoted the conspiracy between Microsoft and the other defendants by allowing their continued violation ofstate laws. Comp!. at 6. He additionally asserts that Judge Roger Vinson stole his identity by "refilling a removed [action] (signed by [the] samejudge, ordered by [the] samejudge and sealed by [the]
samejudge)" in federal district court in the plaintiff's name withoutthe plaintiff's permission and asserts that Judge Vinson furthered the conspiracy by dismissing the plaintiffs lawsuit in order "to protectthe Defendant Conspiracy from a state suit through doublejeopardy in a [s]tate [a]ction[.]" Comp!. at 6.

The plaintiffalleges thatthe state and federal courts "violated" his "Due Process Rights2by not providing the paperwork

... or following the Rules ofProcedure in transferring the [a]ction from the State Court backto the Federal Courtby allowing a 'notice' [ofremoval]

... instead ofapleading

... as required to transferthe action" and denied him "equal and fair access to the courts for redress." Comp!. at 7. The plaintiff further contends that "[t]heirrefusal to provide equal access to the court system as guaranteed by the U.S. Constitution is intentional tort discrimination against the

2 Although the complaint at one point refers to "the [p]laintiffs 1st Amendment Due Process Rights[,]" the First Amendment ofthe United States Constitution does not contain any due process rights. See Comp!. at 7. Due process rights are contained within the Fifth and Fourteenth Amendments to the Constitution.

2[p]laintiff." Comp!. at 8. He additionally asserts that the court system, the federal court judges, lawyers, and the federal government discriminated against him as a disabled,pro se litigant and thus violated the Americans with Disabilities Act ("ADA") and the Constitution. See Comp!. at 7-9, 17, 24. See generally Comp!. at 15, 22-24, 37.

Mr. Polonczyk also maintains that the U.S. government has required him "to enter into a contract, Social Security," and "[o]nmany occasions[,] the Social Security Administration and the United States has [sic] intentionally, oppressively and deliberately breached this contractwith the [p]laintiffand even attempted to invent a [f]elony charge against the [p]laintiffso [h]e can be separated from his entitlementpermanently." Comp!. at 4, 33. See also id. at 30-38. He asserts that the federal government and the Social Security Administration have "removed [his] contractual fiducial [sic] rights and entitlements to the automatic cost ofliving adjustment [(COLA)] and his rights to Medicare Health Insurance while still deducting (embezzling) the Medicarepayments from his entitlements." Comp!. at 33. Additionally, the plaintiffalleges that the

Administrative Law Judge for Social Security, exactly as the United States District Court Judge and the Illinois District Court Judge did, violated the [p]laintiffsrights and invented his own statute and made up an onset date [for the plaintiffs debilitating brain hemorrhage] without having any [statutory] authority,jurisdiction, evidence, orreason exceptto intentionally, hinder and discriminate against the [d]isabledPro-SE [p]laintiffand protecttheparty who was violating enacted [statutes]. (ALJ [made] up a new onset date, Federal Judge filed a lawsuit in the [p]laintiffs name, and the Ill. District Court [made] up a [statute] for un-emancipation.)
Comp!. at 37. See also id. at 27-29.

In addition, Mr. Polonczyk's complainttouches upon certain criminal matters involving criminal charges against him which he alleges were improperly brought. See Comp!. at 13-15, 20-21, 24-26, 33.

Mr. Polonczyk seeks a total of$8,172,618.46 in damages from the defendants for his claims, $360,618.46 in damages for the Social Security disability payments he alleges
were improperly removed, $12,000.00 in damages for his unpaid medical costs, and $7,800,000.00 in damages from his suit against Microsoft, and requests the court either review de novo the lawsuit he filed against Microsoft (and the other defendants) orreturn that lawsuit to a Florida state court otherthan Escambia County (or, alternatively, the International Court ofJustice). Total Remedies at 1, DocketNo. 1-4; Comp!. at 29, 38. He also requests the court set aside the "average amount owed to all Social Security recipients for the 10 yearperiod on non-COLA increases" as calculatedby the plaintiff, which comes to $1.39944158 x 1019

, and give "notification

... to all Social Security beneficiaries that they must apply to receive their past due COLA increases and allow the



### 3[p]laintiffan oversight [role] in the distribution ofthese funds." Comp!. at 39; Total Remedies at 1.

The government filed a motion to dismiss this action pursuantto RCFC 12(b)(l) for lack ofsubject matterjurisdiction and, alternatively, pursuantto RCFC 12(b)(6) for failure to state a claim upon which reliefcan be granted. See Def.'s Mot. at 1. The government argues that the plaintifffailed to allege a claim that falls within this court's jurisdictionbecause the United States Court ofFederal Claims lacksjurisdiction over:(!) the decisions ofdistrict courts; (2) parties otherthan the United States; (3) tort claims; (4) claims involving criminal matters; (5) violations ofthe due process and equal protection clauses ofthe Fifth and Fourteenth Amendments; (6) violations ofthe ADA; (7) claims related to Social Security benefits; and (8) "allegations ofbreach ofcontract based on Social Security numbers." See Def.'s Mot. at 4-8. Alternatively, the government argues that this court should dismiss this action for failure to state a claim pursuant to RCFC 12(b)(6) because the plaintiffs complaint fails to raise any plausible claims against the United States. Def.'s Mot. at l, 3-4, 7-8.

II. DISCUSSION

For the reasons discussed below, the court agrees with the government that it lacks subject matterjurisdictionto adjudicate all ofMr. Polonczyk's claims. Jurisdiction represents a threshold matter that a court must resolve before it may proceedto the merits ofa case. See, e.g., RuhrgasAGv. Marathon Oil Co., 526 U.S. 574, 577 (1999); Frazier
v. UnitedStates, 683 F. App'x 938, 939 (Fed. Cir. 2017). The court accepts as true the uncontested allegations asserted in a plaintiffs complaint when evaluating a motion to dismiss for lack ofsubject matterjurisdiction. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Although the court holds a complaint filed by aproseplaintiffto "less stringent standards than formal pleadings drafted by lawyers,"Haines v. Kerner, 404 U.S. 519, 520 (1972), this leniency does not excuse apro se plaintiff"from his or her burden of proving, by apreponderance ofthe evidence, that the courtpossesses [subject matter] jurisdiction." Gravatt v. UnitedStates, 100 Fed. Cl. 279, 286 (2011). See also Colbert v. UnitedStates, 617 F. App'x 981, 983 (Fed. Cir. 2015) ("No plaintiff, prose or otherwise, may be excused from the burden ofmeetingthe court'sjurisdictionalrequirements.").

The United States Court ofFederal Claims only hasjurisdiction to hear claims against the United States. See UnitedStates v. Sherwood, 312 U.S. 584, 588 (1941) (explaining that the Court ofFederal Claims' 'jurisdiction is confined to the rendition of moneyjudgments in suits brought for thatreliefagainst 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." (citations omitted)). Therefore, to the extentthat the plaintiffis claiming damages based on the actions ofprivate parties, such as Microsoft, the plaintiffs complaint must be dismissed for Jack ofsubjectmatter jurisdiction. See, e.g., Comp!. at 15-19. Additionally, the Federal Circuit has explained that "the Court ofFederal Claims does not havejurisdictionto hear claims against states,



### 4localities, state and local government entities, or state and local government officials and employees." Smith v. UnitedStates, 99 Fed. Cl. 581, 583 (2011) (citing Moore v. Pub. Defender's Office, 76 Fed. Cl. 617, 620 (2007)). Therefore, the plaintiffs claims against the state courts and state government officials must be dismissed for lack ofsubject matterjurisdiction. See, e.g., Comp!. at 7-8. The Federal Circuit has also heldthat "the Court ofFederal Claims does not havejurisdictionto review the decisions ofdistrict courts orthe clerks ofdistrict courts relating to proceedings before those courts." Joshua

v. UnitedStates, 17 F.3d 378, 380 (Fed. Cir. 1994). Therefore, this court must also dismiss Mr. Polonczyk's allegations against the United States District Court for the Northern District ofFlorida and against Judge Rodger Vinson who presided over his lawsuit against Microsoft.

The plaintiffs remaining claims against the United States must also be dismissed for lack ofsubject matterjurisdiction. This court lacks subject matterjurisdiction over claims based on violations ofdue process or equal protection rights because those constitutional rights are not money-mandating. "Althoughthis court may exercise jurisdiction over claims 'founded

... upon the Constitution,' the scope ofthis court's jurisdiction over constitutional claims is limited to claims arising underprovisions ofthe Constitution that mandate the payment ofmoney." Miller v. UnitedStates, 67 Fed. Cl. 195, 199 (2005) (quoting 28 U.S.C. § 149l(a)(l)). See also Ealy v. UnitedStates, 120 Fed. Cl. 801, 805 (2015). Itis well established that the Court ofFederal Claims does not possessjurisdiction to adjudicate claims underthe Due Process clauses ofthe Fifth and Fourteenth Amendments because these constitutional provisions are not moneymandating. See Harvey v. UnitedStates, 683 F. App'x 942, 943 (Fed. Cir. 2017) ("The [Court ofFederal Claims'] limitedjurisdiction does not extend to claims brought under

..

.the Due Process clauses ofthe Fifth and FourteenthAmendments, because they do not contain money-mandating provisions."); Lewis v. UnitedStates, 476 F. App'x 240, 244 (Fed. Cir. 2012) ("Neither the due process clauses nor the equal protection clauses ofthe Fifth and FourteenthAmendments to the Constitution 'obligate the governmentto pay money damages."' (quoting Collins v. UnitedStates, 67 F.3d 284, 288 (Fed. Cir. 1995); Mullenberg v. UnitedStates, 857 F.2d 770, 773 (Fed. Cir. 1988))). Therefore, the court must dismiss Mr. Polonczyk's claims based on violations ofhis due process rights under the Fifth and Fourteenth Amendments, as well as those based onthe denial ofequal
access to the courts. See Comp!. at 7-8, 13, 15. Nor does the Federal Court ofClaims havejurisdiction over the plaintiffs claims under the FirstAmendment because "the First Amendment, 'standing alone, cannotbe

... interpreted to command the payment of money."' Hoodv. UnitedStates, 659 F. App'x 655, 662 (Fed. Cir. 2016) (quoting United States v. Connolly, 716 F.2d 882, 887 (Fed. Cir. 1983) (en bane)).
Additionally, the plaintiffs claims sounding in tort, including his allegations of intentional tort discrimination, must also be dismissed for lack ofsubject matter jurisdiction. The TuckerAct explicitly states that the "United States Court ofFederal Claims shall havejurisdiction

... in cases notsounding in tort." 28 U.S.C. § 149l(a)(l) (emphasis added). See Spitters v. UnitedStates, 710 F. App'x 896, 897 (Fed. Cir. 2018)



### 5-, --------------------------

("Because '[t]he Court ofFederal Claims is a court oflimitedjurisdiction,' it 'lacks jurisdiction over tort actions against the United States."' (quotingBrown v. UnitedStates,

105 F.3d 621, 623 (Fed. Cir. 1997) (internal citations omitted))).
Further, this court must dismiss the plaintiffs claims relating to violations ofthe Americans with Disabilities Act for lack ofsubject matterjurisdictionbecause that statute "is not a money-mandating source oflaw." Allen v. UnitedStates, 546 F. App'x 949, 951 (Fed. Cir. 2013). Similarly, this court lacksjurisdiction overMr. Polonczyk's allegations againstthe Social Security Administration and the federal government related to his Social Security benefits. See Comp!. at 30-38. Underthe Social Security Act, the United States district courts possess exclusivejurisdiction over claims against the Social Security Administration. See Brown 

### v. UnitedStates, 607 Fed. App'x 983, 985 (Fed. Cir. 2015) (42 U.S.C. §405 "specifies the exclusive mechanism for determining the right to Social Security benefits, and provides exclusivejurisdictionto the district courts over appeals from Social Security determinations denying benefits.");Arunga v. UnitedStates, 465 F. App'x 966, 967-68 (Fed. Cir. 2012) (holding that "the statute makes clearthat the Court ofFederal Claims lacksjurisdiction [over challenges relating to Social Security benefits] because claims for social security benefits must be filed in a federal district court."). Finally, the plaintiffs claims arising out ofhis criminal convictions must also be dismissed for lack ofsubject matterjurisdiction because "[t]he Court ofFederal Claims does not have the powerto review and overturn convictions orto review in detail the facts surrounding a conviction or imprisonment." Zakiya v. UnitedStates, 79 Fed. Cl. 231, 234-35 (2007), afj"d, 277 F. App'x 985 (Fed. Cir. 2008).

III. CONCLUSION

Forthe reasons stated above, this court does not have subject matterjurisdiction
over any ofthe plaintiffs claims and thus, Mr. Polonczyk's complaint is DISMISSED for lack ofsubject matterjurisdictionunder RCFC 12(b)(l). 3 The clerk is directed to enterjudgment accordingly. No costs.

IT IS SO ORDERED. 

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3 Under 28 U.S.C. § 1631, this court has the authority to transfer a case over which it lacks jurisdictionto "any other such court in which the action or appeal could have been brought atthe time it was filed or notice" ifthetransfer "is in the interests of justice[.]" 28 U.S.C. § 1631. However, the Court ofFederal Claims "is unable to transfer any case to the state court system, as no state court falls within the definition in [28 U.S.C] § 610." Mendez-Cardenas v. United States, 88 Fed. Cl. 162, 168 (2009) (citing 28 U.S.C. § 610). See also Staten v. UnitedStates, No. 15-308C, 2015 WL 4441672, at *4 (Fed. Cl. July 17, 2015). Similarly, this court also cannot transferthe plaintiff's claims to the International Court ofJustice. See 28 U.S.C. § 610.



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