# I n t h e U n i t e d S t a t e s C o u r t o f F e d e r a l C l a i m s

No. 12-788C (F iled: November

27, 2012)

************************************* THOMAS M. BRAD DY, JR ., *
* Plaintiff, *

*
v. *
* THE UNI TED STATES, *
* Def endant. *
*************************************

ORDER OF DISMISSAL

On Novembe r 19, 2012, plaintiff Thomas M. B raddy , J r., a f eder al inmate proc eedingpro se, filed a complaint alleg ing that the United States brea ched its oblig ation not to place him in the same prison a s his criminal codef endants. Plaintiff also filed a n application to proc eed in f orma pauper is. For the r easons se t forth below, the c ourt g rants the a pplication to proce ed in forma pauper is but dism isses plaintiff’s complaint for lack of jurisdiction.

I. BACKG ROUND

In May 2007, plaintiff enter ed into a plea agree ment with the United States in which he ag ree d to plead guilty

to three f elony char g es in violation of Title 18 of the United States Code: bank fr aud conspira cy , ag g ravated identity theft, and mone y

launder ing. He wa s sentence d to a

1 124-month term of imprisonment, which he is curre ntly serving . In J anuar

y or F ebrua

ry 2010, the United States plac ed plaintiff a nd one of his code fenda

nts in the same prison. B y doing so, plaintiff alleg es, the United States br eac hed both the plea ag ree ment and its obligations to keep plaintiff sepa

rate d from his code fenda

nts under the f

eder al prisons’ Centra l I nmate Monitoring Sy stem. 2

The c ourt derive s the fac ts in thi s section from the c omplaint, the plea agree ment in 1 United States v. Br addy , No. 4:07-cr -00048-RB S-TEM-1 (doc ket entry 21), and the following court de cisions: Bra ddy

v. Fox, 76 F. App’x 51 (5th Cir. 2012) (per curiam); Br addy

v. Fox, No. 1:10cv401, 2012 WL5002171 (E.D. Te x . Oct. 17, 2012); a nd Br addy

v. Fox, No. 1:10cv401, 2011 WL4399820 (E.D. Te x . Sept. 21, 2011).
The United States B urea u of Prisons uses the Central I nmate MonitoringSy stem to 2 “monitor[] and contol[] the transf er, te mporary

rele ase . . . , a

nd community

activities of ce rtainI t appea rs that plaintiff pre viously raised his bre ach of

contra ct alleg ations in a petition for a writ of habe as cor

pus that he filed in the United States D istrict Court for the Ea stern District of Texas in 2010. In his petition, pl aintiff conte nded that he w as depr ived of the e ffe ctive 3 assistance of counse l, he was innoc ent of the mone y launder ing c harg e, his sentenc e wa s inappropriately

enhanc ed, the United States br eac hed the plea agree ment, and cour

t interfer ed with the United States’ per formanc e. The district court found that plaintiff’ s claims lacke d merit and denie d the petition. On appea l, the United States Court of Appea ls for the F ifth Circuit (“F ifth Circuit”) af

firmed the bulk of

the district court’s de cision, but remande d the ca se to the district court, direc ting the c ourt to specific ally addre ss plaintiff’s claim that the United States brea ched the plea a g ree ment. In its remand dec ision, the district court ag ain denied pla intiff’s petition, finding that it lacke d jurisdiction over the c laim; that, alternatively , the claim fa iled on its merits; and that, in any event, the c laim was moot beca use plaintiff wa s transfe rre d to a differ ent fa cility

befor e he f

iled his petition. P laintiff’s appe al of that de cision is pending be fore the Fif th Circuit.

In addition to his breach of contra ct claims, plaintiff a lleg es that by placinghim in the same prison a s one of his code fenda nts, the United States deprive d him of his constitut ional right to due proc ess and violated his c ivil rights under 28 U.S.C. §§ 1981 and 1985. He a lso alleg es that he wa s improperly

denied a writ of habe as cor

pus. In his pray er f

or re lief, plaintiff see ks an order direc ting the district a

nd appellate courts to expedite his case; a ll releva nt benef its arising from the United States Constitution, hi s plea a g ree ment, and the Centra l Inmate Monitoring Sy stem; the “absolute r ight to ‘sove reignty ’ and to e x tinguish ‘c itiz enship’”; $8,000,000 in “r eal” damag es; $20,000,000 in compensator y damag es; “[a]ny

and all other

incidents or commer cial
commerc e”; a

nd all other re lief the c ourt dee ms just and proper.

inmates who pre sent specia l needs for manag ement.” 28 C.F .R. § 524.70 (2012). Centra l I nmate Monitoring c ases f

all into severa l categ ories, including“Separ ation.” “Sepa ration” c ases a

re define d as: “Inmates who may not be conf

ined in the same institution (unless the instit ution has the ability to preve nt any

phy sical conta ct betwe en the se paratees) w ith other specif ied individuals who are pr esently housed in fede ral c ustody or who may

come into fe dera l custody in the future .” I d. § 524.72(f)

. In an ea rlier c omplaint filed in the United States Court of Fe dera l Claims (“Court of 3 Fe dera l Claims”), plaintiff alleg ed that the United States br eac hed the sa me plea a g ree ment on other g rounds: the district court judg e who a pproved the ag ree ment did not adopt the prosec utor’s re commendation of a forty -five- perc ent sentenc e re duction. Br addy v. United States, No. 09-481C, slip op. at 1 (Fe d. Cl. Oct. 14, 2009).

-2-II. DISCUSS ION

A. Jurisdiction in the United States C ourt of Fe deral Claim s
Whether the c ourt has jurisdiction to decide the merits of a c ase is a thr eshold matter. See Steel Co. v. Cit izens for a B etter Env’ t, 523 U.S. 83, 94-95 (1998). “ Wit hout jurisdiction the court c annot proc eed at all in any cause . J urisdiction is power to dec lare the law, a nd when it
cea ses to exis t, the only

function re maining to the c ourt is that of announc ing the fac t and dismiss ing the cause .” Ex parte McCar dle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties or the court on its own initiative may challeng e the e x istence of subject matter jur isdiction at any time. Folden v. United States, 379 F.3d 1344, 1354 (F ed. Cir. 2004). When consideringwhether to dismi ss a complaint for la ck of jurisdiction, a c ourt assumes that the a lleg ations in the complaint are true a nd construes those a lleg ations in plaintiff’s favor . Henke v. United States, 60 F.3d 795, 797 ( Fe d. Cir. 1995). A pro se plaintiff’s complaint, “‘how ever

inartfully pleade d,’ must be held to ‘less string ent standar ds than forma l pleading s draf ted by lawy ers’ . . . .” Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines v. K erne r, 404 U.S. 519, 520-21 (1972)) . Howeve r, a pr o se plaintiff is not excused from mee ting ba sic jurisdictional require ments. See He nke, 60 F .3d at 799 (“ The fa ct that [the plaintiff] acted pro se in the draf

ting of his complaint may

explain it s ambig uities, but itdoes not excuse its failures, if such there be.”) . In other wor ds, a pro se plaintiff is not ex cused f rom his burden of pr oving, by a pre pondera

nce of the evidenc e, that the c ourt possesses jurisdiction. See McNutt v. Gen. Motors Acc eptanc e Corp., 298 U.S. 178, 189 (1936); Rey nolds v. Army

& A ir For ce E x ch. Serv., 846 F .2d 746, 748 (F ed. Cir. 1988).

The a bility of the Court of F eder al Claims to entertain suits ag ainst the United States is limit ed. “T he United States, a s sovere ign, is immune fr om suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584, 586 (1941) . The wa iver of immunity “ca nnot be implied but mus t be unequivoca lly expressed.” United States v. King , 395 U.S. 1, 4 (1969).

The Tuc ker A ct, the princ ipal statute g overning the jurisdiction of this court, waive s sovere ign immunity

for c laims ag ainst the United States, not sounding in tort, that ar e founde d upon the United States Constitut ion, a fe dera l statute or re g ulation, or an e x press or implied contra ct with the United States. 28 U.S.C. § 1491(a)( 1) (2006) . Howeve r, the Tuc ker A ct is
mere ly a jurisdictional statute and “ does not cre ate a ny substantive rig ht enforc eable ag ainst the United States for mone y

damag es.” United States v. Testan, 424 U.S. 392, 398 (1976) . Instead, the substantive rig ht must appear in a nother sourc e of la

w, such a s a “mone y -mandating constitutional provision, st atute or r egulation that has bee n violated, or a n express or implied contra ct with the United States.” L oveladies H arbor , Inc. v. United States, 27 F .3d 1545, 1554 (F ed. Cir. 1994) (e n banc)

.

-3-B. Th e United State s as Defendan t

As an initial matter, the c ourt addre sses plaintiff’s c laims ag ainst the bevy of public officia ls he identified in his complaint, including f eder al judg es, fe dera l prosecutor s, and fe dera l prison officia ls. I t is well settled that the United States is the only proper defe ndant in the Court of F eder al Claims. See 28 U.S.C. § 1491(a)(1) (providingthat the Court of F eder al Claims has jurisdiction over cla ims ag ainst the United States); R. U.S. Ct. Fed. Cl. 10(a) ( requiringthat the United States be de signated as the de fenda nt in the Court of Fe dera l Claims); S tephenson v. United States, 58 Fe d. Cl. 186, 190 (2003) (“[T]he only proper defe ndant for a

ny matter be fore this court is the United States, not its officers, nor any other individual.”). T his court does not possess jurisdiction to hear c laims ag ainst individual feder al g overnme nt officials. See Br own v. United States, 105 F.3d 621, 624 ( Fe d. Cir. 1997) (“T he Tuc ker A ct g rants the Court of F eder al Claims jurisdi ction over suits ag ainst the United States, not ag ainst individual feder al offic ials.”). Indeed, the jurisdiction of the Court of Fe dera l Claims “is confined to the re ndition of money judgme nts in suit s broug ht for that re lief ag ainst the United States, . . . and if the relief soug ht is ag ainst others than the United States, the suit as to them must be ignore d as bey ond the jurisdiction of the court.” Sherwood, 312 U.S. at 588. Ac cording ly , the cour t lacks jurisdiction over pla intiff’s claims ag ainst all parties other than the United States.

C. Breac h of

the P lea Agre em ent

Plaintiff first contends that the United States’ failure to keep him sepa rate from his codef endants c onstitut es a br eac h of his plea a g ree ment. The Tuc ker A ct re cog nizes ex plicitly that express or implied contrac ts with the United States can pr ovide the basis for jurisdiction in this court, 28 U.S.C. § 1491(a)(1) , and a written plea a g ree ment is properly char acte rized as an express contrac t, Sanders v. United States, 252 F .3d 1329, 1334 (F ed. Cir. 2001). How ever , while a plea

ag ree ment is specifica lly enfor cea ble, money

damag es ar e ava ilable for a brea ch only if the agree ment “cle arly and unmistakably

subjects the g overnme nt to monetary liability for any brea ch.” I d. at 1335; acc ord Ka nia v. United States, 650 F .2d 264, 268 (Ct. Cl. 1981); P hang v. United States, 87 Fe d. Cl. 321, 328-30 (2009), af f’d, 388 F . App’x 961 (Fed. Cir. 2010)

. Moreove r, “c laims for bre ach of plea a g ree ments and other a g ree ments unique to the criminal justice sy stem should be brought in the courts in which they wer e neg otiated and e x ecute d,” and not in the Court of Fe dera l Claims. S ander s, 252 F.3d at 1336; see also Ka nia, 650 F.2d a

t 268 (noting that “the r ole of the judicia ry in the high f

unction of enf

orcingand policingthe cr iminal law is assig ned to the cour ts of g ener al jurisdiction and not to this court”). A r eview of plaintiff’s plea

ag ree ment with the United States reve als that it does not require the United States to pay money damag es in the eve nt of a bre ach. A ccor dingly , the cour t lacks jurisdiction over plaintiff’s alleg ation that the United States bre ache d the plea a g ree ment.

D. Breac h of

the Obligation s Under the Ce ntral Inm ate M onitoring S ystem

Plaintiff simi larly

alleg es that the United States a g ree d to keep plaintiff se parated from his codefe ndants under the Central Inmate MonitoringSy stem, and by failingto do so breac hed

-4-an implied contra ct. To establish the e x istence of a contr act with the United States–whether express or implied–plaintiff must demonstrate “( 1) mutuality of intent to contrac t, (2) consideration, (3) lack of

ambig uity

in offer and ac cepta

nce, a nd (4) a uthority on the par

t of the g overnme nt ag ent enter ing the contra ct.” Suess v. United States, 535 F .3d 1348, 1359 (F ed. Cir. 2008). Howe ver: An ag ency ’s per formanc e of its re gulatory or sover eig n functions does not cr eate contra ctual oblig ations. Rather, ther e must be an obje ctive manife station of voluntary , mutual assent . . . . To satisfy its burden to prove suc h a mutuality of intent, a plaintiff must show, by objective e vidence , the exist ence of an of fer and a
rec iproca l acc eptanc e.

I d. at 1360 (c itations and internal quotation marks omitted). The regulations gove rningthe Central Inmate MonitoringSy stem ref lect that a “ separ ation” cla ssification is not an expression of a mutual intent to contra ct. Rather, the classification is a one-sided de termination by prison officia ls over which a

n inmate has no c ontrol. See 28 C.F.R. § 524.73(a ) (r efle ctingthat an initial classification is made by prison officia ls and then docume nted in the inmate’s r ecor d); cf. id. § 524.76 (noting that an inmate may object to a c lassification once it is m ade by filing a n appea l with the Administ rative Reme dy Prog ram). T hus, the classification of plaintiff or one of his codefe ndants could not constitute an off er to whic h United States expected a response

. Wit hout an offe r, there can be no contra ct, and in the a bsence of a c ontrac t, the court lac ks jurisdiction over plaintiff’s c laim that the United States brea ched c ontrac tual obligations under the Central Inmate MonitoringSy stem. 4

I t bear s noting that the c ourts that have a ddresse d claims that the United States ac ted in 4 contravention of a Centr al Inmate Monitoringclassification have tre ated those c laims as constitutional claims or tort claims. See Parr ott v. United States, 536 F.3d 629, 636-39 ( 7th Cir. 2008) (a naly zing the plaintiff’ s alleg ation that he should have been se para ted from a

nother inmate under

the Central Inmate MonitoringSy stem as a tort c laim); Ba bcock v. White, 102 F.3d 267, 268-73 (7th Cir. 1996) (a ddressingthe plaintiff’s c laim that prison officials fa iled to keep him separate from other

inmates under the Eig hth Amendment to the United States Constitut ion);
see a lso Roque v. United States, No. 3:09cv533 (JBA), 2012 WL603271, at *4 (D. Conn. F eb. 24, 2012) (“ The Gove rnment bre ache s its duty of ca re if prison staff fa ils to keep two inmates separ ate . . . .” ). To the e x tent that plaintiff’s cla im can be c onstrued as a tort claim or a c laim arisingunder the Eig hth Amendment to the United States Constitut ion, this court lacks jurisdiction. See 28 U.S.C. § 1491(a)(1) (excluding c laims sounding in tort from the jurisdiction of the Court of F eder al Claims); Trafny v. United States, 503 F.3d 1339, 1340 ( Fe d. Cir. 2007) (“The Court of Fe dera l Claims does not have jurisdiction over cla ims arising unde r the Eig hth Amendment, as the Eig hth Amendment is not a money -mandating pr ovision.” (interna l quotation marks omitted)); Alves v. United States, 133 F.3d 1454, 1459 (F ed. Cir. 1998) (“ To the extent that . . . alleg ations sound in tort, the Court of Fede ral Claims lacks jurisdiction under the Tucke r Act . . . .”)

. -5-E. Other Allegations

In addition to his breach of contra ct claims, plaintiff a lleg es that the United States deprive d him of his constitut ional rig ht to due proce ss, violated his civil rights under 28 U.S.C. §§ 1981 and 1985, and imprope rly denied him a wr it of habea s corpus. The Court of Fe dera l Claims lacks jurisdiction over claims ar ising unde r the Due Process Clauses of the Fif th and Four teenth Amendme nts to the United States Consti tution because neither c lause is money -mandating. L eB lanc v. United States, 50 F .3d 1025, 1028 (F ed. Cir. 1995) (“ [T] he Due Process Clauses of

the Fif th and Four

teenth Amendme nts . . . [ are not] a suff icient basis for jurisdiction because they

do not mandate pa

y ment of money

by the g overnme nt.”); Mullenber gv. United States, 857 F.2d 770, 773 ( Fe d. Cir. 1988) (holdingthat the Due Proc ess Clauses of the Fifth a nd Four teenth Amendme nts “do not trigg er Tuc ker A ct jurisdiction in the courts”) . The court a lso lacks jurisdiction to entertain c laims based on 42 U.S.C. §§ 1981 and 1985. See Marlin v. United States, 63 F ed. Cl. 475, 476 (2005) (“ [T] he Court does not have jurisdiction to consider c ivil rights claims brought pursuant to 42 U.S.C. §§ 1981, 1983, or 1985 beca use jurisdiction over cla ims arising unde r the Civil Ri g hts Act reside s exclusively in the district courts.”) . And, bec ause a writ of habe as cor

pus may only “be grante d by

the Supreme Court, a

ny justice there of, the district cour ts and any

circ uit judge w ithin their respec tive jurisdictions,” 28 U.S.C. § 2241(a), the Court of F eder al Claims is notempower ed to enter tain habea s petitions. See L edfor d v. United States, 297 F.3d 1378, 1381 ( Fe d. Cir. 2002). Moreove r, the c ourt lacks the authority

to reviewa district cour

t’s decision deny

ing a habea s petition; t hat authority lies with the fede ral c ourts of appe al. See g ener ally U.S. Ba ncorp Mor

tg. Co. v. B onner Ma ll P’ship, 513 U.S. 18, 27 (1994) (“ Congr ess has pre scribed a primary route, by appea l as of rig ht and
cer tiorari, throug h which par ties may seek r elief f

rom the leg al conse quence s of judicial judgme nts. To allow a par ty who steps off the statutory path to employ

. . . [a] collater al attac k on the judg ment would–quite apar t from any

considerations of fairne ss to the parties–disturb the order ly operation of the fede ral judicial sy stem.”); Joshua v. United States, 17 F.3d 378, 380 (F ed. Cir. 1994) (“ [T] he Court of F eder al Claims does not have jurisdiction to review the decisions of district cour

ts . . . relatingto proce eding s befor e those c ourts.”). In sum, the court lacks jurisdiction over a ll of plaintiff’s cla ims.

F . Appli cation to P roce ed In For m a P auperis
Plaintiff filed, conc urre nt with his complaint, an application to proce ed in forma pauper is. Courts of the United States ar e per mitted to waive the pre pay ment or pay

ment of filingfee s and
secur ity under c erta in circumstanc es. 28 U.S.C. § 1915(a)(1) . Plaintiffs wishing to proc eed in 5

Whil e the Court of F eder al Claims is notg ener ally considere d to be a “ court of the 5 United States” within the mea ning of title 28, the court has jurisdiction to g rant or de ny applications to proce ed in forma pauper is. See 28 U.S.C. § 2503(d) (de emingthe Court of Fe dera l Claims t o be “a

court of the United States” for the purposes of

section 1915); see also Matthews v. United States, 72 F ed. Cl. 274, 277-78 (2006) ( rec og nizi ngthat Congr ess ena cted

-6-forma pa

uperis must submit an affidavit that lists all of their assets, de clar es that they are unable to pay the fe es or g ive the sec urity , and states the na ture of the action and the ir belief tha t they are entitled to redre ss. I d. Fur ther, prisone rs must file “a c ertified c opy of the trust fund a ccount statement (or

instit utional equivalent) f or the prisone r for

the 6-month period immediately prec edingthe filing of the c omplaint . . . obtained from the a ppropriate officia l of ea ch prison which the pr isoner is or wa s confined.” I d. § 1915(a) (2).

Plaintiff has satisfied most of the re quirements by stating his lac k of income a nd assets, decla ringthat he is unable to pa y the filing fee , and submitting a state ment from the de tention fac ility ref lectingan ac count balanc e of $17.12. H e does not, howe ver, state the nature of his action in his application. Ne verthe less, beca use his complaint contains a suf ficient de scription of his claim, the court c oncludes that plaintiff ha s satisfied all of the statutory require ments. The court ther efor e g rants plaintiff’ s application to proce ed in forma pauper is and waive s plaintiff’s prepa y ment of the filingfee

. Notwithstanding the court’s w aiver , prisoners se ekingto proce ed in forma pauper is are require d to pay , over time, the f iling fe e in full. I d. § 1915(b). Thus, plaintiff sha ll be assessed, as a pa rtial pay ment of the c ourt’s filingfee , an initial sum of twenty perc ent of the greater of ( 1) the ave rag e monthly

deposits into his acc ount, or (2) the aver ag e monthly balanc e in his acc ount for the six-month period immediately prec edingthe filingof his complaint. I d. § 1915(b)( 1). There afte r, plaintiff shall be r equire d to make monthly pay ments of twenty

perc ent of the prec edingmonth’s income cr edited to his acc ount. I d. § 1915(b)( 2). The a g ency havingcustody of plaintiff shall for

war d pay ments from plaintiff’s a ccount to the c lerk of the Court of Fe dera l Claims each time the a ccount ba lance exceeds $10 a nd until such tim e as the filing f ee is pa id in full. I d.

III. CONCLUSION

For the re asons set for

th above, the c ourt DISMISSE S plaintiff’s complaint for lack of jurisdiction. I n addition, the court GR ANTS plaintiff’s application to procee d in forma pa uperis, but directs plaintiff to pay the filing fee in full pursuant to 28 U.S.C. § 1915(b), as set for th above. T he cle rk shall enter judgme nt acc ording ly

. IT IS SO ORDERED.

MARGARET M. SW EENEY J udg e

the Court of F eder al Claims Technica l and Proce dural Improvements Ac t of 1992, authorizing the cour t to, among othe r thing s, adjudicate applications to proce ed in forma pauper is pursuant to section 1915).

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