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No. l5-1486C

(Filed: December 23. 201 5)

NOT FOR PUBLICATION

FILED

t)EC 2 3 2015

U.S. COURT OF

FEDERAL CLAIMS

MILTON THOMAS WALTON,

Plaintiff,

THE LJNITED STATES,

Pro Se Complaint; Sua Sponte

Dismissal for Lack of Subject Matter

Jurisdiction under RCFC 12(hX3); Not in

Interest ofJustice to Transfer Under 28

u.s.c. $ 1631.

Defendant.

Milton Thomas Walton, Lexington, OK, pro se.

ORDER AND ORDER OF DISMISSAL

CAMPBELL-SMITH, Chief Judge

On December 8, 2015, plaintiff in the above-captioned case, Mr. Milton Thomas

Walton, appearing p4je, filed a complaint in this court "pursuant to 28 USCA $ 1491

Medical Malpractice." ECF No. 1. On that same date, plaintiff filed an application to

appear in forma pauperis, seeking permission to proceed without paying the court's filing

fee. ECF No. 3.

For the reasons explained more fully below, the court GRANTS the IFP

application and finds that it lacks jurisdiction over Mr. Walton's complaint. The court

further finds that it is not in the interest ofjustice to transfer the complaint to a district

court. Accordingly, the court sua sponte DISMISSES plaintiff s complaint for lack of

jurisdiction pursuant to Rule 12(h)(3) ofthe Rules ofthe United States Court ofFederal

Claims (RCFC).

I. Plaintiff s Application to Proceed In Forma Pauperis

With his complaint, Mr. Walton also filed an application to proceed in forma

pauperis (IFP). Appl. IFP, Dec. 8, 2015, ECF No. 3. Pursuant to 28 U.S.C. $ 1915, a

"court of the United States" is permitted to waive filing fees and security under certain
circumstances.r See 28 U.S.C. $ l9l5(aX1). As explained by the website maintained by

the court regarding pro se information, "in forma pauoeris" is defined as "[p]ermission to

sue without prepayment offees, given by the court to a person who does not have

financial means to pay." See Pro Se Information, http://www.uscfc.uscourts.gov/pro-seinformation (last visited Dec. 22,2015).

Mr. Walton's application consisted of a motion, an affidavit affirming that he has

no access to assets, and his prison account statement dating back to May 24,2015. Id.

Mr. Walton is a prisoner of the Lexington Correctional Center in Lexington, Oklahoma.

See Appl. IFP 1.2 A prisoner who brings suit in a federal court is subject to a limitation

on proceeding in forma pauperis-commonly known as the "three strikes rule."

In no event shall a prisoner bring a civil 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 of

serious physical injury.

28 U.S.C. $ 1915(9)(2012). On review, the court does not find any civil action brought

by Mr. Walton in forma pauperis that was dismissed on the ground that it was frivolous,

malicious, or failed to state a claim upon which relief may be granted' Thus, Mr. Walton

is not precluded from requesting that the filing fee be waived.

As of November 9, 2015, Mr. Walton's only assets amounted to $315.34, the sum

in his prison account largely accumulated from gifts. Appl' IFP, 1, 4' The court

concludes that Mr. Walton does not have sufficient resources to satis$ the court's filing

fee. "[A]lthough [a] litigant need not be absolutely destitute, granting IFP status calls for

showing that paying for the costs of the suit would make it difficult to afford the 'bastc

necessities of life."' See Murphy v. United States, No. 14-536C, 2014 WL 3510222, at

* I n.1 (Fed. Cl. July 16,2014) (quoting Williams v. Court Servs. & Offender Supervision

Agency for D.C., 878 F. Supp. 2d 263,266 (D.D.C.2012)), recons. denied' No. 14-536C,

2014 WL 3841874 (2014).

I The Court ofFederal Claims, while not generally considered to be a "court ofthe

United States" within the meaning of Title 28 the United States Code, is deemed to be a

,,court ofthe United States" for purposes of this statute, and thus has jurisdiction to grant or

deny IFP applications. See 28 U.S.C. S 2503(d) (deeming the Court of Federal Claims to be

"a court ofthe United States" for the purposes of28 U.S.C' S 1915).

2 A prisoner is defined as "any person incarcerated . . . in any facility who is . . .

convicted ofl, [and] sentenced for. . . violations of criminal law." 28 U.S.C. $ 1915(h).
Having made the requisite showing, Mr. Walton's IFP application is GRANTED.

II. Legal Standards

A. Evaluating Subject Matter Jurisdiction

"subjecrmatter jurisdiction may be challenged at any time by the parties or by the

courr sua sponte." Folden v. United States ,379 F .3d 1344, 1354 (Fed. Cir. 2004) (citing

Fanning. Phillips & Molnar v. West, 160 F.3d 7 17, 720 (Fed. Cir. I 998)); see also

Metabolite Labs. Inc. v. Lab. Com. of Am. Holdings,370 F.3d 1354, 1369 (Fed. Cir'

2004) ("Subject matter jurisdiction is an inquiry that this court must raise sua sponte,

even where, as here, neither party has raised this issue."). "In deciding whether there is

subject-matter jurisdiction, "the allegations stated in the complaint are taken as true and

jurisdiction is decided on the face of the pleadings."' Folden, 379 F.3d at 1354 (quoting

Shearin v. United States,992F.2d 1 195, 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. Kemer, 404 U.S. 519' 520 (1972); see

Vaizburd v. United States, 384 F.3d 1278, 1285 n.8 (Fed. Cir.2004) (stating that

pleadings drafted by pro se parties "should . . . not be held to the same standard as

[pleadings drafted by] parties represented by counsel"). However, pro se plaintiffs must

siill meet jurisdictional requirements. Bernard v. United States, 59 Fed. Cl. 497,499

(2004), affd, 98 F. App'x 860 (Fed. Cir.2004); see also Kelley v' Dep't ofLabor, 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 pro se litigants only."). If the court

determines that it does not have subject matter jurisdiction, it must dismiss the claim.

Rules of the United States Court of Federal Claims (RCFC) 12(h)(3).

The Tucker Act provides for this court's jurisdiction over "any claim against the

United States founded either upon the Constitution, or any Act of Congress or any

regulation ofan 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. $ 1a91(a)(l) (2012) (emphasis added). A plaintiff must "identiff a substantive

right for money damages against the United States separate from the Tucker Act itself'

foi the court to exercise jurisdiction over a claim. Todd v. United States' 386 F.3d 1091'

1094 (Fed. Cir. 2004). The substantive source of law allegedly violated must "'fairly be

interpreted as mandating compensation by the Federal Govemment."' United States v.

Navajo Nation, 556 U.S. 28'7,290 (2009) (quoting United States v' Testan,424 U 'S' 392,

400 (1976)).
B. Discussion

As set forth below, plaintiff s complaint must be dismissed for lack of subject

matter jurisdiction pursuant to RCFC 12(hX3), and the court finds that a transfer of

plaintiff s case to another federal court is not appropriate.

1. The Court Does Not Have Jurisdiction Over Plaintiff s Claims

Plaintiffs "tort ctaim of medical malpractice for negligence and or breach of

contract" falls outside this court's jurisdiction. Pl.'s Compl. 1; 28 U.S.C. $ la91(aXl).

Plaintiff s demand for compensation is based on allegations that a Dr. Charles R' Kuhn, a

Major in the United States Air Force, performed a different surgery on Mr. Walton than

what Mr. Walton had requested. Pl.'s Compl. passim. With his complaint, Mr. Walton

also submitted a copy of a July 17, 2015 decision of the Board of Veteran's Appeals (The

Board). Pl.'s Compl. l0-13. The Board determined that although no service treatment

records ofany surgery were available, there was sufficient evidence to show that Mr.

Walton underwent surgery based on later physical examination records and the existence

of a military travel order showing Mr. Walton was transferred to a hospital near the

alleged date of his surgery. Pl.'s Complaint 12 (" I'he Board thus finds that the evidence

wcighs in t'avor of a linding that the Veteran underwent surgery on the base of his penis

while in service, and any residuals of that stlrgery are therefore eligible fbr service

connection."). The Board remanded Mr. Walton's case to the Department of Veterans

Affairs Regional Office in Muskogee, Oklahoma, ibr further proceedings. Mr. Walton

states that he filed a clairn in this court because he believes that "the [Veteran's Affairs]

compensation clairn was filed erroneously ...and ...that the claim on rcvicw will be

denied again in the final analysis." Pl.'s Compl. 13.

Mr. Walton seelns to argue that upon his revieu'of the records produced while his

claim rvas on appeal. he now has a claim for Medical Malpractice fbr consideration by

this court. Id. Plaintiff "invokes jurisdiction under, (28 $ l49l) Medical Malpractice."

Pl.'s Compl. 1. But, plaintiff s claim sounds in tort, see Zhengxins v. United States, 7l

Fed. Cl. 732,739 (2006), affd, 204 F. App'x 885 (Fed. Cir' 2006), and the Tucker Act

plainly excludes tort claims lrom the court's jurisdiction, 28 U.S.C. $ 1491(a)(l); Keene

Corp. v. United States, 508 U.S. 200,214 (1993).

Accordingly, plaintiff s complaint must be dismissed pursuant to RCFC 12(hX3)

for lack of subject matter jurisdiction.

2. Transfer of the Case to Another Court Is Not Appropriate

The court now considers whether "it is in the interest ofjustice" to transfer

plaintiff s complaint to another court of the United States under 28 U.S'C. $ 1631' See

Tex. Peanut Farmers v. United States, 409 F.3d 1370,137415 (Fed. Cir. 2005) (stating
that the Court of Federal Claims should consider whether transfer is appropriate once the

court has determined that it lacks jurisdiction). Section 163 I states in pertinent part:

Whenever a civil action is filed in a court as defined in section 610 of this

title or an appeal, including a petition for review of administrative action, is

noticed for or filed with such a court and that court finds that there is a want

ofjurisdiction, the court shall, if it 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. $ 163 l;see 28 U.S.C. $ 610 (defining courts as "courts of appeals and district

courts of the United States, the United States District Court for the District of the Canal

Zone, the District Court of Guam, the District Court of the Virgin Islands, the United

States Court of Federal Claims, and the Court of Intemational Trade"). "The phrase 'if it

is in the interest ofjustice' relates to claims which are nonfrivolous and as such should be

decided on the merits." Gallowav Farms. Inc. v. United States,834F.2d 998, 1000 (Fed.

Cir. 1987); see id. (stating that "[f]rivolous claims include 'spurious and specious

arguments"' (quoting Devices for Med.. Inc. v. Boehl,822F.2d 1062, 1068 (Fed. Cir.

1987)).

"A decision to transfer rests within the sound discretion of the transferor court, and

the court may decline to transfer the case '[i]f such transfer would nevertheless be futile

given the weakness of plaintiff s case on the merits."' Spencer v. United States, 98 Fed.

C|.349,359 (2011) (alteration in original) (quoting Faulkner v. United States, 43 Fed. Cl.

54, 56 (1999). "The basic test ... for determining ifa case should be transferred is

whether it would be in 'the interest ofjustice' to do so." Busby School of N. Cheyenne

Tribe v. united states, 8 cl. ct. 588, 595 (1985).

Because Mr. Walton has previously brought his claim to the Department of

Vctcrans Affairs, sc<: supra Part II.B.1, and thc appeal ofthat claim appears to be

ongoing. it is not in the interest of.justice to transl-er this casc to another venue for

duplicative proceedings.3 Thus, transfer of this case is not appropriate.

III. Conclusion

For the foregoing reasons, the court GRANTS the IFP application and finds that it

lacks jurisdiction over plaintiff s claims. The Clerk of Court is directed to DISMISS

plaintifls complaint for lack of jurisdiction. The Clerk of Court will enter judgment for

defendant. No costs.

' The current status of Mr. Walton's Veterans' Affairs claim is unknown as the most

recent information orovided bv Mr. Walton is from Julv 2015. See Pl.'s Comol. l0-13.
IT IS SO ORDERED.

ATRICIA E. CAMPB

ChiefJudge