# ORIGINAL Jrn tbt Wnittb**~tatts** 

# Q.Court ofjf 

# tbtral Q.Claims

No. 16-1 lOC (Filed: August 19, 2016) 

# FILED AUG I 92016 U.S. COURT OF 

### ************************************* LORD NOBLE KATO BAKARI EL, Plaintiff,

v. THE UNITED STATES, Defendant. 

## * * * * 

## * * * * * ************************************* Lord Noble Kato Bakari El, Mesa, AZ, pro se. . . . A 1 . . FEOPERAL CLAIMS Motion to Dismiss; pp icat10n to roceea In Forma Pauperis; Pro Se Plaintiff; Collateral Attack ofState Court Judgment; Fraud; Mistake; Conspiracy; Trespass; FifthAmendment Taking; Lack of Jurisdiction

Jessica L. Cole, United States Department ofJustice, Washington, DC, for defendant. OPINION AND ORDER SWEENEY, Judge Before the court is defendant's motion to dismiss plaintiffs prose complaint for lack of subject matterjurisdiction and for failure to state a claim upon which reliefcanbe granted pursuant to Rules 12(b)(l) and 12(b)(6), respectively, ofthe Rules ofthe United States Court of Federal Claims ("RCFC"). In addition, plaintiffhas filed an application to proceed in forma pauperis. Plaintiffalleges thatthe Superior Court ofArizona in Maricopa County ("Superior Court ofArizona") unlawfully entered ajudgment offorcible detainer againsthim for illegally occupyingprivate property and ordered him to vacate that property. Although plaintiffs application to proceed in forma pauperis is granted, the courtpossesses nojurisdictionto hear plaintiffs claims. Accordingly, the court must dismiss his complaint. I. BACKGROUND PlaintiffLord Noble Kato Bakari El alleges that he is the legal heir ofthe estate ofhis wife, WilmaJean Ford, in Maricopa County, Arizona. The property at issue is located at 1502 South Lee Circle, Mesa, Arizona 85204. Previously, Carrington Property Services, LLC brought an action for forcible detainer in the Superior Court ofArizona against plaintiffand his wife, seeking theirremoval from that property. On December 3, 2015, Commissioner James Morrow ofthe Superior Court ofArizona entered ajudgment against the defendants in that case for forcible detainer, ordering them to vacate the property by January 2, 2016; ifthey did not, the court stated, a Writ ofResolution would be issued. In addition, the defendants were orderedto pay the plaintiff$539 in costs and $125 in attorney's fees.

USPS TRACKING#: &CUSTOMER RECEIPT 9114 9999 4431 3548 1336 64 For Tracking or inqUiries go to USPS.com or call 1·800-222·1811.On January 21, 2016, plaintifffiled suit inthis court, alleging that the Superior Court of Arizona failed to recognize that he owns the subject propertypursuantto a deed and a land patent. According to plaintiff, the property "passed to [him] by way ofgrant deed recorded

... in the Maricopa County Recorder's Office." Comp!. 7. Plaintiffasserts that he is in possession ofthe original land patent ofthe property at issue. Consequently, plaintiffcontends, the Superior Court ofArizona "failed to recognize

... the Defendants['] Grant deed that was executed on April/28/15 before the allege[d] trustee sale on July/02/15." Id. at 10. Plaintiffargues that the court'sjudgment was unlawful-asserting claims offraud, mistake, trespass, conspiracy, unauthorized administration ofproperty without right, and "diversity"-and seeks $1.75 million in damages. Id. at 8. In addition, plaintiffrequests that this court render the Superior Court of Arizona's decision "void" for "fraud[,] mistake[,] and surprise." Id. Defendant filed a motion to dismiss plaintiffs amended complaint pursuantto RCFC 12(b)(l) for lack ofsubject matterjurisdiction and RCFC 12(b)(6) for failure to state a claim upon which reliefcanbe granted.' The motion is fully briefed, and the court deems oral argument unnecessary. II. LEGAL STANDARDS A. Tucker Act The ability ofthe United States Court ofFederal Claims ("Court ofFederal Claims") to entertain suits against the United States is limited. "The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver ofimmunity "cannotbe implied but must be unequivocally expressed." United States v. King. 395 U.S. 1, 4 (1969). The Tucker Act, the principal statute governing thejurisdiction of this court, waives sovereign immunity for claims against the United States not sounding intort that are founded upon the United States Constitution, a federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C. § 149l(a)(l) (2012). However, the Tucker Act is merely ajurisdictional statute and "does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in another source oflaw, such as a "money-mandating constitutional provision, statute orregulation that has been violated, or an express or implied contract with the United States." Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en bane). B. RCFC 12(b)(l) Motion to Dismiss Whether the court hasjurisdictionto decide the merits ofa case is a threshold matter. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Withoutjurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that ofannouncing the fact and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties, or
1 Because the court concludes that it lacksjurisdiction over plaintiffs claims, it does not address defendant's RCFC 12(b)(6) motion. -2-the court, sua sponte, may challenge the existence ofsubjectmatterjurisdiction at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006). When considering whether to dismiss a complaint for lack of jurisdiction, a court assumes that the allegations inthe complaint are true and construes those allegations in the plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A prose plaintiffs complaint, "'howeverinartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers'

...." Hughes v. Rowe, 449 U.S. 5, 10 n.7 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). However, a proseplaintiffis not excused from meeting basicjurisdictionalrequirements. See Henke, 60 F.3d at 799 ("The fact that [the plaintiff] acted pro se inthe drafting ofhis complaint may explain its ambiguities, but it does not excuse its failures, ifsuchthere be."). In other words, a pro se plaintiffis not excused from his burden ofproving, by a preponderance ofthe evidence, that the court possessesjurisdiction. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The plaintiffcannot rely solely on allegations inthe complaint, but mustbring forth relevant, adequate proofto establish jurisdiction. See McNutt, 298 U.S. at 189. Ultimately, ifthe court finds that it lacks subject matterjurisdiction, then it must dismiss the claim. Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); see also RCFC 12(h)(3) ("Ifthe court determines at any time that it lacks subjectmatterjurisdiction, the court must dismiss the action."). III. DISCUSSION
Inhis complaint, plaintiffalleges that the Superior Court ofArizona'sjudgment was unlawful-asserting claims offraud, mistake, surprise, trespass, conspiracy, unauthorized administration ofproperty without right, and "diversity"-andrequests that this court render that judgment void. Comp!. 8. The court lacksjurisdiction overplaintiffs claims. Consequently, plaintiffs complaint must be dismissed. A. The United States Is the Only Proper Defendant in the Court ofFederal Claims Although the court has read the complaint inthe light most favorable to plaintiff, it cannot locate any allegations that implicate the United States.' Plaintiffinstead challenges the decision ofa state court, butthis court does not possessjurisdictionto entertain claims against state courts or state officials. See 28 U.S.C. § 1491; Sherwood, 312 U.S. at 588 (concluding that jurisdiction in the Court ofFederal Claims "is confinedto 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" (citations omitted)); accord Trevino v. United States, 557 F. App'x 995, 998 (Fed. Cir. 2014) (unpublished decision) (affirmingthe trial court's decision that it did notpossessjurisdiction over claims against "states, localities, state and local government officials, state courts, state prisons, or state employees"); see also Jefferson v. United States, 104 Fed. CL 81, 89 (2012)

2 Plaintiffalleges thathis land patent is registered with the Bureau ofLand Management ofthe United States Department ofthe Interior, but he does not allege any claims against this or any other federal agency. -3-(stating thatthe court lacksjurisdiction over claims against state agencies andprivate individuals). B. The Court ofFederal Claims Cannot Entertain a Collateral Attack Against the Judgment ofAnother Court Further, this court lacksjurisdiction to review the decisions ofstate courts. As explained by the United States Supreme Court: Congress has prescribed a primary route, by appeal as ofright and certiorari, through which parties may seek relieffrom the legal consequences of judicial judgments. To allow a party who steps offthe statutory pathto employ

... [a] collateral attack onthejudgment would-quite apart from any considerations of fairness to the parties-disturb the orderly operation ofthe federaljudicial system. U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship. 513 U.S. 18, 27 (1994); accord Vereda, Ltda. v. United States, 217 F.3d 1367, 1375 (Fed. Cir. 2001) ("[T]he Court ofFederal Claims cannot entertain a taking claimthatrequires the court to 'scrutinize the actions of another tribunal." (quoting Allustiarte v. United States, 256 F.3d 1349, 1352 (Fed. Cir. 2001))); Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) ("[T]he Court ofFederal Claims does nothave jurisdictionto review the decisions ofdistrict courts

... relating to proceedings before those courts."). C. Even ifPlaintiffAlleged Claims Against the United States, the Court Lacks Jurisdiction to Entertain Them Moreover, to the extentthatplaintiffalleges claims against the United States rather than the Superior Court ofArizona, this court lacksjurisdictionto entertainthem. First, plaintiffs claims thatthe government acted unlawfully due to fraud, mistake, conspiracy, trespass, or other wrongful conduct sound in tort. Jumahv. United States, 90 Fed. Cl. 603, 607-08 (2009) (stating that claims oftrespass or conspiracy sound in tort); Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) (holding that claims "that defendant engaged in negligent, fraudulent, or other wrongful conduct when discharging its official duties" sound in tort). Itis well settled that the Court ofFederal Claims lacksjurisdiction over tort claims. See 28 U.S.C. § 1491(a) ("The United States Court ofFederal Claims shall havejurisdictionto renderjudgmentupon any claim against the United States

... in cases not sounding intort."); Rick's Mushroom Serv., Inc. v. United States, 521F.3d1338, 1343 (Fed. Cir. 2008); Woodruffv. United States, 80 Fed. Cl. 806, 816 (2008); McCauley v. United States, 38 Fed. Cl. 250, 264 (1997) (''Jurisdictionto hear tort claims is exclusively granted to the United States District Courts under the Federal Tort Claims Act."), affd, 152 F.3d 948 (Fed. Cir. 1998). Second, plaintiffs reliance onArticle VI ofthe United States Constitution in support ofhis claims is misplaced. Article VI provides:

-4-All debts contracted and engagements entered into, before the adoption ofthis Constitution, shall be as valid againstthe United States under this Constitution, as under the Confederation. This Constitution, and the laws ofthe United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, underthe authority ofthe United States, shall be the supreme law ofthe land; and thejudges in every state shall be bound thereby, anything in the Constitution or laws ofany State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members ofthe several state legislatures, and all executive andjudicial officers, both ofthe United States and ofthe several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States. U.S. Const. art. VI. There is nothing in Article VI that indicates that it is money-mandating, and therefore, this court does not possessjurisdiction over claims that it was violated by the government. El v. United States, 122 Fed. Cl. 707, 709 (2015); accord Marshall v. United States, No. 09-431C, 2010 WL 125978, at *3 (Fed. Cl. Jan. 14, 2010) (unpublished decision). Third, plaintiffargues that the United Nations Declaration ofthe Rights ofIndigenous People provides a basis for the exercise ofthis court'sjurisdiction. Plaintiffis mistaken. Under the Tucker Act, the court possessesjurisdictionto entertain claims founded upon the United States Constitution, federal statutes and regulations, and contracts withthe United States. 28 U.S.C. § 149l(a)(l). The TuckerAct does not provide the court withjurisdictionto entertain claims based upon United Nations declarations. Id.; see also id. § 1502 ("Except as otherwise provided by Act ofCongress, the United States Court ofFederal Claims shall not have jurisdiction ofany claim against the United States growing out ofor dependent upon any treaty entered into with foreign nations."); Prophet v. United States, 106 Fed. Cl. 456, 464 (2012) (holding that various declarations and conventions do not conferjurisdiction on the Court of Federal Claims because they "are not acts ofthe United States Congress, signed by the President ofthe United States"). Moreover, plaintiffhas not referenced any statute providing this court withthe authority to entertain claims under the Declaration ofthe Rights ofIndigenous Peoples. Fourth, plaintiffcites Article III ofthe Articles ofConfederation, which recites: The said States hereby severally enter into a firm league offriendship with each other, for their common defense, the security oftheir liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made uponthem, or any ofthem, on account ofreligion, sovereignty, trade, or any otherpretense whatever. Articles ofConfederation of 1781, art. III. However, because the Articles ofConfederation were replaced by the United States Constitution in 1789, they are not a valid source oflaw. Nonetheless, even ifthey were, there is nothing in Article III indicating that it is moneymandating. The court therefore lacksjurisdiction over any claims that plaintiffalleges arises -5-

-----------·under Article III. See Kolakowski v. Sec'y ofHHS, No. 99-0625V, 2010 WL 5672753, at *141 (Fed. Cl. Spec. Mstr. Nov. 23, 2010) (explaining that the Articles ofConfederation were later replaced by the United States Constitution). Fifth, plaintiffreferences 43 U.S.C. § 59 and 43 U.S.C. § 83, which describe evidentiary rules governing copies ofland records. However, these statutes do not require or even discuss payment for a violation. Consequently, the court possesses nojurisdiction over any claims broughtpursuantto these statutes. Finally, to the extentthat plaintiffs allegations may be construed as raising a Fifth Amendmenttakings claim, plaintifffails to invoke this court'sjurisdiction. The Fifth Amendmentprohibits the federal government from takingprivate property for public use without payingjustcompensation. U.S. Const. amend. V. The Court ofFederal Claims possesses jurisdiction to entertain Fifth Amendmenttakings claims against the United States. See Morris v. United States, 392 F.3d 1372, 1375 (Fed. Cir. 2004) ("Absent an express statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court ofFederal Claims exclusive jurisdiction overtakings claims for amounts greater than $10,000."). However, to bring suit in the Court ofFederal Claims, a plaintiff"must concede the validity ofthe government action which is the basis ofthe taking claim

...." Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802- 03 (Fed. Cir. 1993); accord Reg'! Rail Reorg. Act Cases, 419 U.S. 102, 126-27 & n.16 (1974) ("[T]he Government action must be authorized. 'Thetaking ofprivate property by an officer of the United States for public use, without being authorized, expressly or by necessary implication, to do so by some act ofCongress, is not the act ofthe government,' and hence recovery is not available inthe Court ofClaims." (quoting Hooe v. United States, 218 U.S. 322, 336 (1910))). Plaintiffalleges that he was unlawfully forced to vacate the property at issue by the Superior Court ofArizona. In other words, plaintiffdoes not concede the lawfulness ofthe state court action. Accordingly, the court cannot exercise itsjurisdiction over any Fifth Amendmenttakings claim asserted by plaintiff.3 D. The Court Grants Plaintiff's Application to Proceed In Forma Pauperis Finally, as noted above, plaintifffiled, concurrent with his complaint, an application to proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915, courts ofthe United States are

3 Evenifthe court could exercisejurisdiction over a Fifth Amendment takings claim asserted by plaintiff, plaintiffwould not prevail on such a claim. To establish a Fifth Amendment taking, plaintiffwould first be required to "identif{y] a cognizable Fifth Amendment property interestthat is asserted to be the subject ofthe taking." Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013). "Property interests are created and defined by state law." Butner v. United States, 440 U.S. 48, 55 (1979). As a prerequisite to granting judgment in forcible detainer against plaintiff, the Superior Court ofArizona necessarily must have concluded thatplaintiffdid not have a valid property interest in the property at issue. Thus, the court'sjudgment could not constitute a Fifth Amendment taking. Cf. Vereda, Ltda, 217 F.3d at 1375 ("[T]he Court ofFederal Claims cannot entertain a taking claim that requires the court to 'scrutinize the actions of another tribunal." (quoting Allustiarte, 256 F.3d at 1352)).

-6-permitted to waive filing fees and security under certain circumstances.' See 28 U.S.C. 

### § 1915(a)(l); see also Hayes v. United States, 71 Fed. Cl. 366, 366-67 (2006) (concluding that 28 U.S.C. § 1915(a)(l) applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that lists all oftheir assets, declares that they are unable to pay the fees or give the security, and states the nature ofthe action and their belief that they are entitled to redress. 28 U.S.C. § l915(a)(l). Here, plaintiffhas satisfied all three requirements. The court therefore grants plaintiffs application and waives his filing fee. IV. CONCLUSION
In sum, the court GRANTS plaintiffs application to proceed in forma pauperis, and DISMISSES plaintiffs complaint for lack of jurisdiction. No costs. The clerk is directed to enterjudgment accordingly. IT IS SO ORDERED.

Judge

4 While the Court ofFederal Claims is not generally considered to be a "court ofthe United States" withinthe meaning oftitle twenty-eight ofthe United States Code, the court has jurisdiction to grant or deny applications to proceed in forma pauperis. See 28 U.S.C. § 2503(d) (deeming the Court ofFederal Claims to be "acourt ofthe United States" for the purposes of28 U.S.C. § 1915); see also Matthews, 72 Fed. Cl. at 277-78 (recognizing that Congress enacted the Court ofFederal Claims Technical and Procedural Improvements Act of 1992, authorizing the courtto, among other things, adjudicate applications to proceed in forma pauperis pursuantto 28 

## u.s.c. § 1915). -7-