# RIGINAL FILED 

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# <!ourt ofjfeberal <!Iaims AUG 2 52016 No. 15-l 175C (Filed: August 25, 2016) U.S. COURT OF 

### FEDERAL CLAIMS 

### ************************************* MELZA E. JORDAN, SR., Plaintiff,

v. THE UNITED STATES,
Defendant. 

### * 

## * * 

## * * * * Motion to Dismiss; Application to Proceed In FormaPauperis; Pro Se Plaintiff; Procedural Due Process; Federal Rules of Civil Procedure; 28 U.S.C. § 1331; Constitution ofthe State ofIllinois; "Bivens Action"; Second, Fourth, Fifth, Eighth, and FourteenthAmendments to the United 

## * States Constitution; Lack ofJurisdiction 

## * *************************************
MelzaE. Jordan, Sr., Joliet, Illinois, pro se. Courtney D. Enlow, United States Department ofJustice, Washington, DC, for defendant. 

### OPINION AND ORDER SWEENEY, Judge
Beforethe court is defendant's motion to dismiss plaintiffs pro se amended complaint for lack ofsubjectmatterjurisdictionpursuantto Rule 12(b)(1) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"). In addition, plaintiffhas filed an applicationto proceed in forma pauperis. Plaintiffalleges that Judge VirginiaM. Kendall ofthe United States District Court for theNorthern District ofIllinois ("district court")-inbothher individual and official capacity-various federal employees, andthe United States-as their employer-deprived him ofaccess to the district courtby dismissing his complaint against a particularhospital and certain doctors, and by ruling against him on various motions. Plaintiffbrings suitpursuantto several amendments to the United States Constitution, the Constitution ofthe State ofIllinois, and 28 U.S.C. § 1331, among other sources oflaw. Althoughthe court grants plaintiff's application to proceed in forma pauperis, it possesses nojurisdictionto hear his claims. Accordingly, the court grants defendant's motion and dismisses plaintiff's amended complaint. I. 

### BACKGROUND
PlaintiffMelzaE. Jordan, Sr. alleges that he previously brought suit inthe district court, and thathis case was assigned to Judge Virginia M. Kendall. According to plaintiff, his claims arose from his being "wrongfully seized and detained against [his] will in the Psychiatric Ward ofProvena St. Joseph Medical [T]reatment Facility, and from [his] being subjectto psychiatric drugs and

... to the fraudulent seizure ofmonies from [his] medical insurance carrier." Am. Compl. 6. OnMay 17, 2012, the district court dismissed his complaint for lack ofsubject matter

USPSTRACKJNG# 9114 9014 9645 0594 5522 21 & CUSTOMER For Tracking or inquiries go to USPS.com RECEIPT or call 1-800-222-1811.jurisdictionpursuant to Federal Rule ofCivil Procedure ("FRCP") 12(b)(1). Plaintiff subsequently moved for relieffromjudgmentpursuant to FRCP 60(b)(6) and for permission to file an amended complaint. OnJuly 3, 2012, the district court denied the motion for relieffrom judgment, but allowed plaintiffto file an amended complaint. Plaintifffiled an amended complaint on July 30, 2012.
On October 9, 2015, plaintifffiled suit in this court. Subsequently, defendant filed a motion to dismiss plaintiffs complaint, and then on March 14, 2016, plaintifffiled an amended complaint. Inhis amended complaint, plaintiffbrings suit against Judge Kendall in both her official and individual capacities, certain "unknown administrative assistants," and the United States-as their employer. Id. Plaintiffalleges that by dismissing his complaint, the district court "deprived [him] ofhis rights to the full and equal benefit of

...procedural due process" during the "limitedpre-trial proceedings." Id. at 2. Plaintiffcontends that defendants inthis case acted "intentionally, recklessly, and in careless disregard and in gross negligence." Id. Plaintiffcalls his case a "Bivens Action," and argues that his rights were violated under the district court's local rules; the Federal Rules ofCivil Procedure; Article I ofthe Constitution of the State ofIllinois; 28 U.S.C. § 1331; and the Second, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffseeks compensatory, consequential, general, proximate, and special damages in the sum of$250,000. Defendant filed a motionto dismiss plaintiffs amended complaint, for lack ofsubject matterjurisdiction, pursuantto RCFC 12(b)(l). The motion is fully briefed, and the court deems oral argument unnecessary. 

### II. LEGAL STANDARDS A. TuckerAct
The ability ofthe United States Court ofFederal Claims ("Court ofFederal Claims") to entertain suits against the United States is limited. "TheUnited 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 butmust be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969). The TuckerAct, 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. § 1491(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 orregulationthathas been violated, or an express or implied contract with the United States." Loveladies Harbor. Inc. v. United tates, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en bane).

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### 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 BetterEnv't, 523 U.S. 83, 94-95 (1998). "Withoutjurisdictionthe court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and whenit ceases to exist, the only function remaining to the court is that ofannouncing the fact and dismissing the cause." Exparte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties, or the court, sua sponte, may challenge the existence ofsubject matterjurisdiction at any time. Arbaugh v. Y&1 Corp., 546 U.S. 500, 506 (2006). When considering whether to dismiss a complaint for lack of jurisdiction, a court assumes that the allegations in the complaint are true and construes those allegations in the plaintiffs favor. Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995). A proseplaintiffs complaint, "'however inartfully 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 basicjurisdictional requirements. See Henke, 60 F.3d at 799 ("The fact that [the plaintiff] acted pro se in the drafting ofhis complaint may explain its ambiguities, but it does not excuse its failures, ifsuch there be."). In other words, a pro se plaintiffis not excused from his burden ofproving, by apreponderance ofthe evidence, that the courtpossessesjurisdiction. 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 plaintiffcannotrely solely on allegations in the complaint, but must bring 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 tates, 72 Fed. Cl. 274, 278 (2006); see also RCFC 12(h)(3) ("If

### the court determines at any time that it lacks subjectmatterjurisdiction, the court must dismiss the action."). III. DISCUSSION
In his amended complaint, plaintiffalleges that the district court violated his procedural due process rights when it dismissed his complaint, and requests that this court award him damages. The court lacksjurisdiction over plaintiffs 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 in the light most favorable to plaintiff, it cannot locate any allegations that implicate the United States. Plaintiffinstead brings suit against individuals, namely, Judge Kendall, and certain administrative assistants who presumably work for the district court and are thus federal employees. However, inthe Court of Federal Claims, "the only proper defendant

... is the United States, not its officers, nor any other individual." tephenson v. United States, 58 Fed. Cl. 186, 190 (2003); accord RCFC lO(a). Indeed, the "TuckerAct grants the Court ofFederal Claimsjurisdiction over suits against the United States, not against individual federal officials." Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997); see also Cleavinger v. Saxner, 474 U.S. 193, 199 (1985) (recognizing that

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### federaljudges are immune from suit for damages for their official actions); 

### Ealy v. United States, 120 Fed. Cl. 801, 805 (2015) ("The Court lacksjurisdiction over actions against Federal judges."). Thus, the court lacksjurisdiction to entertain claims against Judge Kendall, and to the extent that they are federal employees, the unnamed administrative assistants implicatedby plaintiff. Further, to the extent that the unnamed administrative assistants are not federal government employees, this court has nojurisdiction to entertain claims against private parties. Nat'! City Bankv. United States, 143 Ct. Cl. 154, 164 (1958) ("It is well establishedthat the jurisdiction ofthis court extends only to claims againstthe United States, and obviously a controversy between private parties could not be entertained."). Plaintiffalso alleges that the United States is liable as the employer ofthe federal officials he identifies in his amended complaint. This court lacksjurisdictionto entertain such claims ofvicarious liability. O'Connor v. United tates, No. 09-383C et al., 2009 WL 4884463, at *5 (Fed. Cl. Dec. 9, 2009) (citing Hammitt 

### v. United States, 64 Fed. Cl. 547, 548-49 (2005)). Ultimately, thejurisdiction ofthe Court ofFederal Claims "is confined to the rendition ofmoney judgments 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 the jurisdiction ofthe court." Sherwood, 312 U.S. at 584. Accordingly, because plaintiffasserts claims against parties who are not the United States, and against the United States as an employer instead ofas an entity in itself, his claims are dismissed for lack of jurisdiction. 

### B. The Court ofFederal Claims Cannot Review the Decision ofa District Court

Although the courthas concluded that plaintiffs failure to assert a claim against the United States deprives it of jurisdiction, it will briefly address plaintiffs claims as a matter of completeness. First, plaintiffstates in his amended complaint that "this action is not an attempt to use this Court as a means to engage in any form ofappellate courtproceedings to seek the reversal ofthe actions and/or inactions on the part ofthe U.S. District Judge VirginiaM. Kendall." Am. Campi. 2. "Rather," plaintiffcontends, "this action is being brought forth to redress grievances ofbeing discriminated against and deprived of [the] right to due process of law during the limited pre-trial proceedings" in the district court. Id. Although plaintiffstates that he does not seekreversal ofthe district court'sjudgment, to the extent that his allegations can be construed as an attack on the district court's dismissal ofhis amended complaint, this court lacksjurisdiction to entertain them. Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994) ("[T]he Court ofFederal Claims does not havejurisdictionto review the decisions of district courts

... relating to proceedings before those courts."). Accordingly, such claims must be dismissed. 

### C. Even ifPlaintiffAlleged Claims Against the United States, the Court Lacks Jurisdiction to Entertain Them Moreover, this court lacksjurisdiction over claims premised on the sources oflawthat

, plaintiffreferences in his amended complaint. First, plaintiffstates that his case is a "Bivens

Action." Am. Compl. 1. A "Bi

- vens" action is one based on Bivens v. ix Unknown Named Defendants, 456 F.2d 1339 (1972), a case in which the Supreme Court ofthe United States held that a violation ofone's Fourth Amendmentrights by federal officials can give rise to a federal

-4-cause ofaction for an unlawful search and seizure. Here, plaintiffdoes not supply any facts indicating that he was subjected to unlawful search and seizure. Instead, he contends that his rights were violated when his complaint was dismissed in the district court. Nonetheless, even if plaintiffhad sufficientlypled a Bivens claim, this court would lackjurisdictionto hear it. Ealy, 120 Fed. Cl. at 805; see also Brown 105 F.3d at 623. Second, plaintiffcontends that defendants violated 28 U.S.C. 

### § 1331, which states that "[t]he district courts shall have originaljurisdiction ofall civil actions arising underthe Constitution, laws, or treaties ofthe United States." 28 U.S.C. 

### § 1331 (2012). Plaintiffis mistaken. This statute is "jurisdictional," and therefore '"do[es] not create any substantive right enforceable against the United States for money damages."' Hall v. United tates, 69 Fed. Cl. 51, 57 (2005) (quoting DeVilbiss v. Small Bus. Adm.in., 661 F.2d 716, 718 (8th Cir. 1981)). Further, to the extent that plaintiffcites the statute as a basis forjurisdiction, this court "does not have federal questionjurisdictionunder 28 U.S.C. 

### § 1331," Faulkner v. United States, 43 Fed. Cl. 54, 55 (1999), because it is not a district court, Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002) (per curiam). Third, plaintiffalleges that defendants violated Article I ofthe Constitution ofthe State ofIllinois. However, the Tucker Act only provides forjurisdictionfor claims arising under the United States Constitution, not state constitutions. See 28 U.S.C

. § 1491; 

### 0 Diah v. United States, 2016 WL 1019251, No. 15-332C, at *2 (Fed. Cl. May 19, 2016) (explaining that "the Court ofFederal Claims has nojurisdictionto rule on claims arising under any state constitution") (citing Kurtv. United States, 103 Fed. Cl. 384, 388 (2012) (citing 28 U.S.C. § 1491)). Fourth, plaintiffcontends that defendants were in contravention ofthe local rules ofthe district court and the Federal Rules ofCivil Procedure. This court lacksjurisdiction over alleged violations ofthose rules. See Young v. United States, 88 Fed. Cl. 283, 288 (2009) (finding that the court lackedjurisdiction over alleged violations ofthe Federal Rules ofCivil Procedure). Fifth, plaintiffargues that defendants engaged in "intentional[], reckless[], and

... careless disregard and in gross negligence

." Am. Comp!. 2. These claims sound in tort. See Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) (holding that claims "thatdefendant 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 overtort claims. See 28 U.S.C. 

### § 1491(a) ("The United States Court ofFederal Claims shall have jurisdiction to renderjudgmentupon any claim against the United States

... in cases not sounding in tort."); Ricks Mushroom erv., lnc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008); Woodrnffv. United States, 80 Fed. Cl. 806, 816 (2008); McCauley v. United States, 38 Fed. Cl. 250, 264 (1997) ("Jurisdiction to 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). Sixth, plaintiffraises claims under several amendments to the United States Constitution over which this court lacksjurisdiction. Plaintiffinvokes the Second Amendment, which states that "[a] well regulated militia, being necessary to the security ofa free state, the right ofthe



### -5-people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. However, this court lacksjurisdiction over such claims because the Second Amendment is not moneymandating. lkins v. United States, 229 Ct. Cl. 607, 608 (1981) (per curiam) ("[E]xcept for the taking clause ofthe fifth amendment, the other amendments do notrequire the United States to pay money for their alleged violation,"); see also G sime v. United States, No. 14-506C, 2014 WL 6778581, at *6 (Fed. Cl. Nov. 26, 2014). Plaintiffalso invokes the Fourth Amendment, which provides: The right ofthe people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. Because the Fourth Amendment is not money-mandating, the court lacksjurisdiction over plaintiffs claims broughtpursuantto it. See Brown, 105 F.3d at 623; accord Dupre v. United States, 229 Ct. Cl. 706, 706 (1981) (per curiam). Plaintiffalso asserts claims arising under the Due Process Clauses ofthe Fifth and Fourteenth Amendments. The Due Process Clause ofthe Fifth Amendmentprovides, in relevant part, "nor shall any person ... be deprived oflife, liberty, or property, without due process of law." U.S. Const. amend. V. Similarly, the Due Process Clause ofthe Fourteenth Amendment states, "nor shall any state deprive any person oflife, liberty, or property, without due process of law.'' Id. at amend. XIV. However, this court lacksjurisdiction over such claims because neither clause is money-mandating. LeBlanc v. United tates, 50 F.3d 1025, 1028 (Fed. Cir. 1995) ("[T]he Due Process Clauses ofthe Fifth and Fourteenth Amendments

... [are not] a sufficient basis forjurisdictionbecause they do not mandate payment ofmoney by the government."); Mullenberg v. United States, 857 F.2d 770, 773 (Fed. Cir. 1988) (holding thatthe Due Process Clauses ofthe Fifth and Fourteenth Amendments "do not trigger Tucker Actjurisdictionin the courts"). In addition, plaintiffcites the EighthAmendment, which provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. This constitutional amendment is not money-mandating. See Ogden v. United States, 61 Fed. Cl. 44, 47 (2004); accord Trafny v. United State , 503 F.3d 1339, 1340 (Fed. Cir. 2009) (per curiam). Accordingly, the court possesses nojurisdiction overplaintifrs Eighth Amendmentclaims. 

### 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 permittedto waive filing fees and security under certain circumstances.' See 28 U.S.C.

1 While the Court ofFederal Claims is not generally considered to be a "court ofthe United States" within the meaning oftitle twenty-eight ofthe United States Code, the court has jurisdictionto grant or deny applications to proceed in forma pauperi

. 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); see aJ Matthews, 72 Fed. Cl. at 277-78 (recognizing that Congress enacted the -6-§ 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 wishingto proceed in forma pauperis must submit an affidavit that lists all oftheir assets, declares that they are unable to paythe fees or give the security, and states the nature ofthe action and their belief that they are entitled to redress. 28 U.S.C. § 1915(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 defendant's motion, 

### DISMISSES plaintiffs complaint for lack of jurisdiction, and 

### GRANTS plaintiffs application to proceed in forma pauperis. No costs. The clerk is directed to enterjudgment accordingly. 

### IT IS SO ORDERED.

Court ofFederal Claims Technical and Procedural Improvements Act of 1992, authorizing the court to, among otherthings, adjudicate applications to proceed in forma pauperis pursuantto 28 U.S.C. 

### § 1915). 

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