INA 

3Jn tbe mtniteb ~tates (!Court of jf eberal QCiaitns 

No. 17-976C 

(Filed July 28, 2017) 

NOT FOR PUBLICATION 

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KENNETH GARNER, 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant. 

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ORDER 

FILED 

JUL 2 8 2017 

U.S. COURT OF 

FEDERAL CL.AIMS 

On July 19, 2017, the court received a complaint submitted by Kenneth 

Garner, who is a prisoner at Fairton Correctional Institution in Fairton, New 

J ersey, proceeding prose. After carefully reviewing the complaint, the Court finds 

th at Mr. Garner plainly failed to state a claim within this court's subject-matter 

jurisdiction . This court only has jurisdiction under the Tucker Act over cases based 

on the alleged existence of a contract with the federal government or on an alleged 

violation by t he federal government of a law or constitutional provision mandating 

the payment of money. 28 U.S.C. § 1491(a)(l); see also Total Med. Mgmt., Inc. v. 

United States, 104 F.3d 1314, 1319 (Fed. Cir. 1997) (holding that a plaintiff must 

plead the elements of a valid contract in order to establish jurisdiction based on a 

contract with the United States); United States v. Testan, 424 U.S. 392, 398 (1976) 

(noting that the Tucker Act confers jurisdiction only where the federal statute 

allegedly violated confers "a substantive right to recover money damages from the 

United States"); Contreras v. United States, 64 Fed. Cl. 583, 588 (2005) (holding 

that this court's jurisd~ction "must be based on a law or regulation that either 

entitles the plaintiff to a payment of money from the government, or places a duty 

upon the government, the breach of which gives the plaintiff a money damages 

remedy"). The Tucker Act expressly limits our jurisdiction to "cases not sounding in 

tort." 28 U.S.C. § 1491(a)(l); see also Sellers v. United States, 110 Fed. Cl. 62, 66 

(2013). 

7017 1450 ODDO 1346 3059 
Subject-matter jurisdiction can be challenged by the parties at any time, or 

by the court sua sponte. Folden u. United States, 379 F.3d 1344, 1354 (Fed. Cir. 

2004). Pursuant to Rule 12(h)(3) of the Rules of the United States Court of Federal 

Claims (RCFC), "[i]f the court determines at any time that it lacks subject-matter 

jurisdiction, the court must dismiss the action." When a court undertakes this 

determination, "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. 

Mister Garner's complaint appears to be that the prison negligently placed a 

dangerous inmate into a solitary confinement cell with Mr. Garner, without 

searching the other inmate, and that inmate injured Mr. Garner. Compl. iii! 3-4. 

Plaintiff has not identified a money mandating statute or a contract that would 

place his claim within our jurisdiction. His claims of negligence and intentional 

infliction of emotional distress appear to fall under the Federal Tort Claims Act. 

See 28 U.S.C. §§ 2671-75. Because negligence claims and claims for intentional 

infliction of emotional distress are claims sounding in tort, our Court does not have 

jurisdiction to hear such claims. See O'Connor u. United States, 355 Fed. Appx. 412, 

413 (Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(l); Rich's Mushroom Serus., Inc. u. 

United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)) (holding that negligence is a 

tort claim over which the Court of Federal Claims does not have jurisdiction); 

McKenzie u. United States, 524 Fed. Appx. 636, 638 (Fed. Cir. 2013) (citing Prosser 

and Keeton on the Law of Torts§ 131 (W. Page Keeton gen. ed., 5th ed. 1984)) 

("intentional infliction of emotional distress [is a] textbook exampleO of [a] causeO of 

action that sound[s] in tort" over which the Court of Federal Claims lacks 

jurisdiction). Thus, jurisdiction would lie in the United States District Court of New 

Jersey, not in this Court. See 28 U.S.C. § 1346(b)(l); McKenzie u. United States, 524 

Fed. Appx. at 638 (citing United States u. Muniz, 374 U.S. 150, 164-65 (1963)). 

For the foregoing reasons, plaintiff's complaint is DISMISSED as beyond 

our court's jurisdiction pursuant to RCFC 12(h)(3). As no filing fee has been paid, 

the Court does not find it appropriate to transfer the case to the district court. But 

given plaintiff's confusion over our jurisdiction, his prose status, and the minimal 

resources involved in reviewing the complaint, Mr. Garner is relieved of the 

obligation to pay the filing fee. The Clerk shall close the case. 

IT IS SO ORDERED. 

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