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# (!Court ofjf 

# eberal QCiaitns No. 17-976C (Filed July 28, 20 17) NOT FOR PUBLICATION *****•k•k*****************
KENNETH GARNER, Plaintiff, v. THE UNITED STATES, D efendant. 

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ORDER 

# FILED JUL 2 8 2017 U

.S

. COURT 

### OF FEDERAL CL.AIMS

On July 19, 2017, the co urt received a complaint submitted by Kenneth Garner, who i s a prisoner at Fairton Correctional Institution in Fairton, New J ersey, proceeding 

### prose. After carefully reviewing the co mpl aint , the Court finds t h at Mr
. Garner plainly failed to state a claim within this court's subject-matter juri sdictio n . This court only has jurisdiction under the Tucker Act over cases based on the alleged existence of a co ntract with the federal governme nt or on an alleged violation by t h e 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 co ntract in order to establish juri sdiction 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 a llegedly 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 base d on a l aw 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 pl aintiff 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 F ed. Cl. 62, 66 (2013).


### 7017 1450 ODDO 1346 3059Subject-matter jurisdiction can be challenge d 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 l acks subject

-matter jurisdiction, the court must dismi ss the action." When a court undertakes this determination , "the allegations stated in the complaint a re taken as true and jurisdiction is deci ded on the face of the pleadings." 

### Folden, 379 F.3d at 135 4. Mister Garner's complaint appears to be that the prison negligently placed a dan gerous inmate into a solitary confinement cell with Mr. Garner, without searching the other inmate , and that inmate injure d Mr
. Garner . Compl. 

## iii! 3-4. Pl aintiff has not identified a money mandating statute or a contract that would place his claim within our jurisdiction. His claims of n egligence and intentional infliction of emotional distress appear to fall under the Federal Tort Claims Act. 

### See 28 U.S.C. 

### §§ 2671-75. Because n egligen ce cl ai ms and claims for intentional infliction of emotional distress are claims sounding in tort, our Court does not hav e jurisdiction to h ear 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 n egligence is a tort claim over which the Court of F e deral Claims does not hav e jurisdiction); 

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

### Prosser and Ke eton 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 so und[s] in tort" over which the Court of F ederal Claims l acks 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 rea sons, plaintiff's complaint is 

### DISMISSED as b eyond our court's jurisdiction pursuant to RCFC 12(h)(3). As no filing fee h as been paid, the Court does not find it appropriate to transfer the case to the district court. But given plai ntiff'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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