FREEMAN v. USA

Filing 10

UNPUBLISHED OPINION and ORDER granting 4 Motion to Dismiss - Rule 12(b)(1) and (6); and permitting plaintiff to proceed in forma pauperis for purposes of the motion. The Clerk is directed to enter judgment. Signed by Judge Edward J. Damich. (dls) Copy to parties.

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No. 13-327 C
(Filed: September 19, 2013)
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FILED

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19

2013

NEAPOLEONJWANFREEMAN,SR. *

rHiL33l3h?fis
Plaintiff,
v.

THE UNITED STATES,

Defendant.

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Neapoleon Jwan Freeman, Sr., Coffeewood Correctional Center, Mitchells, VA, Plaintiff, pro se.
Nathanael B. Yale, Commercial Litigation Branch, Civil Division, United States Department
Justice, Washington, D.C., for Defendant.

of

OPINION AND ORDER

DAMICH,

Judge:

Plaintiff filed this complaint on May 8, 2013. He is apparently confined at Coffeewood
Correctional Center, in Mitchells, Virginia. As the Govemment notes, Plaintiff seems to be
alleging various grievances relating to his conviction and imprisonment on drug charges.
Although his complaint is largely incomprehensible, at best Mr. Freeman appears to be asserting
claims of unjust conviction and false imprisonment. Mr. Freeman further states in his complaint,
"Need Legal repersentation [sic] In Forma pauperis, Speedy Trial there, No TV trial will be
consented to! Extradite." Compl. at 1.' Defendant filed a motion to dismiss for lack of
jurisdiction.
For the reasons stated below, the Court grants Defendant's motion to dismiss Mr.
Freeman's comolaint.

I

Plaintiffs submission in opposition to the Government's motion to dismiss was formally titled, "Plaintiffs
Motion to Proceed In Forma Pauperis" ("lFP"), although Plaintifffailed to submit the formal application to proceed
in such capacity (which, ifapproved by the Court, would authorize him to forgo paying the complaint filing fee).
For purposes ofthe instant motion only, the Court allows Plaintiffto proceed in forma pauperis. IfPlaintifffiles any
further motions in this action, the Court will insist on his first following proper IFP application procedures.

I.

Legal Standards

Whether a court has jurisdiction over the subject matter in a party's complaint is "a
threshold question that must be resolved . . . before proceeding to the merits" of a claim. Steel
Co. v. Citizens for a Better Env't,523 U.S. 83, 88-89 (1998). When jurisdiction is challenged,
the inquiry thus goes not to whether a plaintiff will ultimately prevail, but whether this court has
jurisdiction to hear the matter in the first instance. See Patton v. United States,64 Fed. Cl. 768,
773 (2005) (citing Scheuer v. Rhodes,4l6 U.S. 232,236 (1974)).

In weighing a motion to dismiss for lack of subject-matter judsdiction, the court is
"obligated to assume all factual allegations to be true and to draw all reasonable inferences in
[the] plaintiffs favor." Henke v. United States,60 F.3d 795, 797 (Fed. Cir. 1995). Nevertheless,
when this court's jurisdiction is challenged, it is the plaintiffs bwden to demonstrate jurisdiction
by a preponderance ofthe evidence. McNutt v. Gen. Motors Acceptance Corp.,298 U.S. 178,
189 (1936); Reynolds v. Army & Air Force Exch. Serv.,846F.2d746,748 (Fed. Cir. 1988).
The subject matter jurisdiction ofthe United States Court ofFederal Claims is established
by the Tucker Act, 28 U.S.C. $ 1491, which provides, in relevant part:

The United States Court of Federal Claims shall have jurisdiction
to render judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon any express or
implied conhact with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort.
28 U.S.C. $ 1491(a)(1).
The Tucker Act itself, however, "does not create substantive rights. Rather, it is a
jurisdictional provision'that operate[s] to waive sovereign immunity for claims premised on
other sources of law (e.g., statutes or contracts)."' Holmes v. United States,657 F.3d 1303, 1309
(Fed. Cir. 201l) (quoting United States v. Navajo Nation,556 U.S. 287,290 (2009)).

The Federal Circuit has explained that the substantive right must stem from another
source of law, such as a "money-mandating constitutional provision, statute or regulation that
has been violated, or an express or implied contract with the United States." Loveladies
Harbour, Inc. v. United States,21 F .3d, 1545, 1554 (Fed. Cir. 1994). The "other source of law,"
however, "need not explicitly provide that the right or duty it creates is enforceable through a suit
for damages, but it tdggers liability only if it 'can fairly be interpreted as mandating
compensation by the Federal Govemment."' Holmes,657 F.3d at 1309 (quoting Navajo Nation,
556 U.S. at 290).
When a party is acting pro se, courts generally accord the party greater leeway than if he
or she had professional representation. See, e.g., Haines v. Kerner,404 U.S. 519, 520-21 (19'72)
(requiring that allegations contained in a pro se complaint be held to "less stringent standards
than formal pleadings drafted by lawyers"); Forshey v. Principi,284 F.3d 1335,1357 (Fed. Cir.
z

2002). Nevertheless, "the leniency afforded lo a pro se litigant with respect to mere formalities
does not relieve the burden to meet jurisdictional requirements." Minehan v. United States,75
Fed. Cl. 249, 253 (2007) (citingKelleyv. Sec'y, U.S, Dep't ofLabor,8I2F.2d 1378, 1380 (Fed.
Cir. 1987)).

II.

Discussion

As an initial matter, Defendant argues that Mr. Freeman "fails to assert a moneymandating statute associated with these claims anywhere in his complaint as required by the
Tucker Act." Defendant further argues that, to the extent the Court were to construe Mr.
Freeman's complaints as money-mandating under 28 U.S.C. $ 1495, which provides jurisdiction
to this Court to render j udgment on a claim for damages by any person unjustly convicted ofan
offense against the United States and imprisoned, Plaintiff s claims are still insufficient. This is
because, pursuant to 28 U.S.C. $ 2513, a claimant pursuing compensation under $ 1495 must
"allege and prove that . . . [h]is conviction has been reversed or set aside" by presenting a
certificate of innocence from the court that ordered the reversal or pardon. 28 U.S.C. $ 2513.
Other evidence of innocence "shall not be received." { 2513(b).

This Court does not have independent authority to overturn a conviction or weigh the
facts orjudgment involved in the conviction or imprisonment. Salman v. United States,69 Fed.
Cl. 36,39 (2005); Humphrey v. United States, 52 Fed. Cl. 593, 596 (2002); Lott v. United Stqtes,
1 1 Cl. Ct. 852, 853 ( I 987). Furthermore, this Court agrees with the analysis in Ll/ood v. United
States,9l Fed. Cl. 569, 577 (2009) "that compliance with $ 2513, including submission ofa
certificate of innocence from [a federal court] is a prerequisite to the jurisdiction of the Court of
Federal Claims." Mr. Freeman, however, has only submitted what appears to be his own
handwritten, self-asserting "Certificate of Innocence" as attached to his opposition to
Defendant's Motion to Dismiss. Plaintiff s Opp. at 3. By the plain language of the statute, Mr.
Freeman's proffer does not suffice. See $ 2513(b) (noting that proof"shall be by a certificate of

thecourt...").
In addition, as Defendant notes, the relief afforded under $ 1495 relates to a claim for
damages by a person unjustly convicted ofan offense against the United States and imprisoned."
28 U.S.C. $ 1495 (emphasis added). Mr. Freeman's incarceration in a Virginia state prison
suggests that that $ 1495 is inapplicable here.
To the extent that Plaintiff is asserting tort claims ofany sort against the United States,
such as, for example, his references to neglect or kidnapping, see Compl. at l, it is well
established that this Court lacks iurisdiction over such claims. Shearinv. United States,992 F.2d
1195, 1197 (Fed. Cir. 1993).

Finally, to the extent that Mr. Freeman is actually asserting a right to counsel, although it
is not clearly evident in his complaint, his claim is equally unavailing. The Federal Circuit has
observed that, [i]n civil proceedings, however, the right to counsel is highly circumscribed."
Lariscey v. United States,861 F.2d 1267,1270 (Fed. Cir. 1988). Citing the decision ofthe
Supreme Court in Zassllar v. Departmenl ofSocial Servs.,452 U.S. 18 (1981), the Federal

Circuit in Lariscey nored that "a right to appointed counsel exists only when the indigent may
lose his/her personal freedom if the action is lost." Lariscey, 36l F.2d at 1270. As noted above,
this Court's jurisdiction does not extend to overturning his conviction or proclaiming upon the
propriety ofhis imprisonment, but rather only to the issue ofdamages upon his presentation of
the requisite certificate of innocence. In any event, this Court's consideration of a damages
claim would not trigger a loss of Mr. Freeman's personal freedom for lack of appointed counsel.
He therefore is not entitled to court-appointed counsel in this matter.

II1.

Conclusion

Because the Court lacks jurisdiction over Plaintiff s claims, Defendant's motion to
dismiss is hereby granted. The Clerk of Cou( is directed to enter judgment accordingly.

Judge