GSSIME v. USA

Filing 11

UNREPORTED OPINION granting 7 Motion to Dismiss - Rule 12(b)(1); granting 3 Motion for Leave to Proceed in forma pauperis; and denying 6 Motion to Appoint Counsel. The Clerk is directed to enter judgment. Signed by Chief Judge Patricia E. Campbell-Smith. (dls) Copy to parties.

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No. l4-506C
(Filed: November 26, 2014)

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6

2014

U.S, COURT OF
FEDERAI-CLAIM9

SAID GSSIME,
NOT FOR PUBLICATION

Plaintiff,

THE TJNITED STATES,
Defendant.

Said Gssime, New York, NY, pro se.

Jeffrey A. Regner, Senior Trial Counsel, with whom were Stuart F. Delery, Assistant
Attomey General, Robert E. Kirschman. Jr., Director, and Steven J. Gillineham,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge
Pending before the court is defendant's motion to dismiss the pro se complaint in
the above-captioned case for lack ofjurisdiction pusuant to Rule l2(b)(1) of the Rules of
the Court of Federal Claims ("RCFC"). Def.'s Mot. to Dismiss (Def.'s Mot.), Dkt. No. 7.
Plaintiff filed his complaint in this court on June 12,2014, alleging numerous tortious,
criminal, and constitutional claims against the United States and various state and local
officials and employees in connection with his criminal prosecution for arson. Compl.,
Dkt. No. l; Pl.'s Mem. of Law, Dkt. No. 2.r Plaintiff claims he is entitled to monetaxy
damages under several amendments to the United States Constitution, the Civil Rights
Act of 1964, and the Geneva Conventions. Compl. 'll 1 1-12.

I

Plaintiff s filings in this case are not paginated. When citing to plaintiffls filings,
the court cites either the numbering system assigned to each paragraph by plaintiff, when
available, or the pagination assigned by the court's electronic filing system.

As explained funher below, the court finds that it does not have jurisdiction over
plaintiff s claims. The court also finds that the interests ofjustice do not counsel in favor
of transferring this case. Accordingly, defendant's motion to dismiss is GRANTED, and
plaintiff s complaint is DISMISSED in its entirety.

I.

Background

The United States is captioned as the named defendant in plaintiff s complaint.
But plaintiff s claims are leveled in fact against the state judge and state prosecutors
involved in his criminal prosecution.' Plaintiff alleges that these state officials conspired
to unlawfully convict, torture and imprison him in connection with an act of arson.
Asserting that he was a "victim of [c]onspiracy, . . . atrocity and [a] judicial hate crime,"
Compl. tl 7, plaintiff complains that the state judge and state prosecutors "decided to
burry [sic] [him] alive without proving his guilt or insanity and without legal
representation," id. t'| 8. Plaintiff further contends that this court can hear these claims
"because th[e]se officials who performed [the] [j]udicial [d]ut[ies] were hired by the
United States Department of Justice." Id. tf l.

Plaintiffs grievances extend to the Legal Aid Society counsel appointed to assist
him in the state court criminal proceeding. He alleges that the two appointed attomeys
did not consult with him prior to, or represent him during, the preliminary hearing and
other legal proceedings. Id.'!l 5. Plaintiff contends that on May 6, 1998, he "was brought
to court and . . . [c]onvicted without [a] legal defense." Id. t'| 10. Plaintiff also asserts he
was wrongfully imprisoned for seventeen years for a crime he did not commit. Id. fl I l.

Plaintiffs complaint also includes allegations oftortious

acts by local police
officers at the Nassau County Conectional Center and by court-appointed doctors.
Plaintiff claims he was "tortured to speak" following his arrest, in connection with a
deliberately set garage fire. Id. fltf 2-3. Plaintiffadds that he was sent to the Nassau
County Correctional Center and "beaten badly[,] . . . suffering a dozen of fractures to his
skeleton, . . . and [the loss ofl all of his upper teeth." Id. !f 4. Plaintiff asserts that he
suffered additional injuries when, at the request of the state judge and state prosecutors,
he was "forced, . . . and manipulated to undergo" competency examinations by two
appointed doctors in August and September of 1997. Id.'lf 9.

'

Compl. at I (introduction), June 12,2014, Dkt. No. I ("Plaintiff made
this Complaint [i]n the United States Court of Claims against the United States fi]udges
and [p]rosecutors who were acting under [c]olor of [s]tate law when they intentionally
committed [c]riminal acts, . . . and deliberately ruled against the United States
See. e.g.,

Constitution....").

Plaintiff claims that various constitutional violations have occurred. See id. fl l l
(specifically asserting violations of the First, Second, Fourth, Fifth, Sixth, Eighth and the
Fourteenth Amendments). Plaintiff adds that he was denied counsel and received
ineffective assistance from his appointed counsel, in violation of the Sixth Amendment'
Id. 1T'!l 5-8, l0-12. Plaintiff specifically complains of cruel and unusual punishment, in
violation of the Eighth Amendment. Id. lT 12.
The court also discems from the complaint that plaintiff is asserting claims under
the due process and equal protection clauses of the Fifth and Fourteenth Amendments.
See i{fl l0 (alleging "loss oflife, liberty, and property without rights or due process of
law"). The court cannot discem from the complaint, however, the basis for plaintiff s
allegations that he suffered violations ofthe First, Second, and Fourth Amendments.

Plaintiffs grievances extend beyond his tortious and constitutional claims to
include charges of torture in violation ofthe Geneva Conventions, as well as racial
discrimination in violation of the Civil Rights Act of 1964. Id. fl 12. Plaintiff alleges that
he was a "victim of fi]udicial hate crime" because of his "race, name and national
origin," id. fl 10, and appears to assert Section 1983 claims against the state judge and
state prosecutors "who were acting under [c]olor of [s]tate law," id. at

I (introduction).

For "these form[s] [ofj cruelty, tortures and [j]udicial [h]ate [c]rime," and "for the
loss of life and liberty and l7 years of injust [sic] conviction," plaintiff demands
compensation in the amount of $85 million. Id. f 13. Together with his complaint,
plaintiff filed an application to proceed in forma pauperis, Applic. to Proceed In Forma
Pauperis, June 12, 2014,Dkt. No. 3, and requested the appointment of counsel, Pl.'s Mot.
to Appoint Counsel, July 25, 2014, Dkt. No. 6.
Defendant filed a motion to dismiss plaintiffs claim for lack ofjurisdiction on
August 12, 2014. Def.'s Mot. Thereafter, plaintiff filed his opposition to defendant's
motion on September 2,2014, Pl.'s Resp., Dkt. No. 9, and defendant filed its reply on
September 15,2014, Def.'s Reply, Dkt. 10. The matter is now ripe for review.

II.

Plaintiff s Application to Proceed In Forma Pauperis and Motion to Appoint
Counsel

As a preliminary matter, plaintiff s request to proceed in forma pauperis is
GRANTED for the limited purpose of addressing whether this court has jurisdiction over
this case. The Clerk will file the comolaint with no filine fee.

The court next addresses plaintiffs motion to appoint counsel.' Plaintiff
represents that he is unable to litigate this claim himself because ofa permanent
disability. Pl.'s Mot. to Appoint Counsel at Plaintiff adds that in spite of diligent
efforts, he has not found counsel to represent him. Id. at 1-2.

l.

The constitutional right to appointed counsel is limited, in general, to criminal
cases. Taylorv.MeritSys.Prot.Bd.,S2TF.App'x970,972(Fed.Ch.2013). Inacivil
case such as this, the right to counsel attaches "only when an indigent party's liberty is
potentially threatened." Id. (citing Pitts v. Shinseki, 700 F.3d 1279, 1283 (Fed. Cir.
2012)). The Federal Circuit has instructed that "the right to counsel [in civil proceedings]
is highly circumscribed, and has been authorized in exceedingly restricted
circumstances." Lariscevv.UnitedStates,36lF.2d126T,l2T0(Fed.Cir. 1988).

Plaintiff brings the instant suit for money damages with respect to events that
occurred in relation to his criminal proceedings over fifteen years ago. The court detects
no potential threat to plaintiff s liberty in connection with this action here. Because there
is no authority for the appointment ofcounsel under these circumstances, plaintiffs
motion requesting the appointment of counsel is DENIED.

III.

Defendant's Motion to Dismiss

A.

Legal Standards

The jurisdiction of the United States Court of Federal Claims is a threshold matter.
See PODS. Inc. v. Porta Stor. Inc., 484 F.3d 1359,1365 (Fed. Cir. 2007) (citing Steel Co.
v. Citizens for a Better Env't, 523 U.S. 83,94-95 (1998). A filed claim must be
dismissed if the court does not have jurisdiction to hear it. See Arbaueh v. Y&H Corp.,
546 U.S. 500, 514 (2006).

It is well settled that the jurisdiction of this court extends only to claims against
the United States. 28 U.S.C. $ 1a91(a)(1) (2012) (providing that the Court of Federal
Claims has jurisdiction "to render judgment upon any claim against the United States").
Because the "qq!y proper defendant for any matter before this court is the United States,
not its officers, nor any other individual," Stephenson v. United States, 58 Fed. Cl. 186,
190 (2003) (emphasis in original) (citing United States v. Sherwood, 312 U.S. 584, 588

'

In addition to his response, Pl.'s Resp., Dkt. No. 9, plaintiff made a separate filing
also on September 2,2014, entitled Reply Affirmation to Motion to Dismiss, Dkt. No. 8.
Notwithstanding its title, the filing concerns plaintiffls request for the appointment of
counsel, rather than a position taken regarding defendant's motion to dismiss. Id. t]U 3-5.
Plaintiff specifically requests that the court determine his eligibility for the appointment
of counsel prior to deciding defendant's motion to dismiss. Id. tT 4.

(1941)), this court does not have jurisdiction to entertain claims against states, localities,
state and local government officials, state courts, state prisons, or state employees,
Trevino v. United States , 557 F . App'x 995, 998 (Fed. Cir. 2014).
The ability of this court to entertain suits against the United States is both
established and limited by the Tucker Act. See 28 U.S.C. $ l49l . While the Tucker Act
provides jurisdiction over "any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation ofan executive department, or
upon any express or implied contract with the United States, or for liquidated or
unliquidated damages in cases not sounding in tort," 28 U.S.C. $ 1491(a)(l), the Act
itself does not create a substantive right to monetary relief from this court, United States

v.Testan,424U.5.392,398(1976). Rather,"[a]substantiverightmustbefoundin
some other source of law." United States v. Mitchell,463 U.S. 206,216 (1983). Thus, to
invoke the court's jurisdiction over a claim, a plaintiff must "identiff a substantive right
for money damages against the United States separate from the Tucker Act itself," Todd
v. United States, 386 F.3d 1091, 1094 (Fed. Cir. 2004), such as "some money-mandating
constitutional provision, statute or regulation 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 banc). See also Jan's Helicooter Serv.. Inc. v. Fed.
Aviation Admin., 525 F.3d 1299,1307 (Fed. Cir. 2008) (noting that under the Tucker
Act, a "money-mandating" claim "exists if the statute, regulation, or constitutional
provision that is the basis for the complaint 'can fairly be interpreted as mandating
compensation by the Federal Government"' (quoting Mitchell, 463 U.S. at 216-17));
Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997) ("Courts have consistently
held that the jurisdiction of the Court of Federal Claims is limited to cases in which the
Constitution or a federal statute requires the payment of money damages as compensation
for their violation.").
This court's jurisdiction is further limited by a six-year statute of limitations. 28
U.S.C. $ 2501 (2012). "Every claim of which the United States Court of Federal Claims
has jurisdiction shall be barred unless the petition thereon is filed within six years after
such claim first accrues." Id. The court's statute of limitations is jurisdictional and
cannot be equitably tolled. John R. Sand & Gravel Co. v. United States, 552 U.S. 130,
134 (2008).
When considering a motion to dismiss for lack of jurisdiction, the court must take
"the allegations stated in the complaint. . . as true and jurisdiction is decided on the face
of the pleadings." Folden v. United States, 379 F.3d 1344, t354 (Fed. Cir. 2004)
(quoting Shearin v. United States,992F.2d 1195, I195-96 (Fed. Cir. 1993)). Plaintiff
bears the burden of establishing jurisdiction by preponderant evidence. Tavlor v. United
States, 303 F.3d 1357, 1359 (Fed. Cir.2002) (citing Thomson v. Gaskill ,315 U.S.442,
446 (1942)). While complaints filed by pro se plaintiffs are held to "less stringent
standards than formal pleadings drafted by lawyers," Haines v. Kemer,404 U.S. 5I9,520

(1972), pro se plaintiffs nonetheless must meet the jurisdictional requirements, Bernard v.
United States, 59 Fed. Cl. 49'1, 499 (2004), affd, 98 F. App'x 860 (2004).

B.

Evaluating the Court's Jurisdiction Over Plaintiff s Claims

The court now considers whether it has jurisdiction to entertain plaintiff s claims.
In its motion to dismiss plaintiff s complaint, defendant asserts that plaintiff "offers no
allegations upon which this [cjourt could base jurisdiction. The complaint does not
allege any wrongdoing by the United States." Def.'s Mot. at 2-3. Defendant contends
that "[b]ecause all of Mr. Gssime's claims arise out of actions by private individuals and
state employees for which the United States is not responsible, this [c]ourt lacks
jurisdiction to entertain them." Id. at 5. Defendant adds that this court does not have
jurisdiction over plaintiff s constitutional, international law, or Civil Rights Act claims.
Id. at 3-4. Finally, defendant argues that "to the extent that Mr. Gssime could articulate a
cause of action over which this [c]ourt might exercise jurisdiction, such claims would be
barred by the statute of limitations." Id. at 5.

Citing various legal authorities,a plaintiff responds that this court can hear the
claims he has asserted because the_court "possess[es] jurisdiction to enterjudgment
against state[] and federal courts."' Pl.'s Resp. at 9. Plaintiff asserts that the court can
consider "State and Federal officials['] deliberate violations of their own [s]tatutes that
affect[] citizens['] rights." Id. at3. Moreover, plaintiff argues that the statute of
limitations does not apply to his claims because the alleged "[i]nfliction of cruelty . . .

*

In support of his position, plaintiff cites to 28 U.S.C. g 1492, Article I of the
United States Constitution, and an excerpt entitled "Civil Rights and Legal Protection
9.2." Pl.'s Resp. at 8. None ofthese sources furnish a basis forjurisdiction in this court.
The cited statutory authority pertains to the court's jurisdiction over congressional
reference cases, and Article I of the Constitution is the authority under which Congress
established the Court of Federal Claims. See 28 U.S.C. g 171(a) (2012) ("The [United
States Court ofFederal Claimsl is declared to be a court established under article I ofthe
Constitution of the United States.").

t

In particular, plaintiff asserts that this court "is a . . . [h]igher [c]ourt of the United
States that hears complaints [c]onceming. . . my civil rights matter[,]. . . [c]laims of
ff]udicial hate crime, violations of the 1't, 2nd,4k,56,6*, 8tn[,] and l4s Amendment[s] of
the United States Constitution." Pl.'s Reso. at 9.

resulted in permanent injuries [that] [c]ontinue to cause [the] same physical, mental and
psychological . . . pain and suffering."" Id. at 10.

In its reply, defendant asserts that plaintiff s response to the motion to dismiss
shows "that his claims arise out ofalleged violations ofhis constitutional rights in
connection with his trial in New York state court and subsequent incarceration." Def.'s
Reply at l. Defendant maintains that plaintiff has failed to meet his burden of
establishing jurisdiction in this court. Id.

1.

Plaintiff s Claims Against Defendants Other than the United States

Plaintiff s complaint makes clear that his claims arise out of the alleged actions of
state and local officials and employees involved in plaintiff s criminal proceedings in
New York state court. This court may only hear claims properly brought against the
United States. 28 U.S.C. $ la91(a)(1). Accordingly, this court has no jurisdiction to hear
the claims against the state judge, state prosecutors, court-appointed counsel, local police
officers, and state doctors identified in plaintiffs complaint. Trevino, 557 F. App'x at
998 (finding that this court lacks jurisdiction over claims against state and local
govemment officials, state courts, state prisons, or state employees). Further, the state
judge and state prosecutors involved in his criminal proceedings were not, as plaintiff
contends, "hired by the United States Department of Justice," see Compl. !l 1, such that
they would quali$ as federal actors. See Sneed v. United States, No. 14-194C, 2014 WL
2772898, at *3 (Fed. Cl. June 13,2014) (rejecting plaintiffs contention that the state
judges and prosecutors involved in his criminal prosecution were "agents" of the United
States).

And, contrary to plaintiff s contention that this court has the power to enter
judgment against state courts, see Pl.'s Resp. at 9, it does not. The court lacks
'Jurisdiction to review the decisions of [the] state court ft]udge . . . who presided over
plaintiffs criminal case or related allegations ofineffective counsel during the
prosecution of plaintiff s criminal case." Hernandez v. United States, 96 Fed. Cl. 195,
203 (2010\.

o

Plaintiffalso attached, as exhibits to his response, various medical records. See
Dkt. No. 9-1. It appears that plaintiff filed these medical documents to support his claim
ofpermanent and continuing injuries. See Pl.'s Resp. at 10. These medical records,
however, are not necessary to the court's consideration of defendant's motion to dismiss
for lack ofjurisdiction at issue here. Due to the confidential and personal nature ofthese
records, the Clerk's Offrce-at the court's request-has sealed them to prevent public
access.

2.

Plaintiff s Claims Alleging Tortious or Criminal Conduct

Even if plaintiff were to allege that the federal govemment was responsible for the
conduct described in his complaint, the court would still lack jurisdiction to entertain
such claims. Plaintiff complains ofvarious personal injuries allegedly suffered during his
interactions with local police and state doctors. Compl. fllf 34,7,9-ll. Plaintiff also
asserts that the state judge and state prosecutors "intentionally committed Ic]riminal
acts," id. at I (introduction), particularly "[c]onspiracy, tortures, atrocity and judicial hate
crime," id. fl 7. These claims sound in tort.
The Tucker Act prevents the court from hearing tort claims. 28 U.S.C. $
la9l(a)(l) (explicitly excluding tort claims from this court's jurisdiction); see also Keene
Corp. v. United States, 508 U.S. 200,214 (1993); New Am. Shipbuilders. Inc. v. United
States, 87 1 F .2d 1077 , 1079 (Fed. Cir. 1989) ("If the government misconduct alleged was
tortious, jurisdiction is not granted the Claims Court under the Tucker Act. . . ."). Thus,
plaintiffs claims ofpersonal injury and torture fall outside of this court's jurisdiction, as
do the conspiracy claims, which similarly sound in tort. Cottrell v. United States,42Fed.
cl. r44, r49 (1998).

judge and state prosecutors committed a'Judicial
hate crime" is also suggestive of some type of tortious and criminal conduct. Such claims
do not fall within the court's jurisdictional ambit. See Joshua v. United States, 17 F.3d
378,379-80 (Fed.Cir. 1994). SeealsoFlowersv.UnitedStates,80Fed. C|.201,213,
afld,321 F. App'x 928 (Fed. Cir. 2008) ("The court lacksjurisdiction 'over claims that
defendant engaged in negligent, fraudulent, or other wrongful conduct when discharging
its official duties . . . . Even where the claim is framed under non-tort law. the court lacks
jurisdiction if the essence of the claim lies in tort."' (quoting Cottrell,42Fed. Cl. at
149).

Plaintiff

s assertion that the state

Likewise, this court lacks jurisdiction over the claims asserted under the Civil
Rights Act of 1964, as those claims may be heard only in federal district courts.
Jefferson v. United States, 104 Fed. Cl. 81, 89 (2012) ("[T]he court does not have subject
matter jurisdiction over actions arising under sections of the Civil Rights Acts, including
42 U.S.C. $ 1983 . . .."); Blassingamev. United States,33 Fed. Cl.504,505 (1995)
("Section 1983 is not a jurisdiction-granting statute. District courts are given jurisdiction
to hear claims for damages for violation of that provision . . . .").
In addition, the court has no power to address plaintiff s claim oftorture, in
violation of the Geneva Conventions. Under 28 U.S.C. $ 1502 (2012), this court "shall
not have jurisdiction of any claim against the United States growing out of or dependent
upon any treaty entered into with foreign nations." The Geneva Conventions are
comprised of international treaties and protocols to which the United States has agreed to
adhere. Accordingly, claims such as plaintifls that are based on these Conventions

cannot be considered by the court. See Hardin v. United States, No. l4-557C, 2014 WL
4724472, at *4 (Fed. Cl. Sept. 23, 2014) (noting that the Geneva Conventions consist of
the types oftreaties entered into with foreign nations over which the court does not have

jurisdiction).

3.

Plaintiff s Constitutional Claims

Plaintiff alleges that criminal and tortious conduct occurred in connection with his
criminal conviction that effected various constitutional violations. See Compl. !f 11
(specifically asserting violations ofthe First, Second, Fourth, Fifth, Sixth, Eighth and the
Fourteenth Amendments).
But the authority that is binding on this court makes clear that money damages are
not available for violations-as plaintiff claims-of the First, Fourth, Sixth, Eighth, or
Fourteenth Amendments. Thus, this court does not have jurisdiction over such claims.
See. e.g., Trafny v. United States, 503 F.3d 1339, 1340 (Fed. Cir. 2007) (ruling that the
Eighth Amendment is not a money-mandating provision); LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed. Cir. 1995) (explaining that the due process and equal protection
clauses of the Fifth and Fourteenth Amendments are not a sufficient basis forjurisdiction
because they do not mandate payment of money by the government); United States v.
Connollv, 716 F .2d 882, 887 (Fed. Cir. 1983) (stating that the First Amendment does not
obligate the federal govemment to pay money damages); Dupre v. United States,229 Ct.
Cl. 706, 706 ( 198 1) (providing that the Fourth and Sixth Amendments do not obligate
money damages). Moreover, as to plaintiff s claim of a violation of the Second
Amendment, the court is aware of no authority frnding that amendment to be moneymandating; nor is the court able_to discem any such violation here based on the facts
alleged in plaintiff s complaint. /

'

The court is unabl€ to discem any violation ofplaintiffs right to bear arms based
on the facts alleged in plaintiff s complaint. See U.S. Const. amend. II (providing that
"[a] well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed"). But even if the court could
identifu such a violation here, the court is bound by the Federal Circuit's implicit
guidance in the Robinson case, recognizing that the Second Amendment is not a moneymandating provision. See Robinson v. United States, 230 F.3d 1382, 1382 (Fed. Cir.
2000) (unpublished table decision) ("[E]xcept for the taking clause of the fifth
amendment, the other amendments do not require the United States to pay money for
their alleged violation." (quoting Elkins v. United States,229 Ct. Cl. 607,608 (1981))).
Thus, the court has no jurisdiction to hear such claims.

The court does have jurisdiction over takings claims founded in the Fifth
Amendment, see. e.g., Mildenberger v. United States, 643 F.3d 938,94445 (Fed. Cir.
2011) (explaining that the Fifth Amendment ensures that the government does not
appropriate private property for public use without just compensation), but plaintiffhas
not alleged any facts that could be construed as supporting such a claim.
Because the constitutional violations that plaintiffhas alleged are rooted in
amendments to the Constitution that do not contain money-mandating provisions, the
court has no jurisdiction to hear such claims.

4.

Plaintiff s Unjust Imprisonment Claim

Plaintiff alleges that he was wrongfully imprisoned for a crime he did not commit.
Compl. !l 10. The court's jurisdiction over claims of unjust conviction and any resulting
imprisonment, however, is quite circumscribed. Zakiya v. United States, 79 Fed. CL.231.,
234 (2007) ("The grant ofjurisdiction to the Court ofFederal Claims over a claim for
compensation for an unjust conviction and imprisonment is strictly construed." (citing
Vincin v. United States, 199 Ct. Cl. 7 62, 766 (1972))), aft d,277 F. App'x 985 (Fed. Cir.
2008). The court's jurisdiction is limited to claims for unjust conviction "ofan offense
against the United States." See 28 U.S.C. $ 1495 (2012) ("The United States Court of
Federal Claims shall have jurisdiction to renderjudgment upon any claim for damages by
any person unjustly convicted ofan offense against the United States and imprisoned.").
Here, plaintiff was tried and convicted in New York state court, but not for an offense
against the federal govemment. See Robinson v. United States,230 F.3d 1382, 1382
(Fed. Cir. 2000) (unpublished table decision) (affirming dismissal of plaintiff s unjust
conviction claim related to his underlying state court conviction because "a claim under $
1495 is cognizable only if the claimant was unjustly convicted of a crime against the
United States").
For the reasons detailed above, the court finds that none of plaintiff s claims fall
within this court's jurisdictional reach. Thus, plaintiff s complaint must be dismissed for
lack ofjurisdiction.
Even if plaintiff were to have articulated claims over which this court could
exercise jurisdiction, such claims are barred by this court's six-year statute of limitations.
See 28 U.S.C. $ 2501; John R. Sand & Gravel Co., 552 U.S. at 133-34 (holding that this
court's six-year statute of limitations is j urisdictional). Plaintiffs allegations stem from
events that occurred more than fifteen years ago. See Compl. flfl 2-10. Any cause of
action plaintiff might have had would have accrued more than six years ago and cannot
be maintained now.

10

C.

Considering Whether a Transfer is in the Interest of Justice

The court now considers whether "it is in the interest ofjustice" to transfer
s complaint to another court pursuant to 28 U.S.C. $ 1631. See 28 U.S.C. $
1631 (2012) ("[T]he court shall, if it is in the interest ofjustice, transfer such action . . . to
any other such court in which the action . . . could have been brought at the time it was
filed or noticed."); 28 U.S.C. $ 610 (2012) (defining "courts" to include, among other
things, "courts ofappeals and district courts of the United States"); see also Tex. Peanut
Farmers v. United States, 409 F.3d 1370, 137415 (Fed. Cir. 2005) (stating that the Court
ofFederal Claims should consider whether transfer is appropriate once the court has
determined that it lacks jurisdiction).

plaintiff

"The phrase 'if it is in the interest ofjustice' relates to claims which are
nonfrivolous and as such should be decided on the merits." Gallowav Farms. Inc. v.
United States, 834 F.2d 998, 1000 (Fed. Cir. 1987); id. (stating rhat "[f]rivolous claims
include 'spurious and specious arguments"' (quoting Devices for Med.. Inc. v. Boehl,
822F.2d 1062, 1068 (Fed. Cir. 1987))). "A decision to transfer rests within the sound
discretion ofthe transferor court, and the court may decline to transfer the case '[i]fsuch
transfer would nevertheless be futile given the weakness of plaintiff s case on the

merits."'Spencerv.UnitedStates,98Fed.Cl.349,359(2011)(quotingFaulknerv.
United States, 43 Fed. Cl. 54,56 (1999)).
Although plaintiff has made no mention of previously making any of his claims in
federal district court, the court's independent review of dockets in the United States
District Court for the Eastem District of New York reveals that plaintiff has filed a
number ofunsuccessful complaints, several ofwhich contain duplicative claims he now
brings in this court. One complaint in particular, filed against the state judge, state
prosecutors, county courthouse, and defense attomeys involved in plaintiffs criminal
proceedings, involves substantially similar claims to the ones contained in the complaint
filed by plaintiff here-including allegations of "unfairjustice, wrongIful] imprisonment,
tortures and racial discrimination." Compl. at 15, Gssime v. Kawanta, No. l2-CV2533(JSXETB) (E.D.N.Y. May 14,2012), Dkt. No. 1. The complaint similarly alleges
that plaintiff was denied effective assistance of defense counsel during his criminal
prosecution, was tortured by unnamed Nassau County Jail officers at the request of the
state prosecutor, was forced to undergo mental examinations by doctors appointed by the
state judge, and was imprisoned wrongfully for a crime he did not commit. See id. at 47, I I . The complaint likewise asserts racial discrimination, in violation of Section 1983
of the Civil Rights Act, as well as "[u]njust conviction, injustice, [and] abuse of power"
by defendants, in violation ofplaintiffs constitutional rights. Id. at 4. This complaint
was dismissed with prejudice by the district court. See Kawanta, No. 12-CV2533(JSXETB) ,2012 WL 3241431, at * 1 (E.D.N.Y . Aug. 2,2012) ("The court . . . sua
sponte dismisses the Complaint for failure to state a claim upon which relief may be

ll

granted and because it seeks monetary relief from Defendants who are immune from such

relief.").
Other filings made by plaintiff in the same district court contain allegations
specifically pertaining to the earlier criminal proceeding, including criticisms about the
performance of his defense counsel and claims that the officers at the Nassau County Jail
tortured and beat him. These filings also have been dismissed. See Gssime v. Bray, No.
2:06-CV-4988(JSXETB) (E.D.N.Y. Apr.3,2007), Dkt. No. 14 (dismissing plaintiff s
amended complaint in its entirety with prejudice, including plaintifls claims against
defense counsel for ineffective assistance ofcounsel and claims against unnamed Nassau
County Jail Corrections officers for physical misconduct); Gssime v. Greiner, No. 02CV-04602(JBW), 03 -MISC-0066(JBW), 2003 WL 23 1857 7 2 (E.D.N.Y. Oct. 29, 2003)
(denying ptaintiff s petition for writ ofhabeas corpus upon finding that he was not denied
effective assistance of counsel); see also People v. Gssime, 703 N.Y.S.2d 750 (App. Div.
2000) (affirming plaintiff s judgment of conviction ofarson in the second degree and
criminal contempt in the first degree), leave denied, 745 N.E.2d 401 (N'Y' 2000); People
v. Gssime, 745 N.Y.S.2d 727 (App. Div. 2002) (denying plaintiff s petition for a writ of
error coram nobis for failure to establish he was denied effective assistance ofappellate
counsel).

Plaintiff s pattern of filing in district court claims that have been deemed frivolous
has led to the revocation of his right to proceed in forma pauperis in both the Eastem and
Western Districts of New York. See Gssime v. Wasserman, No. 2:09-CV5674(JSXETB), 2010 WL 3119416 (E.D.N.Y. Aug. 3, 2010) (order revoking plaintiff s
in forma pauperis status based on numerous complaints filed by plaintiff that were
dismissed for failure to state a claim upon which relief may be granted); Gssime v.
Buree, No. 08-CV-6404(CJSXMWP), 2013 WL 443852 (W.D.N.Y. Feb. 5,2013) (order
revoking ptaintiff s in forma pauperis status as a sanction for misrepresenting his prior
litigation history to the court). Indeed, plaintiffs litigation history is well-documented in
many of cases filed in district court. See Order at l, Kawanta, No. 12-CV2533(JSXETB) (E.D.N.Y. June 21, 2012), Dkt. No. 7 (noting that plaintiff had filed nine
in forma pauperis complaints, five of which had been dismissed for failure to state a
claim upon which relief may be granted); id. at 2 (describing plaintiff s numerous filings
as a "pattem of vexatious litigation"); Wasserman, 2010 WL 3119416, at * I (observing
that plaintiff "is no stranger to this Court"); Order at 3, Gssime v. Sandoval, No. 09-CV4465(RRMXRER) (E.D.N.Y. Oct. 28, 2009), Dkt. No. 5 (dismissing plaintiff s complaint
for alleging "the same facts and transactions underlying the claims dismissed in the three

prior lawsuits").
The untimeliness of the complaints filed by plaintiff, stemming from his earlier
criminal proceedings which occurred more than fifteen years ago, has also been noted.
See Kawanta, 2012 WL 3241431, at *5 n.4 (noting that any potential conspiracy claims
against plaintiff s legal defense would be baned by the applicable statute of limitations);

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Bray, No. 2:06-CV-4988(JSXETB) (E.D.N.Y. Apr.3,2007), Dkt. No. 14 (dismissing
plaintiff s claims against unnamed Nassau County Jail Conections officers as untimely).
The prior rulings by the district court-on similarly founded claims as plaintiff has
asserted here-as well as plaintiff s related vexatious litigation history and the
untimeliness of his claims, counsel resoundingly against the transfer of plaintiff s case.
Given the apparent futility oftransfer to another federal court, the court declines to
transfer this action.

IV.

Conclusion

For the foregoing reasons, the court finds that it lacks jurisdiction over plaintiff s
claims. Defendant's motion to dismiss is GRANTED and plaintiff s complaint is
DISMISSED in its entirety. Plaintiff s motion to proceed in forma pauperis is
GRANTED, and his motion for the appointment of counsel is DENIED. The Clerk of
Court will enter judgment for defendant. No costs.

IT IS SO ORDERED.

TzuCIAE.

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