POTTER v. USA

Filing 4

Order granting 3 Motion for Leave to Proceed in forma pauperis for the limited purpose of dismissing plaintiff's complaint. The Clerk is directed to enter judgment. Signed by Judge Marian Blank Horn. (dls) Copy to parties.

r,RIfilNAL
lJn tlst @nrtr! $rtates @ourt of fr[rrst @lsfms
No. 14-1125C
Fifed: November 20, 2014

FII-ED
NO\/ 2

ISAAC A. POTTER, JR.,

Plaintiff,
v.
UNITED STATES,

0

2014

U.S. COURT OF
FEDERALCLAIMS

:

*
*

Pro Se Plaintiff; Lack of Subject
Matter Jurisdiction.

lsaac A. Potter, Jr., Orlando, FL, pro se plaintiff.

ORDER
HORN. J.

On November 18, 2014, oro se plaintiff lsaac A. Potter, Jr., filed a complaint in
the United states court of Federal claims.l plaintiff s complaint is confusing, but
appears to allege OVERPAYMENT, FRAUD, NEGLEGENCE, [sic] BREACH OF

AGREEMENT/CONTRACT, AND PREMTUM TNCREASE' by Ctark's Memoriat Funerat
Home and Insurance Company and Mr. Virgil B. Cole, Jr. (capitalization in original).
The complaint begins by alleging that

The Secretary of State of the state of Mississippi is responsible for
overseeing laws related to pre-need, or prepaid funerals. This
includes contracts or agreements for funeral services or funeral
related merchandise. All contracts for these services must be written
r Although
the complaint is dated August 23, 2014, atthe bottom of each page, plaintiff
has signed his name with the date"1111212014," and the words'COFC.' There is no
record of any case filed by plaintiff on August 23,2014, The only identified case filed on
August 2014 was an appeal filed with the united states court of Appeals for the Federal

circuit, appealing a non-final decision by another Judge of this court in another one of
plaintiffs cases before this court. The certificate of service at the end of plaintiff's
complaint, dated November 5, 2014, reflects plaintiff mailed a certified copy to the

Attorney General's Office in Jackson, Mississippi.

on forms that have been approved by and filed with the Secretary of
State. Approved forms cannot be modified or altered in anyway.
Prepaid Funding Requirements
In Mississippi, all prepaid funerals must be paid for with life insurance or a
trust set up for this specific purpose. The contract should clearly state the
number of payments and the exact amount of each payment.
(emphasis in original).

The complaint stresses that:
lnevocable means you cannot cancel the contract, but you may transfer it
to another funeral home if you want to.

The money you give the funeral home rnusf be put in an escrow account
and invested for your benefit. The funeral home contract must say:
. The name and address of the escrow agent,
. How the funds will be invested,
. What happens if the total amount in escrow (with accrued interest or
dividends) at the time of your funeral is more or less than the price of
your funeral.
. You will get a yearly statement of the money in your account.
(emphasis in original). Turning away from Mississippi law, the complaint states:

1. COMPLAINANT ALLEGES Vepora Carter did not Finance, Insure, or
intend to pay the sum of $ 3,790.00 for Mr. Clifion Carter (Brother of
purchaser Vepora Carter).
2. COMPLAINANT ALLEGES the agreement was entered into for a select
a plan (BURIAL) ON 7i4l 1997.

3. COMPLAINANT ALLEGES CLARK'S MEMORIAL FUNERAL

HOME
AND INSURANCE COMPANY has and continue [sic] to violate FUNERAL
INDUSTRY PRACTICES.

4. COMPLAINANT ALLEGES Vepora Carter paid to insure George Clark,
Born 0111511944 and death December 2013 and did not at any time insure
Clifton Carter (brother of complainant Vepora Carter); exclusively paid
$50.00 per month for 16 years for George Clark and Vepora Carter only.
5. COMPLAINANT ALLEGES Vepora Carter has overpaid in an excess of
$2,020.00 dollars for two PURCHASERS and for a summary total of
$7,580.00 dollars.

6. COMPLAINANT ALLEGES payments of fot 2 PURCHASERS FOR 16
YEARS equal $9,600.00-$3,790.00 =$5,8 10.00 refund to an unsatisfied
client for OVERPAYMENT, FRAUD, NEGLEGENCE, [sic] BREACH OF
AGREEMENT/CONTMCT, AND PREMIUM INCREASE.
7. COMPLAINANTALLEGES the PURCHASER (VEPORA CARTER) has
paid in full the purchase agreement of $3,790.00 to date, including
overpaymenr.
(all capitalization in original). Plaintiffs complaint also states:

A. THE COMPLAINANT ALLEGE [sic]VEPORA CARTER lS A SENIOR
CITIZEN WOMAN WITH DEMENTIA,
B. THE COMPLAINANT ALLEGES ALL ACTS TOOK PLACE ON THE
SOIL WITHIN THE ACTUAL BOUNDARIES OF THE STATE [Mississippi].

c

THE COMPLATNANT (VtCTtM-VEPORA CARTER) SUFFERS LOSS
OF MONEY AND FOR PROPERTY AS A RESULT OF RELYING UPON
AND ACTING UPON THE UNTRUE REPRESENTATION.

D. THE untrue representation is believed to have harm [sic] the victim
(Vepora Carter) Bill of Rights to whom the Representatlon has been
maoe.
E. The complainant as a Senior Citizen Woman relied upon the (Director)
& Clark's Memorial Funeral Home and Insurance Company.
F. The complainant Binds the Defendants on the Princile [sic] of Equitable
Estoppel.

G. The complainant has established that the defendants owed a duty to
the complainant (Vepora Carter), Breached that duty, and proximately
caused the complainant injury, the defendants can still raise defenses that
reduce or eliminate his liability. Negligence can be found based on the
doctrine of res ipsa loquitor [sic].

l. [sic] The defendants filed a fraudulent

contract for applicant Clifton

Carter.

Wherefore the complainant prey for restitution to compensate victim for
harm suffered due to fraud, overpayment, breach of contract, premium
Increase.
a. actual damages,
b. interest,

c. Punitive damages according to law
(capitalization in original).

When determining whether a complaint filed by a pro se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a pro se complaint be held to "less stringent standards than formal
pleadings drafted by lawyers"), reh'q denied,405 U.S. 948 (1972); see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Huqhes v. Rowe, 449 U.S. 5, 9-10 (1980); Esteile v.
Gamble,429 U.S.97, 106 (1976), reh'q denied,429 U.S. 1066 (1977); Matthews v.
United States,750 F.3d 1320, 1322 (Fed. Cir.2014); Diamond v. United States, 115
Fed. cl. 516,524 (2014). "However, "'[t]here is no duty on the part of the trial court to
create a claim which [the plaintiff] has not spelled out in his [or her] pleading.""' Lenqen
v. United states, 100 Fed. cl. 317, 328 (2011) (alterations in original) (quoting scoqin v.
United States,33 Fed. C|.285,293 (1995) (quoting Clarkv. Nat'l Travelers Life Ins. Co.
518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. Ct. 89,
94, affd,443 F. App'x 542(Fed.Cu.2011); Minehan v. United States, 75 Fed. Cl.249,
253 (2007). "while a prq se plaintiff is held to a less stringent standard than that of a
plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden
of establishing the court's jurisdiction by a preponderance of the evidence." Riles v.
United States, 93 Fed. Cl. 163, 165 (2010) (citing Huohes v. Rowe,449 U.S. at 9 and
Tavlor v. United states, 303 F.3d 1357, 1359 (Fed. cir.) ("plaintiff bears the burden of
showing jurisdiction by a preponderance of the evidence."), reh,q and reh'o en banc
denied (Fed. Cn.2002)); see also Harris v. United States, 113 Fed. Cl.29O, Zg2(z}jt
("Although plaintiffs pleadings are held to a less stringent standard, such leniency'with
respect to mere formalities does not relieve the burden to meet jurisdictional
requirements."'(quoting Minehan v. United States, 75 Fed. Cl. at 253)).

It is well established that

"'subject-matter jurisdiction, because it involves a
court's power to hear a case, can never be forfeited or waived.',' Arbauqh v. y & H
Coro.,546 U.S.500,514 (2006) (quoting United States v. Cotton,53b U
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
cx rel. Henderson v. shinseki, 131 s. ct. 1197, 1202 (2011); see also Hertz corp. u
Friend, 559 u.s. 77, 94 (2010) ("courts have an independent obligation-to
determrne
whether subjecfmatter jurisdiction exists, even when no party challenges it." (citing
AJbauqhv. Y& H Coro.,546 U.S. at514)); Speciat Devices. Inc. v. OEA.lnc.,269 F.3d
1340, 1342 (Fed. cir. 2001) ('[A] court has a duty to inquire into its yurisdiction ro near
g1! decidga case." (citing Johannsen v. pav Less Druq Stores N.W.. Inc.,91g F.2d
(Fed. Cir. 1990))); View Enq'q. Inc. v. RoboticVision Svs.. tnc_ 115 F.3d 962,
1q9, 161
963 (Fed. cir. 1997) ("[c]ourts must always look to their jurisoiction, rvrretner the parties
raise the issue or not."). "The objection that a federal court lacks subject-matter
jurisdiction . . . may be raised by a party, or by a court on its own initiative, af any stage
in the litigation, even after trial and the entry of judgment." Arbauqh v. y & H corp., 546

U.S. at 506; see also Cent. Pines Land Co.. L.L.C. v. United States,697 F.3d 1360,
1364 n.1 (Fed. Cir. 2012) (" An objection to a court's subject matter jurisdiction can be
raised by any party or the court at any stage of litigation, including after trial and the
entry of judgment." (citing Arbauqh v. Y & H Corp., 546 U.S. at 506)); Rick's Mushroom
Serv.. lnc. v. United States,521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may
challenge, or the court may raise sua sponte, subject matter jurisdiction at any time."
(citing Arbauqh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d
1344, 1354 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir. 2004), cert. denied,
545 U.S. 1127 (2005); and Fanninq, Phillips & Molnarv. West, 160 F.3d 717,720 (Fed.
Cir. 1998))); Pikulin v. United States, 97 Fed. C|.71,76, apoeal dismissed,425 F. App'x
902 (Fed. Cu.2011). In fact, "[s]ubject matter jurisdiction is an inquiry that this court
must raise sua sponfe, even where . . . neither party has raised this issue." Metabolite
Labs.. Inc. v. Lab. Corp. of Am. Holdinqs,370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile
Prods., lnc. v. Mead Corp., 134 F.3d 1481 ,1485 (Fed. Cir.), reh'q denied and en banc
suqqestion declined (Fed. Cir.), cert. denied,525 U.S.826 (1998)), reh'o and reh'q en
banc denied (Fed. Cir. 2004), cert. sranted in part sub. nom Lab. Corp. of Am. Holdinos
v. Metabolite Labs.. lnc., 546 U.S. 975 (2005), cert. dismissed as improvidentlv qranted,
548 U.S. 124 (2006).
Pursuant to the Rules of the United States Court of Federal Claims (RCFC) and
the Federal Rules of Civil Procedure, a plaintiff need only state in the complaint "a short
and plain statement of the grounds for the court's jurisdiction," and "a short and plain
statement of the claim showing that the pleader is entitled to relief." RCFC 8(a)(1), (2)
(2014): Fed. R. Civ. P. 8(aX1), (2) (2014); see also Ashcroft v. lqbal, 556 U.S. 662,67778 (2009) (citing Bell Atl. Corp. v. Twombly,550 U.S. 544,555-57,570 (2007)).
"Determination of jurisdiction starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiffs claim, independent of any
defense that may be interposed." Hollev v. United States,124 F.3d 1462,'1465 (Fed.
Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust,463 U.S. 1 (1983)),
reh'q denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States,
97 Fed. Cl. 203, 208 (2011); Gonzalez-McCaullev Inv. Grp.. Inc. v. United States, 93
Fed. Cl. 710,713 (2010). "Conclusory allegations of law and unwarranted inferences of
fact do not suffice to support a claim." Bradley v. Chiron Corp., 136 F.3d 1317,1322
(Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp.,501 F.3d 1354, 1363 n.9 (Fed.
Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and A.
Miller, Federal Practice and Procedure S 1286 (3d ed. 2004)). "A plaintiffs factual
allegations must'raise a right to relief above the speculative level' and cross 'the line
from conceivable to plausible."' Three S Consultinq v. United States, 104 Fed. Cl. 510,
523 (2012) (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555), affd, 562 F. App'x 964
(Fed. Cir.), reh'q denied (Fed. Cir. 2014). As stated in Ashcroft v. lqbal, "[a] pleading
that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause
of action will not do.' 550 U.S. at 555. Nor does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual enhancement."' Ashcroft v. lqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555).

When deciding a case based on a lack of subject matter jurisdiction or for failure

to state a claim, this court must assume that all undisputed facts alleged in the

complaint are true and must draw all reasonable inferences in the non-movant's favor.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("ln addition, when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 n.1 (2002)))); Scheuer v. Rhodes, 416
U.S. 232, 236 (1974) ("Moreover, it is well established that, in passing on a motion to
dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader."), abroqated on other qrounds by Harlow v. Fitzqerald, 457
U.S. 800 (1982), recoonized !y Davis v. Scherer, 468 U.S. 183, 190 (1984); United pac.
lns. Co. v. United States, 464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish lndian
Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.2005); Boise Cascade Corp. v.
United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh'o and reh'q en banc denied (Fed.
Cir.2002), cert. denied, 538 U.S. 906 (2003).
The Tucker Act grants jurisdiction to this court as follows:

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 contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort.

g
?8 U SC 1a91(a)(1) (2012). As interpreted bythe United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction over claims against the
united states ('1) founded on an express or implied contract with the united States, (2)
seeking a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
ggyellm9|l for damages sustained. See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United states v. Mitcheil,463 u.s. 206,2i6 (1983); sec also Greenlee
Cnty., A{iz. v. United States, 487 F.3d B7j, A7S (Fed. Cir.), fglg
C!_berc
".0-fClS
dgliqd (Fed. cu. 2007), cert. denied, s52 u.s. 1142 (2008); patmer v. uniteo states,
168 F.3d 1310,1314 (Fed. Cir. 1999).
"Not every claim invoking the constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against
the United States . . . ." United States v. Mitchell, 463 U.S. at 21-6; see ilso United
States v-White Mountain Apache Tribe, S37 U.S. 465, 472 (ZOOS); Smith v. United
States, 709 F. 3d 1114, 1116 (Fed. Cir.), cert. denied, te+ S. Ct ZSS lZOta;
EedllqSheek Corp. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rickb
Mushroom serv.. Inc. v. United states, s2i F.3d at 1343 ('[p]laintiff must . . . iilentirv a
substantive source of law that creates the right to recovery of money damages agarnsr
the United states."). In ontario Power Generation. Inc. v. United 'states, -the united

States Court of Appeals for the Federal Circuit identified three types of monetary claims
for which jurisdiction is lodged in the United States Court of Federal Claims. The court
wrote:

The underlying monetary claims are of three types. First, claims
alleging the existence of a contract between the plaintiff and the
government fall within the Tucker Act's waiver . . . . Second, the Tucker
Act's waiver encompasses claims where "the plaintiff has paid money over
to the Government, directly or in effect, and seeks return of all or part of
that sum." Eastport S.S. fCorp. v. United States, 178 Ct. Cl. 599, 605-06,]
372 F.2d [1002,1 1007-08 [(1967)] (describing illegal exaction ctaims as
claims "in which 'the Government has the citizen's money in its pocket'
(quoting Clapo v. United States,127 Ct. C|.505, 117 F. Supp. 576,580
(1954))
. Third, the Court of Federal Claims has jurisdiction over those
claims where "money has not been paid but the plaintiff asserts that he is
nevertheless entitled to a payment from the treasury." Eastport S.S., 372
F.2d at7. Claims in this third category, where no payment has been made
to the government, either directly or in effect, require that the "particular
provision of law relied upon grants the claimant, expressly or by
implication, a right to be paid a certain sum." ld.; see also Testan [v
United Statesl , 424 U.S.1392,] 401-02 [1976] ("Where the United States is
the defendant and the plaintiff is not suing for money improperly exactec
or retained, the basis of the federal claim-whether it be the Constitution, a
statute, or a regulation-does not create a cause of action for money
damages unless, as the Court of Claims has stated, that basis 'in itself . . .
can fairly be interpreted as mandating compensation by the Federa.
Government for the damage sustained."' (quoting Eastport S.S., 372 F.2d
at 1009)). This category is commonly refened to as claims brought under
a "money-mandating" statute.

.

Ontario Power Generation. Inc. v. United States,369 F.3d 1298, 1301 (Fed. Cir.2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012\.

To prove that a statute or regulation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon "'can fairly be
interpreted as mandating compensation by the Federal Government."' United states v.
Navaio Nation, 556 U.S. at 290 (quoting United States v. Testan,424 U.S. at 400); see
algs United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell,463 U.S. at 217; Blueport Co.. LLC v. United States, 533 F.3d 1374, 1383
(Fed. Cir. 2008), cert. denied,555 U.S. 1153 (2009). The source of taw granting
monetary relief must be distinct from the Tucker Act itself. see United states v. Navaio
Nption, 556 u.s. at 290 (The Tucker Act does not create "substantive rights; [it is sirnply
al jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.9., statutes or contracts)."). ,,,lf the statute is not
money-mandating, the court of Federal claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter serv.. Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cntv.. Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction
under the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
Although the complaint is difficult to follow, it appears plaintiff is unhappy with the
actions of the Clark's Memorial Funeral Home and Insurance Company, Mr. Virgil B.
Cole, Jr. and the State of Mississippi. The court does not have jurisdiction over plaintiff's
grievances with Clark's Memorial Funeral Home and Insurance Company, Mr. Cole, or
the State of Mississippi. This court lacks jurisdiction to adjudicate claims against state
agencies and private individuals. See Souders v. S.C. Pub. Serv. Auth., 497 F.3d 1303,
1308 (Fed. Cu.2007); Mora v. United States, No. 14-951C,2014WL 5088679, at -2
(Fed. Cl. Oct. 9, 2014) ("To the extent that plaintiff states claims against private
individuals or entities, the court lacks jurisdiction over these claims."); Reid v. United
States, 95 Fed. Cl. 243,248 (2010) ("The Court of Federal Claims does not have
jurisdiction to hear plaintiffs claims naming states, localities, state government
agencies, local government agencies and private individuals and entities as
defendants."); Woodson v. United States, 89 Fed. Cl. 640, 649 (2009) (citing Shalhoub
v. United States, 75 Fed. Cl. 584, 585 (2007)).
Furthermore, the United States Supreme Court has indicated that for suits filed in
the United States Court of Federal Claims and its predecessors, "[i]f the relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdiction of thecourt." United Statesv. Sherwood,312 U.S.584,588, (1941) (citation
omitted). Stated differently, "the only 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); see also United States v.
Sherwood, 312 U.S. at 588. As none of plaintiff's claims are against the United States,
this court lacks jurisdiction over plaintiff's complaint.

Along with his complaint, plaintiff also filed a motion to proceed in forma pauperis
on November 18,2014. As the court lacks jurisdiction over plaintiffs claims, the court
grants plaintiff's motion to proceed in forma pauperis for the limited purpose of
dismissing Mr. Potter's complaint. In the interest of justice, plaintiffs complaint is
DISMISSED. The Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.

MARIAN BLANK HORN
Judge