SCHILLER v. USA

Filing 17

UNREPORTED ORDER granting 8 Motion to Dismiss - Rule 12(b)(1); denying 16 Motion for Extension of Time to Amend ; denying 16 Motion for TRO. The Clerk is directed to enter judgment. Signed by Chief Judge Patricia E. Campbell-Smith. (vdw) Copy to parties.

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<!Court of jfeberal <!Claims

No. 15-628C
(Filed: December 28, 2015)
NOT FOR PUBLICATION

U.S. COURT OF
FEDERAL CLAIMS

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ANTHONY L. SCHILLER,
Plaintiff,
V.

UNITED STATES OF AMERICA,

FILED
DEC 2 a·2015

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Pro Se Complaint; Dismissal for Lack of
Jurisdiction Under RCFC 12(b)(l); Not in
Interest of Justice to Transfer Under 28
U.S.C § 1631

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Defendant.
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ORDER
Prose plaintiff Anthony Schiller, who is currently incarcerated at Liberty
Correctional Institution in Bristol, Florida, filed a complaint against certain government
officials in this court on June 18, 2015, for what appears to be allegations oftortious acts
and criminal violations against certain government officials. ECF No. 1. Defendant filed
a Rule 12(b)(l) motion to dismiss on August 17, 2015. ECF No. 8. Plaintiff filed a
motion for leave to amend his complaint on September 17, 2015, ECF No. 10, which the
court subsequently granted, ECF No. 11. By order dated September 18, 2015, the court
afforded plaintiff until October 2, 2015 to file an amended complaint. Id. at 2. On
October 19, 2015, plaintiff signed and mailed to the court a document styled as a "motion
for extension of time" (plaintiffs motion or Pl.'s Mot.). See Pl.'s Mot. 1, ECF No. 13.
The court did not receive plaintiffs motion until October 26, 2015. 1 Id.
Plaintiff claimed that he did not receive the court's September 18, 2015 order until
October 7, 2015-five days after the court-ordered due date for an amended complaint.
See id. Plaintiff also claimed that he works five to six days a week and was unable to
access the Correctional Institution's law library. Id. Plaintiff requested an extension of
time of ninety days to respond to the court's September 18, 2015 order. See id. The
On October 20, 2015-after plaintiff sent the motion but before it was received by
the court-the court ordered plaintiff to either file an amended complaint or respond to
defendant's motion to dismiss on or before November 6, 2015. ECF No. 12.

court granted plaintiff an additional forty-five days, or until December 17, 2015, to file an
amended complaint or response to defendant's motion to dismiss. ECF No. 14.
On December 18, 2015, the Clerk of Court received a document from plaintiff
styled "Affidavit/Complaint/Extension/T.R.O./Instructions." The document was filed on
this same date as a motion for extension of time to amend complaint and motion for a
temporary restraining order. ECF No. 16.
The court DENIES plaintiffs motion for an extension of time to amend his
complaint as the proposed amended complaint is not substantially different than the
earlier one. Moreover, for the reasons explained below, the court finds that it lacks
jurisdiction to consider plaintiffs claims. Accordingly, plaintiffs motion for a
temporary restraining order is DENIED and defendant's motion to dismiss is
GRANTED. The case is DISMISSED without prejudice for lack of jurisdiction
pursuant to RCFC 12(b )(1).
I.

Legal Standard

In evaluating subject-matter jurisdiction, "the allegations stated in the complaint
are taken as true and jurisdiction is decided on the face of the pleadings." Folden v.
United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (internal quotation marks omitted).
Complaints filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
Nevertheless, prose plaintiffs must meet jurisdictional requirements. Zulueta v. United
States, 553 F. App'x 983, 985 (Fed. Cir. 2014); Kelley v. Sec'y, U.S. Dep't of Labor, 812
F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucker Act grants this court jurisdiction over "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." 28 U.S.C. §
149l(a)(l) (2012). The Tucker Act is jurisdictional and does not create, by itself, any
substantive right to recover against the United States. United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a plaintiff in
this court must rest his or her claim on a money-mandating provision of law that confers
a substantive right enforceable against the federal government for money damages. See
Testan, 424 U.S. at 398.
II.

Discussion
A.

The Court Lacks Jurisdiction over Plaintiffs Claims

The court finds that it lacks jurisdiction over plaintiffs apparent claims against
certain government officials for alleged tortious and criminal acts.

2

First, as defendant points out,
[t]he United States is the only proper defendant in this Court. See RCFC
lO(a) ("The title of the complaint must name all the parties ... with the
United State designated as the party defendant .... "). This Court lacks
jurisdiction over suits against individual Federal and state officials. Brown
[v. United States], 105 F.3d [621,] 624 [Fed. Cir. 1997]; Berdick v. United
States, 612 F.2d 533, 536 (Ct. Cl. 1979). Thus, "ifthe relief sought is
against others than the United States the suit as to them must be ignored as
beyond the jurisdiction of the court." United States v. Sherwood, 312 U.S.
584, 588 (1941) (citation omitted).
Def.'s Mot. 3, Aug. 17, 2015, ECF No. 8.
Plaintiff improperly names government officials by name, rather than the
United States, as defendants in this case. Thus, plaintiffs claims are outside the
jurisdiction of the court.
Moreover, even ifthe complaint were construed to assert claims against the
United States, the court does not possess jurisdiction to entertain plaintiffs claims
of tortious and criminal conduct. Tort claims are beyond the jurisdiction of this
court. 28 U.S.C. § 149l(a)(l) (2012); Trafny v. United States, 503 F.3d 1339,
1340 (Fed. Cir. 2007); Hernandez v. United States, 96 Fed. Cl. 195, 203-04
(2010); Leitner v. United States, 92 Fed. Cl. 220, 224. Claims for criminal
violations also are beyond the jurisdiction of this court. See Joshua v. United
States, 17 F.3d 378, 379 (Fed. Cir. 1994).
For the foregoing reasons, the court lacks jurisdiction to entertain plaintiffs
claims. Thus, plaintiffs complaint must be dismissed pursuant to RCFC 12(b)(l),
see Sherwood, 312 U.S. at 588; Brown, 105 F.3d at 624; Berdick, 612 F.2d at 536.
B.

Transfer Under 28 U.S.C. § 1631

The court now considers whether "it is in the interest of justice" to transfer
plaintiffs complaint to another court of the United States under 28 U.S.C. § 1631. See
Tex. Peanut Farmers v. United States, 409 F.3d 1370, 1374-75 (Fed. Cir. 2005) (stating
that the Court of Federal Claims should consider whether transfer is appropriate once the
court has determined that it lacks jurisdiction). Section 1631 states in pertinent part:
Whenever a civil action is filed in a court as defined in section 610 of this
title or an appeal, including a petition for review of administrative action, is
noticed for or filed with such a court and that court finds that there is a want
of jurisdiction, the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or appeal could
have been brought. ...
3

28 U.S.C. § 1631; see 28 U.S.C. § 610 (defining courts as "courts of appeals and district
courts of the United States, the United States District Court for the District of the Canal
Zone, the District Court of Guam, the District Court of the Virgin Islands, the United
States Court of Federal Claims, and the Court of International Trade"). "The phrase 'if it
is in the interest of justice' relates to claims which are nonfrivolous and as such should be
decided on the merits." Galloway Farms, Inc. v. United States, 834 F.2d 998, 1000 (Fed.
Cir. 1987); see id. (stating that "[ f]rivolous claims include 'spurious and specious
arguments"' (quoting Devices for Med., Inc. v. Boehl, 822 F.2d 1062, 1068 (Fed. Cir.
1987)).
"A decision to transfer rests within the sound discretion of the transferor court, and
the court may decline to transfer the case '[i]f such transfer would nevertheless be futile
given the weakness of plaintiffs case on the merits."' Spencer v. United States, 98 Fed.
Cl. 349, 359 (2011) (alteration in original) (quoting Faulkner v. United States, 43 Fed. Cl.
54, 56 (1999)). "The basic test ... for determining if a case should be transferred is
whether it would be in 'the interest of justice' to do so." Busby School of N. Cheyenne
Tribe v. United States, 8 Cl. Ct. 588, 595 (1985).
The court finds that it would not be in the interest of justice to transfer this case to
another venue. Plaintiff has filed at least six other cases in federal courts alleging the
same or similar causes of action as the case at hand and all six cases were dismissed.
Further, plaintiff has filed at least 1,000 administrative grievances raising these same
allegations. Thus, transfer of this case is not appropriate.
III.

Conclusion

For the foregoing reasons, the court finds that it lacks jurisdiction over plaintiffs
claims. Accordingly, plaintiffs motions to amend complaint and for a temporary
restraining order are DENIED and defendant's motion to dismiss is GRANTED. The
Clerk of Court is directed to DISMISS plaintiffs complaint for lack of jurisdiction. The
Clerk of Court will enter judgment for defendant. No costs.
IT IS SO ORDERED.

ATRICIA E. CAMPB EL -SMIT
Chief Judge

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