BARTH v. USA

Filing 11

ORDER OF DISMISSAL. The Clerk is directed to enter judgment. Mailed via USPS certified mail #70160910000235083623. Signed by Senior Judge Nancy B. Firestone. (dw) Copy to parties.

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FILED

No. l7-635 C
(Filed: June 14,2017)
NOT FOR PUBLICATION

JUN | 4

20t7

U.S. COURT OF
FEDERAL CLAIIVIS

JOHN S. BARTH,
Pro Se Plaintiff,

THE UNITED STATES,

Pro Se; Sua Sporle Dismissal; Lack of
Subject Matter of Jurisdiction; Claims
Against State Officials and Agencies;
Civil Rights Claims; Tort Claims;
RICO Claims; Constitutional Claims;
Collateral Attack of Other Court
Decisions

Defendant.

ORDER OF DISMISSAL
The complaint in this case was filed by John Barth proceeding pro se on May 10,

2017. The claims alleged in the complaint appear to be rooted in

a

long-running dispute

between the plaintiff and his neighbor, Starlet McNeely. As set forth in the complaint, the

plaintiff alleges that Ms. McNeely has "sought for over four morc years to force the
Plaintiff from his home by extreme nuisance, keeping large dogs outside to bark through
the night, and other crimes including vandalism and assault." Compl.

1

8. Plaintiff

s

claims relate to the alleged failure ofvarious federal and state court judges and

individuals working for state and federal courts to provide him with the reliefhe has
sought in the various lawsuits he has filed against Ms. McNeely. Mr. Barth has also
named several individuals whom he claims are involved in his dispute with Ms.

McNeely. Specifically, Mr. Barth has named

as defendants:

(1) the United States; (2)

Judge Elizabeth Kovachevich, of the U.S. District Court of the Middle District of Florida;

(3) Jacob Travers, an employee of the United States Supreme Court; (4) the State

of

Florida; (5) Judge Kimberly (Carlton) Bonner of the Twellth Judicial Circuit Court of
Florida; (6) Sarasota County ofFlorida; (7) Scott Ortner, a Florida state official; (8)
Robert Lincoln, the lawyer representing Ms. McNeely and several other private

individuals involved in the neighborhood dispute; (9) Starlet McNeely, owner of adjacent
property; (10) Chantel Hollman, McNeely's daughter; (1 l) Herbert Buck,

a

nearby

resident involved in the neighborhood dispute; and (12) any persons yet unknown that
may become defendants or seek to obstruct this action or injure the plaintiff. Compl. 4.

Mr. Barth claims that the parties named have violated his due process and equal
protection rights and have taken his property without just compensation. He also makes a

variety ofjudicial misconduct, racketeering, nuisance and assault claims. By way of
relief, Mr. Barth states that he is seeking compensatory damages of $1,500,000.00 for
loss of quality of life and 5300,000.00 for the purchase of another home where animal
nuisances are not permitted. He is also seeking $1,000,000.00 from each government

entity that has denied his constitutional rights. Finally, the plaintiff "demands the
imprisonment of each of [the defendants] for four years under continuous monitoring and
noisemaking sufficient to ensure that they do not sleep more than four hours in any

twenty-four hour period." Compl. 30.
For the reasons explained below, the court has determined that jurisdiction is

lacking over all of plaintiff s claims. Accordingly, under Rule 12(hX3) of the Rules of the
United States Court of Federal Claims ("RCFC'), the action is DISMISSED.

I.

STANDARD OF REVIEW

"Courts have an independent obligation to determine whether subject-matter

jurisdiction exists...." Hertz Corp. v. Friend,559 U.S. 77,94 (2010). If the court lacks
jurisdiction, it cannot proceed with the action. Arbaughv. Y&H Corp.,546 U.S. 500'
514 (2006). Even ifsubject matter jurisdiction has not been challenged by either party,
the court must evaluate the existence of subject matter jurisdiction. Id. at 506. Rule
the Court of Federal Claims 12(h)(3) provides:

"If

of
it

the court determines at any time that

lacks subject-matter jurisdiction, the court must dismiss the action."

In determining whether subject matter jurisdiction exists, the court will take
uncontested allegations as true and

will

construe them in the light most favorable to the

plaintiff. Estes Express Lines v. United \tates,739F.3d689,692 (Fed. Cir. 2014). ln
addition, the pleadings of pro se plaintiffs will be held

"'to

less stringent standards than

formal pleadings drafted by lawyers."' Johnsonv. United States, 411 F. App'x 303, 305
(Fed. Cir. 2010) (quoting Haines v. Kerner,404 U.S. 519,520 (1972)). However, the

court's leniency will not relieve the burden on a pro se plaintiffto meet jurisdictional
requirements. Minehanv. United States, 75 Fed. Cl.249,253 (2007),
In order to avoid dismissal, the plaintiff must demonstrate that his claims fall

within the court's jurisdiction and that substantive law creates a right to money damages.
Fisher v. united states,402F.3d 1167, 1172 (Fed. Cir. 2005). As discussed below,
although the plaintiff cites this court's jurisdictional statute, the Tucker Act, 28 U.S.C.
1491, as a basis for jurisdiction, Compl. 10, this court finds that none of his claims fall

within that jurisdictional grant.

$

IL

DISCUSSION

To begin, the Court of Federal Claims only has jurisdiction to hear claims against
the United States. United States v. Sherwood,3l2 U.S. 584, 588 (1941) (explaining that
the court's'Jurisdiction is confined to the rendition of money judgments in suits brought

for that relief against the United States . . . and if the reliefis against others than the
United States the suit

as

to them must be ignored as beyond the jurisdiction of the

court."). As this court explained in Anderson v. United States, the Court of Federal
Claims lacks 'Jurisdiction over any claims alleged against states, localities, state and local
government entities, or state and local govemment officials and employees; jurisdiction

only extends to suits against the United States itself." I l7 Fed. Cl. 330, 331 (2014).
Therefore, this court lacks jurisdiction over all claims against parties other than the

United States and all claims against those parties must be dismissed, including his claims

for: nuisance, judicial misconduct and abuse ofoffice, racketeering, and various tort
claims such as nuisance and assault.

This court also lacks jurisdiction over plaintiff s claims against the United States.
First, this court does not have jurisdiction over claims brought by plaintiff for violations

of the

civil

Rights Acts or for deprivation of rights under the color of law. only federal

district courts, and not the Court of Federal Claims, have jurisdiction to hear claims
alleging civil rights violations. See Jones v. United States, 104 Fed. Ct.92'99 (2012);

Marlinv. United States,63 Fed. Cl. 4'15,4'76 (2005) (citing Wildman v. United

States, 28

Fed. Cl. 494,495 (1993) ("[T]he Court does not have jurisdiction to consider civil rights

claims brought pursuant to 42 U.S.C. $$ 1981, 1983, or 1985 because jurisdiction over

claims arising under the Civil Rights Act resides exclusively in the district courts."). This
court similarly lacks jurisdiction to hear claims alleging deprivation of civil rights under

color of law. See Jones,104 Fed. Cl. at 99 (dismissingpro se plaintiff

s

claim for

deprivation ofrights under color of law for lack ofj urisdiction).
Second, this court lacks jurisdiction to hear
States sounding in

tort. The Tucker Act

plaintiff s claims against the United

states that "[t]he 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." 28 U.S.C.

$

la91(aXi) (emphasis added). Thus the many claims plaintiff has alleged in connection
with his neighborhood dispute, such

as nuisance, assault, slander, harassment, and

trespass, to the extent they include the United States, sound in tort and must be dismissed.
See McKenzie

v. United States,524F. App'x 636, 637-38 (Fed. Cir. 2013) (held that

public nuisance claim brought by federal prisoner proceeding as a pro se plaintiff
sounded in tort and therefore was not within subject matter jurisdiction of Court
Federal Claims under the Tucker Act); Moore v. United States,4l9 F.

of

App'x 1001,

1002

(Fed. Cir. 2011) (assault claim sounded in torL); Kortlander v. United States,107 Fed. Cl.

357,368 (2012) (slander and harassment sounded in tort); Cycenas v. United States,120
Fed. Cl. 485,498 (2015) (trespass claim sounded in tort). This court also does not have

jurisdiction over plaintiff

s claims that are

criminal in nature such as vandalism,

alleged in his complaint. Jones v. United States,440 F.

App'x

as

916, 918 (Fed. Cir. 201 1).

Third, this court lacks jurisdiction over plaintiff

s

of

claims related to violations

the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. $ 1964.

RICO vests jurisdiction over civil actions involving racketeering claims exclusively in
the federal district courts. See Julian v. United States, 658 F. App'x 1014, 1016-17 (Fed.

Cir. 2016) (zuCO Act is not a money-mandating statute conferring jurisdiction on the
U.S. Court of Federal Claims); Stanwyck v. United States, 127 Fed. Cl. 308,

3

l5 (2016)

(The RICO Act "provides for a civil action within the exclusive federal jurisdiction

of

U.S. district courts, and not this court.").
Fourth, this court lacks jurisdiction over plaintiff s claims based on alleged

violations of the Due Process and Equal Protections clauses of the Fifth and Fourteenth
Amendments. It is well-settled that neither of these clauses are money-mandating and
thus cannot serve as a basis forjurisdiction in this court. See Smith v. United States,'709

F.3d I I14, 1116 (Fed. Cir. 2013) ("[T]he Fourteenth Amendment's Equal Protection
Clause" and "the Due Process clauses of both the Fifth and Fourteenth Amendments do
not mandate the payment of money and thus do not provide a cause of action under the
Tucker Act."); see also Leblanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)
(alleged due process and equal protection violations are an insufficient basis for

jurisdiction because they do not mandate payment of money damages).
Finally, because this court does not have jurisdiction to review the actions of
federal district courts, plaintiff s Fifth Amendment Taking claim must also be dismissed.
The plaintiff appears to allege that the decisions of the United States District Court for
the Middle District of Florida and the United States Court of Appeals for the Eleventh

Circuit dismissing the

case he

filed against Ms. McNeely amounted to

a

taking of his

property withoutjust compensation.r The Federal Circuit has held, however, that the
Court ofFederal Claims does not have jurisdiction over a taking claim requiring this
court to determine whether another court case was coffectly decided. As the Federal

Circuit stated in Vereda, Ltda. v. United States, "the Court of Federal Claims cannot
entertain a taking claim that requires the court to 'scrutinize the actions

of

another

tribunal." 271 t-.3d 1367,1315 (Fed. cir. 2001) (quoting Allustiarte v. united states,256
F.3d 1349,1352 (Fed. Cir. 2001)). Here, plaintiff

s

taking claim would require this court

to review the decisions of the District court for the Middle District of Florida and the
Court of Appeals for the Eleventh Circuit. Because the court may not review those
decisions, plaintiff s taking claim must be dismissed.

ilI.

CONCLUSION

For all of the above-stated reasons, plaintiff s complaint is DISMISSED in
accordance with RCFC 12(hX3) for lack

ofjurisdiction. lhe clerk is directed to enter

judgment accordingly.

IT IS SO ORDERED.

FIRESTO

r see

Barth v. McNeely,No.8:14-cV-001 18-EAK-EAJ, 2014 wL 3101348 (M.D. Fla, July 7,2014) (granting
defendants' motion to dismiss for failure to state a claim and lack ofsubject matter j urisdiction). The dismissal was
t:pheld in Barth v. McNeely,603 F. App'x 846 (l lth Cir.20l5), cert. denied, 136 S. Ct. 217 (2015).