PERALES v. USA

Filing 8

Order of Dismissal denying 4 procedural Motion ; denying 5 Motion to admit related cases and denying 3 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to enter judgment. Signed by Judge Patricia E. Campbell-Smith. (dw) Copy to parties.

ilREGIilIAL
IJn tbe @ntteb btutes @ourt of Jfelers[ [,Lutms
No. l7-867C

FILED

(Filed: July 28,2017)

JUL

2I

20t7

U.S. COURT OF

FEDEMLC|jIMS

AZAEL D. PERALES,
Pro Se Plaintiff,

Pro Se Complaint; Sua Sponte
Dismissal; Frivolous.

THE UNITED STATES,
Defendant.

OPINIONAND ORDER
On June 23,2017, plaintiff in the above-captioned case, appearing pro se,
filed a complaint in this court. Pl.'s Compl. ECI.'No. l, (Filed UnOer Seit).
Plaintiff also filed with his complaint: (1) an application to appear in forma
pauperis, (lFP Application), seeking permission to proceed without paying
the
court's filing fee, ECF No. 3; (2) a procedural motion moving the court to appoint
a Special Master, pursuant to 42 U.S.C. gg 200aa-12(c), ECF No. a; and, (3) a
motion to admit related cases, ECF No. 5. For the reasons stated below, plaintifls
complaint is DISMISSED as frivolous, plaintiffs IFp Application is DENIED,
and plaintiff s procedural motion and motion to admit related cases are DENIED
as moot.

I.

Plaintiff s Claims Are Frivolous

Mr. Perales' complaint is largely made up of nonsensical lists containing
names ofpersons he identifies as defendants followed by several pages containing
excerpts of criminal statutes generally pertaining to the Racketeer Influenced and
Com-rpt Organizations Act (RICO). pl.'s Compl., passim. With limited
exceptions, this court has authority to.,issue judgments for money against the
United States only when they are grounded in a contract, a money-mindating
statute, or the takings clause of the Fifth Amendment." Drake v. Fitzwater, No.
15-408C, 2015 WL 1883766, at *t (Fed. Cl. Apr. 23,20t5) (citing United States
v. Testan, 424 U.5.392,397-98 (t976)) (emphasis added).

The plaintiff must "identifu a substantive right for money damages against
the United States separate from the Tucker Act itself' for the court to exercise
jurisdiction over a claim. Todd v. United States, 386 F.3d 1091, 1094 (Fed. Cir.
2004). The substantive source of law allegedly violated must "'fairly be
interpreted as mandating compensation by the Federal Govemment."' United
States v. Navajo Nation, 556 U.S. 287 ,290 (2009) (quoting United States v.
Testan, 424 U.S. 392, 400 (1976)). "Subject-matter jurisdiction may be
challenged at any time by the parties or by the court sua sponte." Folden v. United
States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (quoting Fanning. Phillips & Molnar
v. West, 160 F.3d 717 , 720 (Fed. Cir. 1998). "In deciding whether there is
subject-matter jurisdiction, "the allegations stated in the complaint are taken as
true andjurisdiction is decided on the face ofthe pleadings." Folden, 379 F.3d at
1354 (quoting Shearin v. United States ,992 F .2d I 195, I 195-96 (Fed. Cir. 1993)).
Should the court find that jurisdiction is wanting, the court must dismiss the claim.

Dismissal of a case is also appropriate upon the court's determination that
the action is frivolous, malicious, or fails to state a claim on which relief may be
granted. See 28 U.S.C. g l9l5(e) (2012); Neitzke v. Williams,490 U.S. 319,325
(1989) (defining when an action lacks an arguable basis in law or in fact); Taylor
v. United States, 568 F. App'x 890, 891 (Fed. Cir.2014) (citing 28 U.S.C.
$
l9l5(e)(2)(B)) ("[A] district courr is required to dismiss a frivolous complaint
from a litigant who is proceeding in forma pauperis.',). ,,Frivolous complaints
include those in which the factual allegations asserted are so unbelievable that
there is no need for an evidentiary hearing to determine their veracity.,' Taylor,
568 F. App'x at 891 (citing Neitzke,490 U.S. at327 (identifying as frivolous
those claims that describe "fantastic or delusional scenarios,')).

Mr. Perales does not ground his claims in either a money-mandating
statute, regulation, or contract. See 28 U.S.C. g lagl(a)(l) (2012); Hebert v.
united states, 114 Fed. cl. 590, 593 (2014) (no waiver ofthe court's iurisdictional
requirements available to pro se plaintiffs). Nor does his complaint contain anv
cognizable argument or claim for relief. pl.s' Compl., p4CSi!S. Instead, his
submissions to the court are nothing more than an extensive list of names attached
to pages of criminal statutes and other material excerpted from criminal cases he
previously filed in other jurisdictions. consistent with the guidance provided by
the Federal Circuit in Taylor, 568 F. App,x at 891, the court finds that the
recitations in plaintiffs complaint constitute frivolous allegations that do not
require

-

and cannot receive

- further proceedings

here.

il.

Plaintiff

s Claims

Will Not Be Transferred

will

consider transferring a case to another court when "a
a clearly stated and non-frivolous complaint." Schrader v.
United States, 103 Fed. C1.92, 101 (2012) (citing Phans v. United States, 87 Fed.
Cl. 321,330-3 I (2009) (determining that it was not in the interest ofjustice to
transfer plaintiff s claims because, in the court's view, plaintiff s claims were
"unlikely to be meritorious in another court of the United States"), aff d, 388 Fed.
Appx. 961 (Fed. Cir. 2010) (unpublished)); see also Tex. Peanut Farmers v.
United States, 409 F.3d 1370, 137 4-7 5 (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). Based on the patently frivolous nature of
Mr. Perales' claims and the unlikelihood that plaintiff s claims would be
"meritorious in another court of the United States," Phans, 87 Fed.Cl. at 330, the
court does not find it to be "in the interest ofjustice" to transfer his complaint
under 28 U.S.C. $ 1631 (2012).

The court

plaintiff articulates

IIL

Plaintiff s Motion for Leave to Proceed In Forma Pauperis

Pursuant to 28 U.S.C. $ 1915, a "court of the United States" is permitted to
waive filing fees and security under certain circumstances.l See 28 U.S.C. $
1915(a)(1) (2012); see also Hayes v. United States, 71 Fed. C1.366,366-67 (2006)
(concluding that g 1915(a)(1) applies to both prisoners and non-prisoners alike).
As explained on this court's website in "A Guide for Self-Representation (2017)
under the section titled, Pro se Information, "in_fotrnA_pAUpe$,, is defined as
"[p]ermission given by the court for an individual to file a case without
prepayment of the required court fees because the person is unable to pay them.,'
Pro Se Information, http://www.uscfc.uscourts.gov/sites/defaulVfiles/pro-SeGuidebook-FlNAl_0.pdf (last visited luly 25,2017). plaintiffs wishing to
proceed in forma pauperis must submit an affidavit that includes a statement of
their assets, declares their inability to pay the fees or give the security, and
describes the nature of the action brought and the basis for the redress sought. 2g
U.S.c. $ lels(a)(1) (2012).

Under ordinary circumstances, "the threshold for a motion to proceed in
forma pauoeris is not high: [t]he statute requires [simply] that the applicant be

'

The Court of Federal Claims, while not generally considered to be a.,court
of the united States" within the meaning of Title 28 of the United States code, is
nonetheless deemed to be a "court of the United States" for purposes of this
statute, and thus has jurisdiction to grant or deny IFp applications. See 2g U.S.C.
$ 2503(d) (2012) (deeming the Court of Federal Claims to be.,a court of the
United States" for the purposes of 28 U.S.C. g 1915).

'unable to pay such fees.' 28 U.S.C. $ 1915(aXl). To be "'unable to pay such
fees' means that paying such fees would constitute a serious hardship on the

plaintiff." Fiebelkomv.UnitedStates,TTFed.Cl.59,62(2007);seealsoMoore
v. United States, 93 Fed. Cl. 411, 414-15 (2010).
In his IFP Application, plaintiff states that he has no source of income aside
from unemployment insurance and adds that he only has approximately $1050.00
in assets - to include funds in his checking and savings accounts and one
automobile. IFP Application l-2. Although the court finds that the payment of
fees would prove to be a hardship for plaintiff, the court also finds that plaintiff s
history of filing frivolous, repetitive, and vexatious actions militates against the
grant of his IFP application. See 28 U.S.C. $ l9l5(e); Neitzke, 490 U.S. at 325
(1989) (defining when an action lacks an arguable basis in law or in fact). Since
2009, plaintiffhas filed dozens ofnearly identical complaints alleging RICO
claims against government entities in district courts across the country; these
various claims have been dismissed as frivolous. See. e.g., Perales v. Lowe's Co..
Inc.. et al., Case No. l:09-cv-00173, ECF No. 3 (D. Vt., Aug. 19, 2009) (In a
similar claim against several federal agencies among other defendants, the district
court granted the IFP Application for the purpose of dismissing the claim as
frivolous); Perales v. Cit-v of Buena Park. Cal.. et al., Case No. 8:10-cv-00542,
ECF No. 9 (D.C. Cal., Aug. 4, 2010) (IFP Application denied and complaint found
to be frivolous); Perales v. United States, Case No. 4:11-cv-00113, ECF No. 5 (D.
Ariz., Feb. 22,2011) (IFP Application denied because complaint found to be
frivolous); Perales v. Ford Motor Credit Co.. LLC, Case No. 13-56935, ECF No. 4
(9th Cir., Feb. 20, 2014) (denying IFP Application, directing payment of docketing
fee, and finding appeal frivolous) dismissed Mar.20,2014. Inone case in which
Mr. Perales alleged substantially similar allegations of criminality by the same
defendants as he has here, the central District of california identified plaintiffas
"a prolific litigant who has been denied repeatedly leave to file withoul
prepayment of the filing fee . . . [because] plaintiffs allegations are frivolous zlrrd
nonsensical." Perales v. Apex Build's Maint.. et al., No. g:10-cv_00016. ECF No.
2. (C.D. Cal., Jan. 22,2010). Despite the many dismissals of various claims
plaintiff has made, his habit ofvexatious filings is unabated. see In re collier,907
F.2d 157 (Fed. Cir. 1990).
To date, plaintiffs long history of filing complaints constitutes an abuse of
the judicial process and seryes to deplete the court and the government of the
resources required to address meritorious claims brought by pro se litigants. For
Sf_::lryn,plaintifls request ro proceed without payment oithe filintfee is

DENIED.

ry.

Conclusion

Plaintiff

complaint here is similar to previous court filings that have been
deemed vexatious. Accordingly, plaintiff s complaint is DISMISSED as
frivolous in accordance with 28 U.S.C. g 1915(eX2XB); plaintiffs IFP
Application, ECF No. 3, is DENIED; and, plaintiff s procedural motion, ECF No.
4, and motion to admit related cases. ECF No. 5. are DENIED as moot.
s

The Clerk ofthe Court shall enterjudgment for defendant. No costs.
Additionally, the clerk's office is directed to return any future filings not in
compliance with this court's rules to plaintiff, unfiled, without further order.2

IT IS SO ORDERED.

2

on July 24,2017,the clerk's office received a firing from plaintiff titred
"Petition for writ of Mandamus and verified complaint for Iniunctive and
Declaralory Relief Preliminary statement." The clLrk's office-stated the filing was
defective because there is no provision in this court's rules to allow for the filLe
of this submission. Pursuant to the filing of this opinion, the clerk's office shali
return plaintiff s July 24,2017 submission to plaintiff. UNFILED.