IRVIN-BEY v. USA

Filing 9

UNREPORTED Order denying 6 Motion for Default Judgment; denying, as moot, 7 Motion to Dismiss - Rule 12(b)(1) and (6); returning, unfiled, plaintiff's "Writ of Replevin"; and dismissing the case for failure to prosecute. The Clerk is directed to enter judgment. Signed by Judge Victor J. Wolski. (dls) Service on parties made. (Plaintiff served via certified mail; Article No. 7016 3010 0000 4308 4379)

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No. 17-2046C
(Filed March 12, 2018)
NOT FOR PUBLICATION

FILED
MAR

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r 2 2018

U.S, COURT OF

FEDEML CLAIMS

JERMAINE DUANE IRVIN-BEY, *
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Plaintif{
V.:

THE UNITED

:

STATES,

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Defendant.
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Jr ***

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ORDER

Plaintif{ Jermaine Duane Irvin-Bey, filed what was styled as an',Order for
Default Judgment" on February 15, 2018. Recognizing plaintiff 's pro se status, the
Court will treat this paper as a motion. In the paper, Mr. Irvin-Bey sought to order
this Court to issue him a "writ of deliverance" based upon the "undisputed facts,,of
his complaint. ECF No. 6. The government frled a brief response to this motion on
February 27 , 2018, urging this Court to dismiss Mr. Irvin-Bey's case for lack of
jurisdiction. ECF No. 8. Mister Irvin-Bey had until March 6, 2018, to file a reply to
the government's response, but no reply defending his motion was frled.
As is often the case with plaintilfs who proceed before this court pro se, it
appears that Mr. Irvin-Bey has misunderstood both the gounds for bringing a
motion for default judgment and the authority of this court to issue the relief he
requests. First, the grounds for requesting default judgment under Rule bb ofthe
Rules ofthe United States Court ofFederal Claims (RCFC) are not present. A
default judgment is appropriate when the defendant has failed to file a response to
the plaintiff 's complaint. See RCFC 55. Here, the government's deadline to
respond to Mr. Irvin-Bey's complaint was February 26, 2OI8. But Mr. Irvin-Bey
frled his motion on February 15, 2018-weII before the government's deadline.
Mister lrvin-Bey's argument seems to be that he gave the government a deadline of
thirty days to respond to the allegations in his complaint. See ECF No. 6; see olso

701,b 301,0 DUDD 'r306 tt3?9

Compl. at 5-6, ECF No. 1. Plaintif{ however, does not have the authority hold the
government to an alternative timeline and preclude the operation of this court's
rules. See RCFC 12(a)(1)(A) ("The United States must file an answer to a complaint
within 60 days after being served with the complaint."). The government met the
deadline under our rules, by timely filing a motion to dismiss this case on February
23,2076. See RCFC 12(aXa), @).

Further, Mr. Irvin-Bey's motion asks this Court to issue him a "writ of
deliverance." ECF No. 6. Mister Irvin-Bey's request is premised on the belief that
this court possesses broad authority to enjoin the unjust actions of others. Thrs
court, however, possesses no such powers. Instead, the court's jurisdiction is limited
to awarding monetary damages when called for by money-mandating constitutional
or statutory provisions. 28 U.S.C. $ 1491(a); see also Stanwych u. United States, 127
Fed. Cl. 308, 312 (Fed. Cl. 2016) (citing United States u. Mitchell,468 U.S. 206,2l!6_
17 (1983)). While the court can grant non-monetary remedies in certain specified
circumstances where the relief is incidental to the award of monetary damages, see
S 1a91(a)(2), we do not possess the broad equitable powers which would be
necessary to issue the plaintiff's requested relief. Hence, Mr. Irvin-Bey's motion for
a default judgment must be DENIED.
The Court also agrees with the government that Mr. Irvin-Bey's case must be
dismissed. Mister lrvin-Bey has failed to comply with this Court's order frled on
January 5, 2018, which directed plaintiff to either pay the 9400 filing fee or submit
an application to proceed in forma pauperis (IFP)-in accordance with 28 U.S.C.
$ 1915(b)-within thirty days. ECF No. 5. No payment or IFP application has been
received. Thus, Mr. Irvin-Bey's claims must be DISMISSED for failure to
prosecute under RCFC 41(b).

Finally, the Court notes that even if plaintiff had paid the frling fee or been
granted IFP status, his complaint still would have been dismissed under RCFC
12G) for failing to state a claim that falls within our jurisdiction. In the first place,
plaintiff failed to submit an opposition to the government's motion, which would be
another ground for dismissal under RCFC 41(b). Mister Irvin-Bey's complaint
appears to center around his alleged unlawful detention-a result of alleged human
rights abuses by certain named federal and state officials. See generally Compl.l

1 Further, to the extent that Mr. Irvin-Bey is trying to maintain claims against
individuals, this court has no jurisdiction to hear such claims. The united states is
the only proper defendant in an action before this court. Eden Isle Marina, Inc. u.
United States, 113 Fed. CL.372,464n.128 (2018). Even if an individual defendant
is an officer or agent ofthe united states, this court still cannot adjudicate a claim
against that individual. Stephenson u. United Srores, b8 Fed. Cl. 186, 190 (200A).

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Plaintiff alleges that "crimes" were committed against him, Iisting "fraud in the
factum, denationalization, RICO, treason, sedition and identity tlneft^" Id. at 1, fl

8.2

But as the government highlights in its motion to dismiss this case, Mr.
Irvin-Bey has failed to point to a money-mandating statute or constitutional
provision which would place his claims within our jurisdiction. ECF No. ?, at 4. To
the extent that his complaint alleges constitutional violations not involving moneymandating provisions, this Court has no jurisdiction to hear those claims. See
Wahakis u. United States, 2I5 Ct. Cl. 1018, 1018-19 (1978). As for any claims
involving crimes or torts committed against Mr. Irvin-Bey by government or prison
officials, the Tucker Act specifically withholds from this court's jurisdiction any
claims sounding in tort, see 28 U.S.C. $ 1491(a)(1), and this encompasses criminal
violations, Stanwych, 127 Fed. Cl. at 313-15.
Likewise, Mr. Irvin-Bey has failed to allege the existence ofa contract
between himself and the United States which would give this Court jurisdiction
under the Tucker Act. See id. Though he mentions a "security agreement" and
"common law copyright notice" in his complaint, see Compl. at 1, fl 8, he fails to
allege any ofthe necessary elements ofa contract with the United States. See City
of El Centro u. United States, 922 F.2d 816, 820 (Fed. Cir. 1990) (explaining that
stating a claim for a breach of an implied-in-fact contract by the United States
requires showing: "1) mutuality of intent to contract; 2) consideration; and, B) Iack
of ambiguity in offer and acceptance" along with showing that the government
representative had "actual authority to bind the government in contract"). As to
Mr. Irvin-Bey's requests to be released from prison, as already mentioned above, the
Court does not possess the broad equitable powers necessary to grant such relief.
See 28 U.S.C. $ 1a91(a). Additionally, the court is unable to review the correctness
of decisions by other federal courts-something that would be required in deciding
whether Mr. Irvin-Bey committed a crime. See Vereda, Ltda. u. United States,271
F.3d 1367, 1375 (Fed. Cir. 2001); Joshua u. United States, l7 F.Bd 978, 880 Ged.

Cir. 1994).

In short, plaintiff 's motion for default judgment is DENIED. In light of
plaintiff's failure to comply with this Court's January 5, 2018, order regarding IFp
status, this case is DISMISSED for failure to prosecute. The government's motion to
dismiss Mr. Irvin-Bey's complaint is therefore DEMED-AS-MOOT.a The Clerk shall
close the case.

2 This quotation has been changed from all caps for ease of reading.

r

On March 7 , 2OI8, the Clerk's Office received from Mr. Irvin-Bey a document
styled as a "Writ of Replevin." As explained above, this court's ability to grant
equitable remedies and extraordinary relief is extremely limited. The paper also
does not appear to comport with any provision ofthis court's rules. Given that this

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IT IS SO ORDERED.

case has been dismissed, the

return it to the plaintiff.

clerk is directed not to file the paper, but rather to

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