WALLACE-MAYES v. USA

Filing 14

Order of Dismissal; Granting 7 Motion to Dismiss - Rule 12(b)(1) The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (ew) Service on parties made.

r Because plaintiffs claim sounds in tort and is outside of this court's
jurisdiction, it is unnecessary to reach the government's arguments regarding
the limitations period and failure to state a claim.

Amendment takings claim is within this court's jurisdiction, whereas a tort
claim is not.

In her complaint, plaintiff "asserts the USACE was negligent in the
performance of its duty" and that "this negligence caused and causes injury
and without mitigation will still cause" property damage through erosion and
changes in the riverbed. Compl. 2. She alleges that the USACE ignored
clean water Act, 33 u.s.c. $g 1251-1387 (2012), violations and did not
seek to correct oonew water inflows into the pomme de Terre River
Hermitage, Hickory Co., MO, for over 8 years (to date)[.],, Compl. l. These
violations and changes in water levels allegedly have caused permanent harm
to her property.
Plaintiff filed a tort claim with the United States Army Tort Claims
Division pursuant to the Federal rorr claims Act, 28 u.s.c. $$ 267 r-2690
(2012), regarding the property damage and emotional distress. The Tort
claims Division denied plaintiff s claim on September 21,2017. compl. Ex.
B-4. The Tort Claims Division advised plaintiff that she could appeal by
filing suit in an appropriate United States district court. Id. Although
plaintiff s complaint here is titled "Negligence, Injury and Taking pleading,"
plaintiff consistently refers to the USACE's negligence and her personal
injury. Plaintiff states on the last page of her complaint, "This pleading does
not include in any part the 'takings' claim I have . . . .', Compl. 4.
Defendant argues that plaintiff concedes her only claim is a tort claim.
In her response to the motion to dismiss, plaintiff provides more context for
her claim but repeatedly states that her claim involves negligence by USACE
and is not a takings claim. She states that this court "has the prevailing power
to declare law for negligence, breach of duty, mismanagement, abuse . . .
The 5th Amendment Takings Without Compensation has its own avenue of
submitting claims and mine is still being considered[,] which the defendant
seems to be intermingling in this tort claim." Resp. at 3. She explains that
she mentioned her "takings claim" in her complaint as an example that,ol had
addressed takings without compensation through the proper channel and not
of this litigation of injury from and due to the negligence and abuse by the
usACE." Id. at2. she asks, "[w]hy is the defendant referring to the takings
claim as if it were part of this action?" Id. at 3 .

Ms. wallace-Mayes filed her complaint as apro se plaintiff. As such,
we liberally construe her complaint, but our lenient reading does not allow
the complaint to skirt around this court's jurisdictional limits. See Henke v.
2

United States,60 F.3d 795, 799 (Fed. Cir. 1995). Plaintiff alleges negligence
by the USACE. Negligence is a classic tort claim over which this court does
not have jurisdiction. She states that she is currently addressing any claim
that she believes to be a takings claim with the USACE, and the United States
Army Tort Claims Division properly advised her that she could file an appeal
of her tort claim in an appropriate United States district court. 28 C.F'R' $
l4.g (2018). Her claim simply does not fall within this court's jurisdiction.
Because the complaint does not allege a claim over which this court
to
has jurisdiction, it must be dismissed. Accordingly, defendant's motion
dismiss is granted. The Clerk is directed to dismiss the complaint without
prejudice and to enter judgment accordingly. No costs'

Senior Judge