Brickey v. United States

• Decision Date: 02 May 2014
• Docket Number: No. 13-346C,13-346C
• Parties: HERMAN LEON BRICKEY, Plaintiff, v. UNITED STATES, Defendant.
• Court: Court of Federal Claims

HERMAN LEON BRICKEY, Plaintiff, v. UNITED STATES, Defendant.

No. 13-346C

United States Court of Federal Claims

Filed: May 2, 2014

Pro Se Plaintiff; Motion to

Dismiss; Lack of Subject Matter

Jurisdiction; 28 U.S.C. § 1495;

28 U.S.C. § 2513; Torts; In

Forma Pauperis; 28 U.S.C. §

1915.

Herman Leon Brickey, San Antonio, TX, pro se.

Tanya B. Koenig, Trial Attorney, Commercial Litigation Breach, Civil Division, United States Department of Justice, Washington, D.C., for the defendant. With her were Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant Attorney General, Civil Division, Department of Justice.

ORDER

HORN. J.

Pro se plaintiff Herman Leon Brickey filed what he identified as an "ADMINISTRATIVE TORT CLAIM NO. TRT-SCR-2012-03822"¹ in the United States Court of Federal Claims, although he titled and referred to his complaint as filed "IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION." Plaintiff's two page, handwritten complaint is styled as a letter to a judge, albeit with the caption typical of a complaint. Based on the attachments included with plaintiff's complaint, it appears that on October 16, 2012, plaintiff filed a complaint in the United States District Court for the Western District of Texas, San Antonio Division, alleging that he was wrongfully imprisoned "FOR RELIGIOUS FREEDOM" in federal prisons in Oklahoma and Texas. Plaintiff states that he "WANT[S] $50,000.00 FOR PUNITIVE DAMAGES AND MENTAL ANGUISH I HAVE

SUFFERED THRU 45 YRS OF MENTAL ANGUISH, TURNED DOWN MANY TIMES FOR JOBS AS BEING A FELON !" Plaintiff adds:

MY TOTAL OWED ME IS $74,640.00. I AWAIT MY JUST PAYMENT FROM UNITED STATES GOVERNMENT FOR WRONGFUL IMPRISONMENT. I AM OWED RIGHTFUL PAYMENT, AND HOPE JUSTICE WILL BE GRANTED ME, SOMETHING ?

Plaintiff's October 16, 2012 complaint filed in the United States District Court for the Western District of Texas was dismissed "without prejudice for lack of jurisdiction." See Herman Leon Brickev v. United States, Case No. 5:12-CV-00991 (WD. Tex. Mar. 19, 2013).²

Plaintiff attached multiple documents to his complaint filed in this court. One such document is a May 17, 2013 letter addressed to "Your Honor," apparently intended for a judge of this court. In the May 17, 2013 letter plaintiff states that he "tried to get Justice and compensation for wrongful Imprisonment. Two Judges here in San Antonio Federal Court said they Lacked Jurisdiction, Judge Primomo stated in his Legal document, a Federal Claim Judge has jurisdiction." Plaintiff adds:

I should at least be paid minimum wages for my hours I have figured out and is Just for wrongful imprisonment.

Plaintiff continues:

I sent a letter to the Federal Court here to a Federal Claim Judge to Forward to him, I called several days, later to Clerks [sic] Office and they said they put my letter in the Files and closed my case and did not Forward my letter to a Federal Claim Judge, this is Not Justice. I am 68 yrs old 3-1-45 on Disability, I Hope you will pay me some compensation.

As another attachment to the complaint, plaintiff submitted a photocopy of a March 12, 2008 "Certificate of Pardon Issued to Herman Leon Brickey," pursuant to a Proclamation of Pardon, dated January 21, 1977, issued by President Jimmy Carter. The photocopy of the Certificate of Pardon submitted with plaintiff's complaint is cut offon the right hand margin, making certain words difficult to read. The photocopy of the Certificate of Pardon appears to grant Mr. Brickey a pardon from his conviction for violation of the Military Selective Service Act "irrespective of the dat [sic] of any offense against the United States of America . . . ."

Plaintiff's complaint in this court was filed without the requisite filing fee, or a motion to proceed in forma pauperis. Instead, Mr. Brickey attached the Application to Proceed in Forma Pauperis he had previously filed in the United States District Court for the Western District of Texas case. In plaintiff's October 16, 2012 Application to Proceed in Forma Pauperis submitted to the United States District Court for the Western District of Texas, plaintiff indicated that he had been unemployed since August 1999. He indicated his only sources of income were a social security supplement, social security disability and food stamps. He also claimed he did not have any cash on hand or money in a savings or checking account. He noted that he had a 1998 Mercury Marquis with 230,000 miles with an estimated value of $500.00. He stated on his Application that he "CAN BARELY AFFORD GAS FOR MY CAR, AS I NEED IT TO GO TO STORE AND DOCTORS OFFICE."

In response to plaintiff's complaint, defendant filed a motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2013), or, in the alternative, RCFC 12(b)(6), for failure to state a claim upon which relief can be granted. Defendant argues that plaintiff's complaint, which defendant construes as "one for compensation based upon unjust conviction and imprisonment pursuant to 28 U.S.C. § 1495 and 28 U.S.C. § 2513," does not comply with the statutory requirements specified in 28 U.S.C. § 2513,³ and, therefore, should be dismissed. To date, plaintiff has not responded to thegovernment's motion to dismiss, although plaintiff has been allotted more time than provided for under the court's Rules.

DISCUSSION

When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se plaintiffs are entitled to liberal construction of their pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977). "However, '"[t]here is no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled out in his [or her] pleading."'" Lenqen v. United States, 100 Fed. CI. 317, 328 (2011) (alterations in original) (quoting Scoqin v. United States, 33 Fed. CI. 285,293 (1995) (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see also Bussie v. United States, 96 Fed. C!. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. CI. 249, 253 (2007). "While a pro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. CI. 163, 165 (2010) (citing Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence."), reh'g and reh'g en banc denied (Fed. Cir. 2002)); see also Harris v. United States, 113 Fed. CI. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less stringent standard, such leniency 'with respect to mere formalities does not relieve the burden to meet jurisdictional requirements.'" (quoting Minehan v. United States, 75 Fed. CI. at 253)).

It is well established that '"subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.'" Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). "[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) ("Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it." (citing Arbauoh v. Y & H Corp., 546 U.S. at 514)); Special Devices, Inc. v. OEA. Inc., 269 F.3d 1340, 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W., Inc., 918 F.2d 160, 161 (Fed. Cir. 1990))); View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction, whether the parties raise the issue or not."). "The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment." Arbauah v. Y & H Corp., 546 U.S. at 506; see also Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh v. Y & H Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and Fanning. Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United States, 97 Fed. CI. 71, 76, appeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011). In fact, "[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where . . . neither party has raised this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134 F.3d 1481, 1485 (Fed. Cir.), reh'g denied and en banc suggestion declined (Fed. Cir. 1998)), reh'g and reh'g en banc denied (Fed. Cir. 2004), cert. granted in part, 546 U.S.975 (2005), cert. dismissed as improvidently grante...