Farnsworth v. United States
| Decision Date | 04 September 2012 |
| Docket Number | No. 12-259C,12-259C |
| Parties | CHARLES V . FARNSWORTH, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Pro Se Plaintiff; In Forma
Pauperis Application; 28
U.S.C. § 1915; Motion to
Dismiss; Lack of Subject
Matter Jurisdiction; Statute of Limitations
Charles V. Farnsworth, Walla Walla, WA, pro se.
Christopher L. Krafchek, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for the defendant. With him were Jeanne E. Davidson, Director, Commercial Litigation Branch, and Stuart F. Delery, Acting Assistant Attorney General, Civil Division.
On April 19, 2012, pro se plaintiff, Charles V. Farnsworth, filed a complaint in the United States Court of Federal Claims against the United States1 seeking veteran's medical and disability benefits following his service in the United States Marine Corps, along with an Application to Proceed In Forma Pauperis. He amended his complaint on May 10, 2012, seeking additional relief in the form of court costs and attorney's fees, despite the fact that he had filed his complaint pro se. In addition, on June 22, 2012, plaintiff filed a motion for a temporary restraining order, requesting law library access and adequate legal supplies in order to further pursue his claims, and, on July 30, 2012, filed a motion, once again to amend his complaint. The most recent amendment requests that the court order him transferred from the Washington State Penitentiary toa secure Veteran's Administration (VA) hospital, but otherwise restates the issues raised in his earlier complaints and in his response to defendant's motion to dismiss.2
Plaintiff states that he was a member of the United States Marine Corps from June 26, 1967 to November 18, 1968. He alleges that he was deployed to DaNang, Vietnam in November of 1967, where he served approximately ninety days before sustaining injuries that left him unconscious for three weeks. Plaintiff received an undesirable discharge from the Marine Corps on November 18, 1968. He is currently a prisoner at the Washington State Penitentiary in Walla Walla, Washington.
Since his discharge, plaintiff alleges that he has made "continuous requests" for his military records, which he believes would enable him to collect medical and disability benefits based on his time in the military. Plaintiff claims that in approximately 1973, in response to his inquiries, the National Personnel Records Center notified him that his records were destroyed by a fire. In a letter dated April 13, 2006, however, the National Personnel Records Center informed plaintiff that his records had not been destroyed, but that they had been "loaned out on a prior request" and never returned.
Plaintiff appears to have sent and received a regular flow of correspondence from the National Personnel Records Center, including Certifications of Military Service. The documents presented to the court in a poorly organized appendix to the motion to dismiss provided by defendant appear to indicate that the National Personnel Records Center sent plaintiff a notice of his missing records on October 2, 1987. Because the records were missing, however, this notice also stated that, instead, a Certification of Military Service was being furnished, which plaintiff could use as a "verification of military service and . . . for any official purpose." Plaintiff acknowledged receipt of the October 2, 1987 notice from the National Personnel Records Center in a letter dated May 15, 1988, but the letter characterizes the additional documentation he received as "a copy of my discharge." A letter from the National Personnel Records Center to plaintiff, dated June 29, 1988, states that plaintiff received a Certification of Military Service along with the October 2, 1987 notice. The only two Certifications of Military Service that appear in the record, however, were issued on June 30, 1988 and April 11, 2006.
Plaintiff alleges that defendant breached an express or implied contract when it "violated its duty . . . to maintain copies of his military records, or at least a record of the agency or person who checked out the records." Plaintiff claims that he "has been denied benefits for severe PTSD [post-traumatic stress disorder] related to his tour of duty in Vietnam," as a result of his inability to obtain records of his service in order to document he had served active duty for at least 180 days.
On July 18, 2012, defendant filed a perfunctory motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC) (2012). Defendant argued that plaintiff's complaint should be dismissed because this court lacks subject matter jurisdiction over claims based on veteran's benefits. In the alternative, defendant concluded that plaintiff's claims "are barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501," because they accrued in 1973 when the National Personnel Records Center allegedly informed plaintiff that his records were destroyed. Although plaintiff's complaint, in fact, raises issues that are outside this court's jurisdiction, each plaintiff is entitled to serious consideration by both the court and the United States as defendant.
Plaintiff asserts that defendant violated an "express or implied contract made at the time of enlistment, to maintain copies of his military records," which he asserts violates a "substantive right" under the Contracts Clause of the United States Constitution and grants this court jurisdiction under the Tucker Act, 28 U.S.C. § 1491(a)(1) (Supp. V 2011). Plaintiff argues that the statute of limitations does not apply because his claims did not accrue until "about April 18, 2006," when he discovered a "breach of contract through the government's negligence" upon receiving notice that his records were lost, rather than destroyed. Plaintiff's response to defendant's motion to dismiss also indicates, for the first time, that, "plaintiff does not seek a substantive right of recovery against the United States for monetary damages, rather he seeks the court's assistance in allowing the Veteran's Administration [sic] assess his medical disability to acquire monetary relief if the VA approves it." Plaintiff also states that he is "requesting the court to order the VA to proceed as if documentation of 180-days of active duty had been provided," which he believes would entitle him to receive medical and disability benefits. Plaintiff's further asserts that his claim "is not based upon veteran's pensions or benefits, but is requesting assistance in a just determination from the VA due to Governmental negligence."
As an initial matter, plaintiff may not proceed in forma pauperis in this case because at least three other federal courts have dismissed previous causes of action filed by this plaintiff for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g) (2006). In addition, plaintiff has failed to include the required prison trust fund account statement in his Application to Proceed In Forma Pauperis. See 28 U.S.C. § 1915(a)(2). In order to provide access to this court to those who cannot pay the filing fees mandated by RCFC 77.1(c), the statute at 28 U.S.C. § 1915 permits a court to allow plaintiffs to file a complaint without payment of fees or security, under specific circumstances. The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperiseligibility is "unable to pay such fees or give security therefor." Determination of what constitutes "unable to pay" or unable to "give security therefor," and therefore, whether to allow a plaintiff to proceed in forma pauperis is left to the discretion of the presiding judge, based on the information submitted by the plaintiff or plaintiffs. See, e.g., Rowland v. Cal. Men's Colony, 506 U.S. 194, 217-18 (1993); Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011).
The statute denies in forma pauperis status to repetitive plaintiffs, as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g); see also Dudley v. United States, 61 Fed. Cl. 685, 686 (2004); McLean v. United States, 566 F.3d 391, 394 (4th Cir. 2009); Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009).
Although not addressed by defendant, the court notes that in other cases filed by Mr. Farnsworth in federal courts, plaintiff has been barred from proceeding in forma pauperis under Section 1915(g).3 See, e.g., Farnsworth v. Palmquist, 2008 WL 901810,at *2; Farnsworth v. Pierce Cnty. Jail, 2007 WL 1747169, at *2. As the record does not indicate or suggest that petitioner is "under imminent danger of serious physical injury," pursuant to 28 U.S.C. § 1915(g) plaintiff should likewise be barred from proceeding in forma pauperis in this court. See 28 U.S.C. § 1915(g).
Even if Section 1915(g) did not bar plaintiff from proceeding in forma pauperis, plaintiff's Application to Proceed In Forma Pauperis must be denied for failure to comply with the statutory requirements. In order to proceed in forma pauperis, a prospective plaintiff must submit "an affidavit that includes a statement of all assets such prisoner possesses [and] that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The affidavit must further "state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress." Id. In addition, a prisoner must submit "a certified copy of the trust...
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