Nottage v. United States

• Decision Date: 28 November 2017
• Docket Number: No. 17-1549C,17-1549C
• Parties: WILL R. NOTTAGE, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

WILL R. NOTTAGE, Plaintiff, v. UNITED STATES, Defendant.

No. 17-1549C

United States Court of Federal Claims

November 28, 2017

ORIGINAL

Motion to Dismiss; In Forma Pauperis; Prison Litigation Reform Act; Takings

Will R. Nottage, Miami, FL, pro se.

David A. Levitt, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were Lisa L. Donahue, Assistant Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A. Readier, Acting Assistant Attorney General, Civil Division.

OPINION

HORN, J.

On October 17, 2017, pro se plaintiff Will R. Nottage, who is currently a prisoner at Metro West Detention Center in Miami, Florida, filed a hand-written complaint with this court in the above-captioned case.¹ Plaintiff separately filed an Application to Proceed In Forma Pauperis that same day.

In his complaint, plaintiff states this court has jurisdiction over his complaint because plaintiff's claims relate to "various agencies who [sic] are funded through federal agencies." Plaintiff alleges that the

joint venture of the U.S.CA [sic], Justice Administration Commission, IRS, President of Senate and the House of Representatives to name a few, which has supported the State of Florida to intrude on my estate and copywriting laws that imply-in-law [sic] contracts. Estate has nothing to do with actual land, but on IP/Intellectual Property basis, because it deals with one's nob-ility, clergy and commons. Agreements created in law without notifying the actual plaintiff or defendant citizens of a municipality of the contracts, terms and agreements that are transitioned.

Plaintiff defines nobility as "one's worthiness to be notified," clergy as "one's body [or] religion," and commons as "one's social status or one's right [to] participate actively in a social gathering." Although the handwriting following the above quoted portion of plaintiff's complaint is nearly illegible, plaintiff claims that "the statute [sic] that verify the facts of this truth are the following: s.733.37(2)(A), 27.52(1),(a)(5), (c), (d), (e)8, 2(O)1, (f), (g) & (i)3, s. 27.5303(1)(a) & (b) are a few statutes that prove this claim; which is an infringing of intellectual property done through law, and the benefit of selling due process services." Plaintiff's citations do not correspond with any federal statutes.²

Plaintiff also maintains that the government is operating an "intellect-ual scheme to municipalize the nation, or to transfer private ownership to municipal owner ship [sic]" and is attempting to "take over the ownership or management of [sic] (water, gas, electricity, stre-tcars [sic], farries [sic], etc.), in which annotating and copyrighting the laws, ent tled [sic] the government to have entitlement over." It is unclear whether plaintiff believes the federal government or the government of the State of Florida is administering the "intellectual scheme to municipalize the nation." Plaintiff's complaint seeks $3,000,000.00 in damages, and "Monetary, Non-Monetary Declaratory or injunctive Relief, and Punitive, but the most important is monetary; if you're unable to help me conce-rning the following two matters."

On October 31, 2017, defendant filed its opposition to plaintiff's Application to Proceed In Forma Pauperis and Motion to Dismiss Pursuant to the Prison Litigation Reform Act. In its motion, defendant argues plaintiff has filed a frivolous complaint, which must be dismissed pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915 (2012). Defendant maintains "the implication that [plaintiff] has a property interest in 'nobility, clergy, and commons,' an undefined concept, is fanciful." Moreover, defendant asserts that plaintiff's "claim that funding provided by the United States enabled the State of Florida to 'municipalize' his property and deprive him if [sic] is 'nobility, clergy, and commons' is fanciful on its face." Defendant further notes that plaintiff fails to identify anyproperty the State of Florida took from plaintiff, or identify any funding provided by the federal government to the State of Florida which caused harm to plaintiff.

DISCUSSION

The court recognizes that plaintiff is proceeding pro se, without the assistance of counsel. 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); Matthews v. United States, 750 F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. CI. 516, 524, aff'd, 603 F. App'x 947 (Fed. Cir.). cert. denied 135 S. Ct. 1909 (2015). "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."'" Lengen v. United States, 100 Fed. CI. 317, 328 (2011) (alterations in original) (quoting Scogin 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. CI. 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 Shelkofsky v. United States, 119 Fed. CI. 133, 139 (2014) ("[W]hile the court may excuse ambiguities in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures.'" (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995)); 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)).

In order to provide access to this court to those who cannot pay the filing fees mandated by Rule 77.1(c) (2017) of the Rules of the United States Court of Federal Claims, 28 U.S.C. § 1915 permits a court to allow a plaintiff to file a complaint without payment of fees or security, under specific circumstances. Section 1915(a)(1) states that:

Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits 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. Such affidavit shall state the nature ofthe action, defense or appeal and affiant's belief that the person is entitled to redress.

28 U.S.C. § 1915(a)(1). Therefore, the statute at 28 U.S.C. § 1915(a)(1) requires a person to submit an affidavit with a statement of all the applicant's assets, and that the affidavit state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. See id.

When enacting the in forma pauperis statute, 28 U.S.C. § 1915, Congress recognized that "'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)); see also McCullough v. United States, 76 Fed. CI. 1, 3 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed. Cir.), cert. denied, 552 U.S. 1050 (2007). Accordingly, Congress included subsection (e) in the in forma pauperis statute, which allows courts to dismiss lawsuits determined to be "frivolous or malicious," or when the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e). The United States Supreme Court has found that "a court may dismiss a claim as factually frivolous only if the facts alleged are 'clearly baseless' . . . a category encompassing allegations that are 'fanciful' . . . 'fantastic' . . . and 'delusional . . . .'" Denton v. Hernandez, 504 U.S. at 32-33 (internal citations omitted); see also McCullough v. United States, 76 Fed. CI. at 3; Schagene v. United States, 37 Fed. CI. 661, 663 (1997).

Courts, however, should exercise caution in dismissing a case under section 1915(e) because a claim that the court perceives as likely to be unsuccessful is not necessarily frivolous. See Denton v. Hernandez, 504 U.S. at 33. As stated by the United States Supreme Court, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id.

The standard in 28 U.S.C. § 1915(a)(1) for in forma pauperis eligibility 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...