Pleasant-Bey v. United States

• Decision Date: 26 July 2011
• Docket Number: No. 11-258 C,11-258 C
• Parties: BOAZ PLEASANT-BEY, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

BOAZ PLEASANT-BEY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 11-258 C

United States Court of Federal Claims

Filed: July 26, 2011

Motion to Dismiss; In Forma Pauperis; Prisoner; Appointment of Counsel; Lack of Jurisdiction: Torts, 13 th Amendment, 14th Amendment, civil rights, non-monetary relief; Transfer Inappropriate

Boaz Pleasant-Bey, Whiteville, TN, Plaintiff, pro se

Daniel G. Kim, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for Defendant

OPINION AND ORDER

DAMICH, Judge

Before the court is "Defendant's Motion to Dismiss Pro Se Complaint for Lack of Subject Matter Jurisdiction" ("Def.'s Mot.").

In his Complaint, Boaz Pleasant-Bey ("Plaintiff), presently incarcerated at the Hardeman County Correctional Facility in Whiteville, Tennessee, alleges that he is being racially discriminated against by "the prejudice from Antiquity ensued [sic] in the racially offensive language of the U.S. [Constitution] which degrades his entire race of people and does not include them in the marked language of the words 'People of the U.S.' and 'Citizens' as used in the U.S. [Constitution]." Compl. at 1. Plaintiff also alleges that he is being "deprived of his birthright to proclaim the sovereignty of his Native African Ancestory [sic]." Id. at 4. In particular, he objects that his birth certificate (and somehow his Social Security card) imposes a "slave name" and identifies him as "Black," whereas he seeks identification as a "Sovereign Native African, who is indigenous to the U.S. of A." Id. at 5.

In his "Demand for Relief," Plaintiff seeks damages of $50 million in "100% pure gold." He also asks that he be exempted from all taxes within the jurisdiction of the United States, that Congress amend the U.S. Constitution to incorporate "all Indigenous Native Africans (WhoseAncestors Were Sold As Slaves In The United States of America)" within the meaning of the phrases "People of the United States" and "Citizens" as used throughout the Constitution, and that Congress "create and establish legitimate means" for Plaintiff to be identified, respected and nationally recognized by the United States as a "Sovereign Indigenous Native African." Id. at 5.

In addition to his Complaint, Plaintiff has moved the court for leave to proceed in forma pauperis ("IFP") and for the court to appoint counsel to represent him.

For the reasons explained below, the court GRANTS Plaintiff’s "Motion For Leave To Proceed In Forma Pauperis," DENIES his motion for the appointment of counsel, and GRANTS Defendant's motion to dismiss.

I. Standard of Review

Parties acting pro se are generally held to "less stringent standards" than professional lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (requiring that allegations contained in a pro se complaint be held to "less stringent standards than formal pleadings drafted by lawyers"); Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) ("[T]he pleadings of pro se litigants should be held to a lesser standard than those drafted by professional lawyers . . . . ").

However, "[w]hile a court should be receptive to pro se plaintiffs and assist them, justice is ill-served when a jurist crosses the line from finder of fact to advocate." Demes v. United States, 52 Fed. Cl. 365, 369 (2002). Moreover, "the leniency afforded to a pro se litigant with respect to mere formalities does not relieve the burden to meet jurisdictional requirements." Minehan v. United States, 75 Fed. Cl. 249, 253 (2007) (citing Kelley v. Sec 'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987)).

II. Motion to Proceed In Forma Pauperis

The United States Court of Federal Claims is authorized, pursuant to 28 U.S.C. § 1915(a)(1), to allow an indigent plaintiff to file a complaint without the payment of a filing fee, i.e., in formal pauperis. See 28 U.S.C. § 2503(d); see also Washington v. United States, 93 Fed. Cl. 706, 708 (2010); Hayes v. United States, 71 Fed. Cl. 366, 368 (2006). In order to proceed in forma pauperis, § 1915(a)(1) requires an applicant to file an affidavit listing the applicant's assets, declaring he is unable to pay such fee or to provide security therefor, and stating the nature of the action, defense, or appeal and the affiant's belief that he is entitled to redress. If the applicant is a prisoner, § 1915(a)(2) requires that the applicant also submit a certified copy of the applicant's trust fund account statement (or institutional equivalent) for the six-month period immediately preceding the filing of the action. The determination whether a plaintiff has met the requirements for proceeding in forma pauperis is left to the discretion of the presiding judge. Waltner v. United States, 93 Fed. Cl. 139, 141 (2010). It is not necessary that the plaintiff be "absolutely destitute," but rather that the payment of the filing fee would constitute a "serious hardship." Hayes, 71 Fed. Cl. at 369.

Here, Plaintiff has submitted a certificate from the Department of Correction, West Tennessee State Penitentiary, indicating that as of March 2011 his account there had a balance of $0.00 and that his average daily balance for the previous 21 days was $0.00. A "Resident Account Statement" from Shelby County (TN) Jail indicates he had a balance from January 2010 to August 2010 of $0.00. A "Receivable Charge Receipt" from Shelby County Jail, dated January 13, 2011, indicates he had a "Commissary Balance" of $0.00 and a "Debt Balance" of $896.46. Additionally, the Supreme Court of Tennessee has observed that Plaintiff appears to be indigent. State v. Pleasant-Bey, No. W2009-01951-SC-S10-CD, 2009 Tenn. LEXIS 866 (Dec. 21, 2009).

Although he has not submitted the IFP application form provided by the Court of Federal Claims, the court finds, based on his complaint and motion, that Plaintiff has submitted sufficient information pertaining to his lack of assets and his inability to pay the fee. A prisoner granted IFP status with respect to bringing the action initially is nevertheless "required to pay the full amount of a filing fee" over time. 28 U.S.C. § 1915(b)(1). The court is required to assess and collect, when funds are available, an initial partial filing fee of 20% of the average monthly deposits to the prisoner's accounts or the average monthly balance in his account for the 6-month period preceding the filing of the complaint. Id.; see Telemaque v. United States, 2011 WL 2582201 at *5 (Fed. Cl. June 29, 2011). Thereafter, the agency or institution with custody over the prisoner is charged with the responsibility to make monthly payments from his account (of 20% of his preceding month's income, when the amount in the account exceeds $10) until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

Plaintiff’s "Motion For Leave to Proceed In Forma Pauperis'" is GRANTED, but he is hereby ordered to make the various payments over time in satisfaction of the filing fee in full as noted above.

III. Motion for Appointment of Counsel

Plaintiff’s motion for appointment of an attorney to represent him cites his need to obtain "relevant exculpatory evidence" in his "cause." Pursuant to 28 U.S.C. § 1915(e)(1), this court has the authority to "request an attorney to represent any person unable to afford counsel." See Matthews v. United States, WL 976729 (Fed. Cl. 2011) (unpublished).

As a general rule, an indigent's right to appointed counsel is recognized "only where the litigant may lose his physical liberty if he loses the litigation," such as in a criminal action. Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 25 (1981). In a civil matter, the court's involvement in securing counsel is appropriate only in "extraordinary circumstances," such as where the plaintiff might lose custody of a child or risk civil commitment himself. See Washington v. United States, 93 Fed. Cl. 706, 708 (2010) (citing, e.g., Lassiter, 452 U.S. at 3032; Vitek v. Jones, 445 U.S. 480, 486-97 (1980) (plurality)).

Plaintiff's "cause" here does not constitute such an extraordinary circumstance and the court accordingly DENIES Plaintiff’s motion.

IV. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Complaint

Whether a court possesses jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Subject-matter jurisdiction may be challenged at any time by the parties or by the court sua sponte" Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006); Fanning, Phillips & Molnar v. West, 160 F.3d 717. 720 (Fed. Cir. 1998); Booth v. United States, 990 F.2d 617, 620 (Fed. Cir. 1993). While pro se parties are held to "less stringent standards," Haines, 404 U.S. at 520, "a court may not similarly take a liberal view of . . . jurisdictional requirements] and set a different rule for pro se litigants only." Kelley, 812 F.2d at 1380 (emphasis added).

This court's jurisdiction is prescribed by the Tucker Act, 28 U.S.C. § 1491 (2006). Under the Tucker Act, this court's jurisdiction is limited to monetary claims "against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." Id. § 1491 (a)(1) (emphasis added). The Tucker Act is only a jurisdictional statute and does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976) ("[T]he [Tucker] Act merely confers jurisdiction upon [this Court] whenever the substantive right exists."). In other words, not every claim involving the United States Constitution or an Act of Congress is recognizable under the Tucker Act. Rather, a Plaintiff’s claim must be for money...