Tucker v. United States

• Decision Date: 15 April 2019
• Docket Number: No. 18-1847C,18-1847C
• Parties: KAREN TUCKER, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

KAREN TUCKER, Plaintiff, v. UNITED STATES, Defendant.

No. 18-1847C

United States Court of Federal Claims

April 15, 2019

Pro Se Plaintiff; In Forma Pauperis; Subject-Matter Jurisdiction; Failure to State a Claim; Motion to Dismiss; Fourth Amendment; Sixth Amendment; Civil Rights; Torts; Breach of Contract.

Karen Tucker, pro se, Marlton, New Jersey.

Albert S. Iarossi, 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 Brach, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

OPINION

HORN. J

FINDINGS OF FACT

On November 21, 2018, pro se plaintiff Karen Tucker filed a fifty-one-page complaint,¹ in which she makes a plethora of allegations, many of which are difficult to follow. Among other allegations, plaintiff asserts that the defendant was liable for "illegal exaction of money; restitution, restoration to pretrial conditions, legal cost, fees, economic and earning capacity loss, wrongful conviction, deprivation of affective[²] counsel, life, liberty and property interest is deprivation of due process." According to her complaint,plaintiff seeks "monetary relief, compensatory damages, liquidated damages, treble damages and extraordinary relief." Also on November 21, 2018, plaintiff filed an Application to Proceed In Forma Pauperis, in which plaintiff states that she is "homeless and indigent relying on the kindness of family and friends for food and shelter."

In plaintiff's disjointed complaint, plaintiff alleges "Defendant(s) breach of Medicare Part B Provider contract failing to perform executory contract duty." Plaintiff alleges that she "entered into and agreed to a Medicare Part B Provider contract accepted by the Defendant(s) (exhibit 60) to provide medically necessary podiatry care to beneficiaries of the Medicare Part B Program for claim payments." The plaintiff also states the defendant's "breach" is a "fraudulent statement is fraud Rule 9 (b)" and that the "breach" is due to the "breaching party of their executory contracts duty legal obligation failing to pay claims or issue final determination letters that deprived Plaintiff from affective assistance of counsel." Additionally, plaintiff's complaint refers to a "plea of guilty," without identifying the specific criminal case, stating:

Plaintiff is innocent on Medicare Part B Provider Count 16 Zala Farley's October 21, 1996 $75-dollar claim plea and factual resume contract under Title 18 U.S.C. § 1347 March 5-10, 1999 judgment contract; fraud Rule 9(b), and did not abandon billing claim payments in the sum certain amount of $1,652,000 dollars doing what the terms of Defendant(s) Medicare Part B Provider contract required to do.

Plaintiff's complaint further asserts a "violation of colorable constitution due process of the 14th Amendment" and argues that her "life, liberty and property interest is deprivation of due process 42 U.S.C. § 1983." Additionally, plaintiff alleges a wide variety of other issues, including "substantive due process error, procedural due process error and violation of the constitution in clear harmful error of law was overlooked by the District Court in fundamental error."

In plaintiff's complaint, Ms. Tucker alleges "violation of her Sixth Amendment right to affective assistance of counsel, is of the most fundamental error character." According to plaintiff's complaint:

[T]he Defendant(s) suppressed and fabricated evidence, failed to disclose Rule 37 exculpatory material evidence that proved Plaintiff(s) innocence prior to offering and Plaintiff entering into the count 16 plea and factual resume in violation of Brady vs Maryland law that deprived Plaintiff from affective counsel that resulted Plaintiff receiving ineffective counsel that was not well informed and incompetent below the standards under Strickland that ill-advised Plaintiff to make a uniformed decision without knowledge and understanding entering into a plea of guilty when Karen Tucker was unknowingly innocent of count 16 plea and factual resume that does not state a crime or felony of law was committed under Title 18 U.S.C. § 1347 March 5-10, 1999 judgment based on vague laws contrary to law in clearfundamental error and substantive due process error was in clear harmful error of law entered for judgment.

Plaintiff states that her counsel was ineffective because her counsel allegedly "took the opinion of US Prosecutor Leonard Senerote that Plaintiff may or may not be guilty" and offered "testimony for the Defendant(s) as witness against Plaintiff for the US Prosecutor Peter Winn." Plaintiff argues that she was "not issued by Defendant(s) final determination letters nor paid claim payments in the sum certain amount of $1,652,000 dollars dates of services of medically necessary podiatry care provided from January 1995- February 1998 ordered and signed in writing by referring attending physicians with consent of patients required to do." Plaintiff alleges that she "was wrongfully convicted on inadvertent collateral ground for civil and criminal complaint is a claim for breach of contract and simultaneous breach of contract and fraud Rule 9(b)."

Under a separate section in plaintiff's complaint titled "Contracts Dispute Act, 41 U.S.C. § 7101 et seq. (CDA)," plaintiff states that she "gave notice to Defendant(s) that it owed claims in the total amount of $151,198.00 dollars." Plaintiff asserts that the defendant is "liable" for:

[C]laim payments in the sum certain amount of $1,652,000 dollars, legal fees, cost suit in the amount of $260,000 dollars, Restitution in the amount of $29,000 dollars, economic and earning capacity loss that exceeds $75,000 dollars from January 1995-November 2018 present and Restoration to pre-trial conditions, monetary damages, compensatory damages, liquidated damages, treble damages, relief and extraordinary relief for dismissal of March 5-10, 1999 judgment contract.

In plaintiff's November 21, 2018 complaint in this court, in a section of plaintiff's complaint titled "Where As Relief Sought," plaintiff requests:

I am the Plaintiff that wants a demands for $1,652,000 dollars monetary damages, relief and extraordinary relief and any further alternative relief the Court deems both just and proper. Plaintiff wants to move, motion and petition the Federal Claims Court for:

0. Motion to leave to file Informa pauperis

1. Dismiss COUNT 16 under Title 18 U.S.C. § 1347 March 5-10, 1999 and July 11, 2018 for lack of waiver of sovereign immunity judgment contract pursuant extraordinary relief Rule 60 (b)(1)(2)(3)(4)(5)(6)(2)(d)(1)(3)(e) for any reason to achieve justice

2. Settlement for monetary payments under 28 U.S. Code § 2414

3. Summary judgment pursuant Rule 56

4. Restore Plaintiff to pre-trial conditions

5. Compensatory damages

6. Treble damages

7. Liquidated damages8. Economic and earning capacity loss from May 6, 1996 -November 2018 present

9. Legal cost, cost of suit, fees, interest $260,000 dollars

10. Restitution $29,000 dollars

11. Remand Rule 12.1 or transfer or transfer 28 U.S.C. § 1631 and re-open Rule 59 (e) and Rule 60 (b) complaint in District Court for discovery, interrogatories, oral argument, evidentiary hearing and jury trial for all triable matters;

12. Demand for jury trial heard on the merits Fed. Rules of Civ. P. 39 local New Jersey Court Rules 1:8-2(b) and 4:35-1(a) to achieve justice.

13. Oral Argument YES Evidentiary Hearing Yes

14. JURY TRIAL DEMAND YES

Plaintiff alleges that her complaint "invoke[s] the jurisdiction" of this court and cites a series of statutes, including:

A. Equitable tolling 4(a)(4)(vi) Statutes of Limitations

B. United States as Defendant(s) 28 U.S.Code §1346; 28 U.S.Code §1402, 28 U.S.C.1345 and 1348

C. Court of Federal Claims under 28 U.S.C. § 1292(d)(4)(A)

D. subject matter jurisdiction under The Tucker Act, 28 U.S.C. § 1491 (a)(2),

E. Tucker Act, 28 U.S.C. § 1491; Tucker Act, 28 U.S.C. § 1491(a)(1), Little Tucker Act," 28 U.S.C. § 1346; The Little Tucker Act, 28 U.S.C. § 1346(a)(2)

F. Contract Disputes Act, 41 U.S.C. § 7101 (CDA)

G. The Federal Tort Claims Act (August 2, 1946, ch.646, Title IV, 60 Stat. 812, "28 U.S.C. Pt.Vl Ch.171" and 28 U.S.C. § 1346(b)) ("FTCA") is a 1946 federal statute

H. 28 U.S. Code § 2414 - Payment of judgments and compromise settlements

I. Rule 56 Summary Judgement

J. Transfer to cure want of jurisdiction 28 U.S.C. § 1631.

K. 375 False Claims Act Action filed by private individuals alleging fraud against the U.S. Government under 31 U.S.C. § 3729.

L. Equitable tolling 4(a)(4)(vi)

M. Nature of Suit 124 Contract - Medicare Act

Plaintiff asserts that the above-captioned case is not directly related to any pending or previously filed cases in the United States Court of Federal Claims. Plaintiff's complaint, however, does appear to discuss other litigation involving plaintiff in proceedings not before this court, alleging:

1. "District Court Stickney final judgments states the orders written and signed by Dr. Kathleen Martin were valid orders for treatment but not for claim payment of Medicare Part B Provider count 16." Plaintiff argues that there was a"substantive due process error" and "deprivation of constitution Due Process 42 U.S.C. § 1983." (capitalization in original).

2. Plaintiff alleges "Defendant(s) Administrative Law Judge Barrett" found that "[p]laintiff's claim was payable and was not a crime or felony violation of Health Insurance Portability and Accountability Act of 1996 neither a breach of the Medicare Part B Provider contract was upheld by Defendant(s) agent Judge Gipe, Medicare Appeals Board." Plaintiff, however, appealed Judge Barrett's decision, which the Medicare Appeals Council (MAC) of the Department of Health and Human Services Departmental Appeals Board denied for review, because Judge Barrett found that the plaintiff had "failed to provide credible

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