Washam v. United States

ORI#EF$At llntbt @nftr! $ltilen @ourt of fplersl @luims No. 16-653C Filed November 8,2016 NOT FOR PUBLICATION FILED Nov - I 2016 THOMAS WASHAM, U.S. COURT OF FEDERAL CLAIMS Plaintiff, Pro Se; Rule l2(bXl), Subject- Matter Jurisdiction; 28 U.S.C. $ 1495; U.S.C. $ 2513, Unjust Conviction; 28 THE UNITED STATES, U.S.C. $ l49l(a); In Forma Pauperis.

Defendant.

Thomas llasham, Dallas, PA, plaintiffpro se.

John S. Groat, Trial Attomey, Elizabeth Hosford, Assistant Director, Robert E.

Kirschman,,./r., Director and Benjamin C. Mizer, Principal Deputy Assistant Attomey General, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER GRIGGSBY. Judee I. INTRODUCTION Plaintiffpro se, Thomas Washam, brought this action seeking review of the decisions of the United States District Court for the Middle District of Pennsylvania to dismiss and/or transfer two cases that he filed challenging his state criminal conviction and sentence to incarceration.

Compl. at l The govemment has moved to dismiss plaintifPs complaint for lack of subject- matter jurisdiction, pusuant to Rule l2(b)(l) ofthe Rules of the United States Court of Federal Claims ("RCFC"). In addition, plaintiff has filed motions for summary judgment, for judgment on the pleadings and forjudgment, pursuant to RCFC 56, 12(c) and 54(b), respectively. Plaintiff has also moved to proceed in this matter informa paupens. For the reasons set forth below, the Court: (l) GRANTS the govemment's motion to dismiss; (2) DENIES plaintifPs motion for summary judgment, motion for judgment on the pleadings and motion for judgment as moot; and (3) GRANTS plaintiff s motion to proceed informa pauperis.

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I FACTUAL AI\D PROCEDURAL BACKGROUND' A. Factual Background Plaintiff pro se, Thomas Washam, commenced this action on May 3 1, 2016. See generally Compl. Plaintiff is cunently incarcerated at the State Conectional Institution located in Dallas, Pennsylvania in connection with his conviction for first degree murder under Pennsylvania state law.2 Pl. Mot. to Proceed 1n Forma Pauperis at 2-3; see 28 U.S.C. $ 1915(a); see also28 U.S.C. $ 2503(d).

Plaintiff s complaint is difficult to follow. ,See generally Compl. But, it appears that the gravamen of plaintiff s complaint is a challenge of the decisions ofthe United States District Court for the Middle District of Pennsylvania to dismiss and/or transfer two cases that plaintiff previously filed in that court challenging his conviction and sentence to incarceration. See generally Compl.

On December 14,2015, plaintiff filed a civil case in in the United States District Court for the Middle District of Pennsylvania challenging his conviction and sentence to incarceration.

See generally complaint, Ilasham v. Mahallay, et al., 1:15-cv-2397 (M.D. Pa. Dec. 14,2015).

On January 20,2016, the district court dismissed that case with prejudice. Order, I4/asham v. Mahallay, et ql.,l:15-cv-2397 (M.D. Pa. Jan.20,2016). On April 4, 2016, plaintiff subsequently filed a petition for a writ ofhabeas corpus in the United States Dishict Court for the Middle District of Pennsylvania raising similar claims. Petition for Writ of Habeas Corpus, ll/asham v. Mahallay, l:16-cv-564 (M.D. Pa. Apr. 4, 2016). On May 9,2016, the district court translerred that case to the United States District Court for the Eastem District ofPennsylvania,

I The facts recited in this Memorandum Opinion and Order are taken from plaintiffs complaint and the exhibits attached thereto ("Compl.") and the govemment's motion to dismiss ("Def. Mot."). Except where otherwise noted, the facts recited herein are undisputed.

ln 1987, plaintiff was convicted offirst degree murder, possession ofan instrument of crime and possession of a firearm without a license in the State of Pennsylvania. Washam v. Delaware County Court of Common Pleas, et al.,No.95-cv-5697,2006 U.S. Dist. LEXIS 88154, *2 (E.D. Pa. Dec. 5, 2006). Subsequently, plaintiffwas sentenced to life in prison. Def. Mot. at 1; see also Memorandum, l{asham v. Proud,No. l3-0606 (8.D. Pa. June 10, 2013) at p.2. On March 9, 1990, the Pennsylvania Superior Court affirmed the judgment of sentence. .fd. where the case is pending. Order,lVasham v. Mahallay, et al.,l:16-cv-564 (M.D. Pa. May 9, 2016); l(asham v. Mahallay,2:16-cv-2250 (8.D. Pa. May 9, 2016).

In the complaint in this matter, plaintiff alleges that "the transfer ofthe case ofThomas Washam v. Lawrence Mahallay in the United States District Court [for] the Middle District of Pennsylvania Civil Action No. 1 : l6-cv-0564, dated May 91h,2016 is without power or authority and cannot be enlarged by Congress." Compl. at 2. Plaintiff also attaches as an exhibit to the complaint a copy of the United States District Court for the Middle District of Pennsylvania's Order dated May 9,2016, transferring this case to the Eastern District of Pennsylvania. Compl. at Ex I . In addition, plaintiff attaches as an exhibit to the complaint a copy of the United States District Court for the Middle District of Pennsylvania's Order dated January 20,2016, dismissing his other litigation before that court with prejudice. Id. at Exh. L

Lastly, plaintiff names Lawrence Mahallay, the warden for the State Correctional lnstitution; United States District ChiefJudge Christopher C. Conner; and Andrew S. Kovach, Esq., district attomey of Delaware County Court of Common Pleas as defendants in this action.

1d. at 1 . As relief, plaintiff seeks to recover $ 1,000,000.00 in damages from the United States.

Id. at 7.

B. ProceduralBackground Plaintiff filed the complaint in this matter on May 31, 2016. See generaily Compl. On June 24, 2016, plaintiff filed a motion for leave to proceed in forma pauperis. See generally Pl.

Mot. to Proceed In Forma Pauperus. On July 6,2016, plaintiff filed a motion for summary judgment, pursuant to RCFC 56. See generally PL Mot. for Sum. Judg.

The government did not file a timely response to plaintiff s complaint. And so, on August 8, 2016, the Court issued an order directing the government to show cause, on or before August 12, 2016, as to why a response was not timely filed pursuant to RCFC l2(a)(l). See generally Order to Show Cause. On August 10,2016, the govemment filed amotion to dismiss the complaint for lack of subject-matter jurisdiction, pursuant to RCFC 12(bX I ). See generally Def. Mot. On August 12,2016, the govemment filed a response to the Court's Order to Show Cause. See generally Def. Resp. to Order to Show Cause.

On August 22,2016, plaintiff filed a response to the govemment's motion to dismiss.

See generally PL Resp. On August 30,2016, plaintiff filed a motion for judgment on the pleadings. See generally Pl. Mot. Jmt. on Pl. On September 13,2016, plaintiff filed a supplemental response to the govemment's motion to dismiss. See generally PL Suppl. Resp.

Lastly, on October 26,2016, plaintiff filed a motion forjudgment, pursuant to RCFC 54(b). See generally Pl. Mot. Jmt.

III. STANDARDSOFREVIEW A. Pro Se Litigants Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the Court applies the pleading requirements leniently. Beriont v. GTE Labs., lnc.,535 F.App'x919, 925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp.,501 F.3d 1354, 1356 (Fed. Cir. 2007)).

When determining whether a complaint filed by apro se plaintiff is sufficient to survive a motion to dismiss, this Court affords more leeway under the rules topro se plaintiffs than to plaintiffs who are represented by counsel. See Haines v. Kerner,404 U.S. 519,520 (1972) (holding rhat pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal pleadings drafted by lawyers."); Matthews v. United States,750 F.3d 1320, 1322(Fed. Cir. 2014). But, there "is no duty on the part ofthe trial court to create a claim which [the plaintiffl hasnotspelledoutinhispleading;'Lengenv.UnitedStates,100Fed.Cl.3i7, (2011) (brackets existing; citations omitted). And so, while "apro se plaintiff is held to a less stringent standard than that of a plaintiff represented by an attomey, . . . lhe pro se plaintiff, nevertheless, bears the burden ofestablishing the Court's jurisdiction by a preponderance of the evidence." Riles v. UnitedStares,93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)). Given this, the Court may excuse ambiguities, but not defects, in the complaint. See Colbert v. United States,6lT F. App'x 981,983 (Fed. Cir. 2015); see also Demes v. United States,52 Fed. Cl. 365, 368 (2002) ("[T]he leniency afforded pro se litigants with respect to mere formalities does not relieve them ofjurisdictional requirements.") (citation omitted).

B. Jurisdiction And RCFC l2(bxt) It is well established that this Court's subject-matter jurisdiction must be established before it addresses the merits of a claim. Plains Comm. Bankv. Long Family Land & Cattle Co., 554 U.S. 316,324 (2008) (citing S/eel Co. v. Citizensfor a Better Env'l, 523 U.S. 83, 88-89 (1998) (Subject-matter jurisdiction is "a threshold question that must be resolved . . . before proceeding to the merits.")). When deciding a motion to dismiss upon the ground that the Court does not possess subj ect-matter j uri sdiction pursuant to RCFC 12(bX1), this Court must assume that all undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the non-movant's favor. Ericl<son v. Pardus,551 U.S. 89,94 (2007); see a/so RCFC 12(bxl).

But, plaintilfbears the burden ofestablishing subject-matter jurisdiction, and he must do so by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F .2d 7 46,7 48 (Fed. Cir. 1988). And so, should the Court determine that "it lacks jurisdiction over the subject matter, it must dismiss the claim," Matthews v. United States,72Fed.Cl.274,278 (2006) (citing l2(h)(3)).

In this regard, the United States Cour! of Federal Claims is a court of limited jurisdiction and "possess[es] only that power authorized by Constitution and statute . . . ." Kokkonen v Guardian Life Ins. Co. ofAm.,5l1 U.S. 375, 377 (1994). The Tucker Act grants the Court jurisdiction over: [A]ny claim against the United States founded either upon the Constitution, or any Act ofCongress or any regulation ofan 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.

28 U.S.c. $ lael(a)(l) (2011).

The Tucker Act, however, is a 'Jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States Court ofFederal Claims] whenever the substantive right exists;' United States v. Testan,424 U.S.392,398 (1976). And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff must identifu and plead a money- mandating constitutional provision, statute, or regulation; an express or implied contract with the United States; or an illegal exaction of money by the United States. Cabral v. United States, 317 F. App'x 979,981 (Fed. Cir. 2008) (citing F,rher v. United States,402F.3d 1167, 1173 (Fed. Cir. 2005)); Norman v. United States,429F.3d 1081, 1095 (Fed. Cir. 2005). "[A] statute or regulation is money-mandating for jurisdictional purposes ifit'can fairly be interpreted as mandating compensation for damages sustained as a result ofthe breach ofthe duties [it] impose[s]."' Fisher,402 F.3d at 1173 (quoting United States v. Mitchell,463 U.S. 206,219 ( r e83)).

Specifically relevant to this matter, it is well established that the Court "does not have jurisdiction to review the decisions ofdistrict courts or the clerks ofdistrict courts relating to proceedings before those cowts." Joshua v. United Stutes,17 F.3d 378,380 (Fed. Cir. 1994)); see also Jones v. United States, No. l5-1044,2016 WL 447144, *1 (Fed. Cl. Feb.4,2016). And so, the Court must dismiss a claim seeking to review the decisions ofdistrict courts for lack of subject-matter jurisdiction. /d.

IV. DISCUSSION A. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Claim The govemment has moved to dismiss plaintiffs complaint for lack of subject-matter jurisdiction upon the ground that the Court does not possess jurisdiction to consider plaintiffs challenge ofhis state court criminal conviction and sentence to incarceration. Def. Mot. at 1-2.

For the reasons discussed below, the Court agrees that it does not possess jurisdiction to consider plaintiff s claim. And so, the Court must dismiss the complaint for lack of subject-matter jurisdiction. RCFC l2(bXl).

|. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Challenge Of The District Court's Decisions As an initial matter, to the extent that plaintiffseeks to challenge the district court's decisions to dismiss and/or transfer his cases before that court, the Court does not possess jurisdiction to consider plaintiffs claim. In the complaint, plaintiff alleges that the United States District Court for the Middle District of Pennsylvania's decision to transfer his petition for a wfit ofhabeas corpus to the United States District Court for the Eastem District ofPennsylvania is "without power or authority." Compl. at 2. Plaintiff also narnes the United States District Judge who presided over that case, as well as over plaintiff s other district court litigation challenging his conviction and sentence to incarceration, as a defendant in this action. See generally Compl,.

The United States Court ofAppeals for the Federal Circuit has held that the United States Court ofFederal Claims does not possess jurisdiction to review the decisions ofdistrict courts relating to proceedings before those courts. Joshua, 17 F.3d at 3 80 (Court lacks jurisdiction to entertain appeal ofdistrict court review of state criminal proceedings); Mora v. United States, I8 Fed. Cl. 713,716 (201a) (" [T]his court does not have jurisdiction to review the decisions of state courts, federal bankruptcy courts, federal district courts, or federal circuit courts of appeals."); Jones, No. l5-1044,2016 WL 447144, *1 (Fed. Cl. Feb.4,2016);see also Carter v. United States,228 C|.Cl.898,900 (1981). It is also well established that this Court does not possess jurisdiction !o review or consider criminal matters. See Cooper v. United States, 104 Fed. Cl. 306, 311-12 (2012) (holding that this Court cannot review criminal matters). A careful reading ofthe complaint demonstrates that a review ofthe district court's decisions with respect to plaintiff s criminal conviction and sentence to incarceration is precisely the reliefthat plaintiff is seeking in the complaint. And so, the Court must dismiss plaintiff s complaint for lack of subject-matter jurisdiction.3 RCFC 12(bX1).

2, The Court Does Not Possess Jurisdiction To Consider Plaintiff s Unjust Conviction Claim In addition, to the extent that plaintiff asserts an unjust conviction claim in the complaint, plaintiff has also failed to demonstrate that the Court possesses jurisdiction to consider that claim. In this regard, it is well established that this Court possesses jurisdiction to "render judgment upon any claim for damages by any person unjustly convicted of an offense against the United States and imprisoned." 28 U.S.C. $ 1495. It is also without dispute in this case that plaintiff s sentence to incarceration stems from his conviction ofvarious criminal offenses under Pennsylvania state law. See generally ll/asham v. DeL Cty Court of Common Pleas, et al.,No.

The Court is also without jurisdiction to consider plaintiffs claims against private individuals. United States y. Sherwoo4 312 U.S. 584, 588 (1941) (holding that, for suits filed in the United States Court of Federal Claims, "ifthe relief sought is against others than the United States the suit as to them must be ignored as beyond thejurisdiction ofthe court"); Stephenson v. United States,58 Fed. Cl. 186, 190 (2003) (holding that "the orly proper defendant for any matter before this court is the United States, not its officers. nor anv other individual").

95-cv-5697,2006WL3524384,*2(E.D.Pa.Dec.5,2006). Giventhis,plaintiffhasnot demonstrated that his unjust conviction claim involves a claim for damages by an individual who has been unjustly convicted for an offense against the United States and imprisoned. And so, plaintiffhas not met his burden to show that the Court possesses jurisdiction to consider this claim. Id. B. Plaintiff s Requests For Other Relief Are Moot The Court must also deny several motions that plaintiff has filed seeking various reliefas moot. First, on July 6, 2016, plaintiff filed a motion for summary judgment, pursuant to RCFC 56. See generally Pl. Mot. for Sum. Judg. On August 30,2016, plaintiff also filed a motion for judgment on the pleadings, pursuant to RCFC 12(c). See generallyPL Mot. Jmt. on Pl. Lastly, on October 26,2016, plaintiff filed a motion forjudgment, pursuant to RCFC 54(b). See generally Pl. Mot. Jmt. Because the Court has determined that it does not possess subject-matter jurisdiction to consider plaintiff s claim, the Court dismisses plaintiff s motions as moot. See, e.g., Ilojtczakv. UnitedStates,No. l2-449C,2012WL4903025,at*4 (Fed. Cl. Oct. 17,2012) ("Because . . . plaintiff still has not raised allegations over which this cowt has jurisdiction, the court denies these motions as moot.").

C. Plaintiffs Motion For Leave To Proceed In Forma Pauperr.t Satisfies The Statutory Requirement As a final matter, plaintiff filed a motion to proceed informa pauperis in this matter on June 24,2016. See generally Pl, Mot. to Proceed,lri Forma Pauperis. This Court may authorize commencement of a lawsuit without prepayment of fees when a plaintiff submits an affidavit including a statement of all assets, a declaration that he or she is unable to pay the fees, and a statement ofthe nature of the action and a beliefthat he or she is entitled to redress. See 28 U.S.C. $ 1915(aXl); see also 28 U.S.C. 0 2503(d). In cases where the plaintiff is a prisoner, as is the case here, the plaintiff must also submit "a certified copy of [his] trust fr.rnd account statement (or institutional equivalent) . . . for the 6-month period immediately preceding the filing of the complaint[.]" Bedell v. United States, No. l5-374, 2015 WL 3823946, at *3 (Fed. Cl. June 18, 2015) (quoting 28 U.S.C. $ 1915(a)(2)); Spencer v. United States,98 Fed. Cl. 349, n.8 (2011). In addition, a prisoner granted in forma pauperis status is still "required to pay the full amounr of a filing fee" over rime.4 28 U.S.C. $ l9l5(b)(1).

In this case, plaintiffhas provided a certified copy of his trust fund account statement in support of his motion to proceed in forma pauperis. See generally PL Mot. to Prcceed In Forma Pauperis. After reviewing plaintiff s submission, the Court finds that plaintiff has satisfied the statutory requirements to proceed, informa pauperis, And so, the Court grants plaintiffs motion to proceed informa pauperis for the limited purpose of resolving the government's motion to dismiss.

V. CONCLUSION In sum, when construed in the light most favorable to plaintiff, the complaint fails to demonstrate that the Court possesses subj ect-matter jurisdiction to consider plaintiff s claims.

And so, the Court must grant the govemment's motion to dismiss and dismiss the complaint for lack of subjeclmatter jurisdiction. RCFC l2(b)(l).

Because the Court concludes that it does not possess subj ect-matter j uri sdiction to consider plaintifPs claims, the Court also denies as moot plaintiff s motions for summary judgment, forjudgment on the pleadings and forjudgment. Lastly, in light of plaintiff s pro se status-and plaintiff s representation that he is unable to pay the Court's filing fee-the Court grants plaintifPs request to proceed in this matter in forma pauperis for the limited purpose of resolving the jurisdictional issues raised by the complaint.

And so, for the foregoing reasons, the Court: (1) GRANTS the government's motion to dismiss;

" The Court is required to "assess and, when funds exisl collect, as a partial payment ofany court fees required by law, an initial partial filing fee of 20 percent of the greater o(A) the average monthly deposits to the prisoner's account; or (B) the average monthly balance in the prisoner's account for the 6- month period immediately preceding the filing of the complaint or notice of appeal." 28 U.S.C. $ l9l5(bXl). Following payment of the initial partial filing fee, "the prisoner shall be required to make monthly payments of20 percent ofthe preceding month's income credited to the prisoner's account." l9l5(bX2). ln addition, a prisoner may not proceed in forma pauperis if the prisoner, while detained, previously had three or more complaints dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted, "unless the prisoner is in imminent danger of serious physical injury." U.S.C. $ l9l5(g). The dismissal ofthis case counts as a "strike" under 28 U.S.C. $ l9l5(g). (2) DENIES as moot plaintif s motion for sunmary judgrnent motion for judgrnent on the pleadings and motion for judgnent; and (3) GRANTS plaintiffs motion to proceed informa pauperis.

The Clerk's Office is directed to ENTER final judgrnent in favor of the governmeNlt DISMISSING the complaint.

No Costs, IT IS SO ORDERED.

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