Kemp v. United States ( 2015 )

ORIGINAL
am the filim’teh States Qtuurt of Jfizheral QEIaimg
No. 15-457c
Filed: November 20, 2015
* ~k * * * * * * * * * * * * * * 2 0
* us. COURT
1 OF
WILLIAM FREDERICK KEMP, JR., * FEDERAL CLAIMS
Plaintiff, *
* m g Plaintiff; Lack of
V' * Subject Matter Jurisdiction;
,, Proper Defendants; Unlawful
,, Confinement; Admiralty.
UNITED STATES,
Defendant. :
* 'k * 'k * * * 'k * * * * * * *
William Frederick Kemp, Jr., mg, Adrian, MI.
Veronica N. Onyema, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for defendant. With her were
Deborah A. Bynum, Assistant Director, Robert E. Kirschman, Jr., Director, Commercial
Litigation Branch, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Washington, DC.
ORDER
HORN, J.
FINDINGS OF FACT
m g plaintiff “William-Frederick: Kemp, Jr” filed a complaint with the United
States Court of Federal Claims without naming the United States as a defendant, which
was accepted for filing by the Clerk’s Office. It is questionable whether the Clerk’s Office
should have filed plaintiff’s submission as a complaint under the minimum standards for
filing a complaint pursuant to the Rules of the United States Court of Federal Claims
1 The plaintiff’s name on the complaint that was submitted to the court is: “William-
Frederick: Kemp, Jr (a ‘natural person’) American national (Art. IV, §4. non-obstante) fl
God-given and unalienable ‘Rights’ are expressly reserved ab initio-ad infinitum UCC
§1308 without prejudice. . .
(RCFC) (2015). Nonetheless, once filed, the court reviews and considers plaintiff’s
complaint fully.
Although the complaint did not have the United States as a defendant, the
complaint named the following defendants:
1 US. 14TH AMENDMENT CITIZENSHIP, et. seq, 2 SPECIAL
DOCUMENTS OF TITLE: UCC §§7201, 7202, et. seq., 3 CORPORATE
STATE (MI.) CITIZENSHIP, et. seq. 4 ENS LEGIS:2WILLIAM FREDERICK
KEMP JR., et. seq. 5 First Account. . . and fl present value Thereunder, 6
ALL COMMERCIAL BONDS (Regards #2, #4, and #5 supra.)3
The complaint includes numerous disjointed allegations. Plaintiff’s complaint
begins with the statement that plaintiff intends to bring “an Admiralty Cause of Action to
‘wind—up’ the (unlawfully imputed) ENS LEGIS: WILLIAM FREDERICK KEMP, JR. for
Cause; and seize a_H Bonds, Accounts, and Orders therefrom. . . No further discussion
of plaintiff’s admiralty claim is included in the complaint. Plaintiff also does not provide
further details or information identifying the bonds, accounts, and orders. The complaint
subsequently spirals into further confusion and plaintiff’s allegations are increasingly
fragmented and difficult to follow. Moreover, over the course of the succeeding months,
plaintiff has continued to file rambling and even more confusing submissions with various
titles, most of which are not contemplated by the rules of this court.
Among plaintiff’s rambling allegations, he contends that his original birth records
and birth certificate are “tacit adhesion contracts” and “unconstitutional fraudulent
conveyances” under which he has been extorted to pay taxes. Plaintiff alleges that, at
the time of his birth, defendants “executed a ‘field-warehousing arraignment’ (UCC § 201,
UCC § 7202) using My Original Birth Records and presenting my mother with a firth
certificate.” To this end, plaintiff argues that the social security number is a public debt
instrument used to extort taxes and other value. Plaintiff appears to further argue that
“WILLIAM FREDERICK KEMP JR.” is a creation of the law, or an artificial being, and that
he, plaintiff, is a separate, natural person. Plaintiff alleges that he is “natural person4 . . .
Non-assumpsit to de facto Public Debt Policy & 14th AMENDMENT Citizenship.”
2 “Ens Legis” is defined in Black’s Law Dictionary as “[a] creature of law; an artificial being
as opposed to a natural person. The term describes an entity, such as a corporation, that
derives its existence entirely from the law.” Black’s Law Dictionam, 648 (10th ed. 2014).
3 Capitalization, grammar, punctuation, and other errors are quoted in this Order as they
appear in plaintiff’s submissions.
4 Plaintiff also confusingly states “I am NOT a US PERSON’ as defined in title 26 USC,
§ 7701, et seq..”
legal theory” and "claims whose factual contentions are clearly baseless.” |d_. at 327 (the
latter category encompassing scenarios that are “fantastic” and “delusional”); fl fl
Denton v. Hernandez, 504 US. 25, 32—33 (1992); McCullough v. United States, 76 Fed.
Cl. 1, 3 (2006), appeal dismissed, 236 F. App’x 615 (Fed. Cir.), fig denied (Fed. Cir.),
fl denied, 552 US. 1050 (2007); Schagene v. United States, 37 Fed. Cl. 661, 663
(1997), appeal dismissed, 152 F.3d 947 (Fed. Cir. 1998). Plaintiff’s deficient complaint in
case number 1:15-cv-00457, continuous inappropriate filings, such as his motion to
remove this case to the United States Supreme Court, and his failure to follow direction
on how to file his in forma pauperis application suggests serial misuse of the court process
and rises to the level of frivolous.
CONCLUSION
For all the reasons discussed above, plaintiff’s complaint is DISMISSED. The
Clerk of the Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED. ; 2 E
MARIAN BLANK HORN
Judge
11
Plaintiff asserts that he was subject to “unlawful ‘BAILMENT”’ at birth that:
[C]/ear/y constitutes “CONTRACTUAL” Kidnapping & Slavery amounting to
“TREASON” with the de facto GOVERNMENT(s) State & Federal both
working for their {Creditors} a foreign alien enemy agency acting upon
American Soil a “Foreign Principal” 22 U.S.C.S. § 611 et.seq., i.e. the
“UNI TED NA T/ONS” the Bank of Reconstruction and the l. M. F. acting under
a Title 11 U.S.C., Chapter 11 Reorganization of the US. {28 U.S.C.
§3002(15)(A)) Corporation. . .
Plaintiff’s complaint seems to allege he is affected by other contractual relationships
between the United States and the State of Michigan, as well as the United States and
the International Monetary Fund (IMF).
In the complaint, plaintiff also asserts that he is being unlawfully held and that the
State of Michigan is guilty of treason, sedition, oppression under color of law, and the
wrongful taking of his property. In his reply to defendant’s motion to dismiss, plaintiff
alleges there are other parties to this action: the “STATE OF MICHIGAN, Inc. (sub-
corporation of the US. (Id., supra)); COUNTY OF BRANCH, MI. (49036); CITY OF
COLDWATER, MI. (49036); the STATE BAR OF MICHIGAN; the ABA; and certain
“PERSONS” acting in “PUBLIC OFFICE’ contrary to constitutional Restraints and
Guarantees.”
For these alleged injuries, plaintiff demands extensive relief. Plaintiff asks this
court to “seize _Afl Bonds (Special Documents of Title UCC § 7201, UCC § 7202, UCC
§ 8102 et seq) and Accounts regards Me and My PERSON; wind-up the Ens
Legis : WILLIAM FREDERICK KEMP JR. (UCC § 9307(h)),” and $12,000,000 in money
damages for “Acts and Omissions by the STATE and FEDERAL GOVERNMENTS/IMF.”
Plaintiff also demands that his property be “relinquished by the STATE OF MICHIGAN.”
Defendant moves to dismiss plaintiff’s complaint for lack of subject matter
jurisdiction and for failure to state a claim upon which relief can be granted. Defendant
asserts that this court lacks jurisdiction to hear a contract action arising in admiralty as
that jurisdiction is exclusively vested in the district courts. Defendant also argues that
even if plaintiff did not allege an admiralty claim, “it is clear that Mr. Kemp has not alleged
any facts that demonstrate the existence of (1) a contract between him and the United
States, or (2) a money—mandating provision of law.” Also, in its motion to dismiss,
defendant asserts that this court does not have jurisdiction to “entertain claims asserted
against states, localities, state and local government entities, or state and local
government officials and employees. . . . Only the United States and its agencies are
proper parties.” Furthermore, defendant argues that, to the extent plaintiff asserts social
security and unlawful imprisonment claims, those must be dismissed because this court
does not have jurisdiction under the Tucker Act over claims related to social security
benefits or the federal criminal code.
Setting aside the jurisdictional barriers to plaintiff’s case, defendant argues that
plaintiff’s complaint should be dismissed for failure to state a claim because plaintiff’s
3
claims for relief are based on conclusory statements that lack sufficient factual allegations
to support his claims. According to defendant, “Mr. Kemp’s claims do not rise above a
speculative level and provide no plausible claim upon which relief can be granted.”
Shortly after filing his complaint, plaintiff filed a motion to proceed i_n forma
pauperis.5 In that motion plaintiff states:
Comes now the m William-Fredericszemp, Jr (a “natural person")
American national and hereby MOVES this [COURT] to waive fees & costs
for a “natural person" in Accordance FRCP, or in the Alternative to Allow
Plaintiff to proceed in forma Pauperis under waiver of fees & costs
Since filing his complaint, as noted above, plaintiff has engaged in filing numerous,
difficult to understand documents with the court, including, among others, motions which
seem to try to add defendants, to remove this case to the United States Supreme Court,
and for a default judgment against the United States. Also, plaintiff was directed by the
court on three occasions to file a response to defendant’s motion to dismiss, which plaintiff
eventually filed, but only after filing multiple defective and unresponsive submissions.
DISCUSSION
When determining whether a complaint filed by a m se plaintiff is sufficient to
invoke review by a court, m g plaintiffs are entitled to liberal construction of their
pleadings. E Haines v. Kerner, 404 US. 519, 520-21 (requiring that allegations
contained in a fig complaint be held to “less stringent standards than formal pleadings
drafted by lawyers”), [efig denied, 405 US. 948 (1972); ge_a_|sg Erickson v. Pardus, 551
US. 89, 94 (2007); Hughes v. Rowe, 449 US. 5, 9-10 (1980); Estelle v. Gamble, 429
US. 97, 106 (1976), figdenied, 429 US. 1066 (1977); Comerv. Peake, 552 F.3d 1362,
1369 (Fed. Cir. 2009). “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. Cl. 317, 328 (2011) (alterations in original) (quoting Scogin v. United
States, 33 Fed. Cl. 285, 293 (1995) (quoting Wit-fa. Nat’_l Travelers Life “WC-Ci... 518
F.2d 1167, 1169 (6th Cir. 1975))); & alfl Bussie v. United States, 96 Fed. Cl. 89, 94,
affJ, 443 F. App’x 542 (Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl. 249, 253
(2007). “While a pm s2 plaintiff is held to a less stringent standard than that of a plaintiff
represented by an attorney, the pfl g plaintiff, nevertheless, bears the burden of
establishing the Court’sjurisdiction by a preponderance of the evidence.” _Riles v. United
States, 93 Fed. Cl. 163, 165 (2010) (citing Hughes v. Rowe, 449 US. 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”), gig fl fig E M denied (Fed.
Cir. 2002)); Sta—ealfl Bernard v. United States, 59 Fed. Cl. 497, 499, m, 98 F. App’x
860 (Fed. Cir.), fill’g denied (Fed. Cir. 2004).
5 Defendant did not respond to plaintiff’s motion.-
4
Under the Tucker Act, 28 U.S.C. § 1491 (a)(1) (2012), the Court of Federal Claims
hasjurisdiction over claims against the United States (1) founded on an express or implied
contract with the United States, (2) seeking a refund from a prior payment made to the
government, or (3) based on federal constitutional, statutory, or regulatory law mandating
compensation by the federal government for damages sustained. E 28 U.S.C. § 1491;
fl fl United States v. Navajo Nation, 556 US. 287, 290 (2009). “The objection that
a federal court lacks subject-matterjurisdiction . . . may be raised . . . by a court on its
own initiative, at any stage in the litigation.” Arbaugh v. Y & H Corp., 546 US. 500, 506
(2006).
When deciding a case based on a lack of subject matterjurisdiction or for failure
to state a claim, 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. fl Erickson
.v. Pardus, 551 US. 89, 94 (2007) ("In addition, when ruling on a defendant’s motion to
dismiss, a judge must accept as true all of the factual allegations contained in the
complaint.” (citing Bell Atl. Corp. v. Twombly, 550 US. 555-56 (2007) (citing Swierkiewicz
_v. Sorema N. A., 534 US. 506, 508 n.1 (2002)))).
As an initial matter, the court addresses the named defendants in plaintiff’s
complaint. In his complaint, plaintiff does not name the United States as a defendant,
which is required under RCFC 10(a). It is not until plaintiff’s reply to defendant’s motion
to dismiss that plaintiff finally lists the United States as a defendant. As noted above, the
complaint lists as defendants:
1 US. 14TH AMENDMENT CITIZENSHIP, et. seq., 2 SPECIAL
DOCUMENTS OF TITLE: UCC §§7201, 7202, et. seq., 3 CORPORATE
STATE (Ml.) CITIZENSHIP, et. seq. 4 ENS LEGIS: WILLIAM FREDERICK
KEMP JR., et. seq. 5 First Account. . . and A_|l present value Thereunder, 6
ALL COMMERCIAL BONDS (Regards #2, #4, and #5 supra.)
In addition to these defendants, plaintiff also seeks relief from the “STATE OF
MICHIGAN, Inc. (sub-corporation of the US. (ld., supra»; COUNTY OF BRANCH, MI.
(49036); CITY OF COLDWATER, MI. (49036); the STATE BAR OF MICHIGAN; the
ABA; and certain “PERSONS” acting in “PUBLIC OFFICE” contrary to constitutional
Restraints and Guarantees.”
Pursuant to RCFC 10(a), all claims in the United States Court of Federal Claims
must have “the United States designated as the party defendant.” RCFC 10(a); $139
28 U.S.C § 1491(a)(1). The United States Supreme Court has indicated, for suits filed in
the United States Court of Federal Claims and its predecessors, “if the relief sought is
against others than the United States the suit as to them must be ignored as beyond the
jurisdiction of the court.” United States v. ShenNood, 312 US. 584, 588 (1941) (citation
omitted); fialfl Kurt v. United States, 103 Fed. Cl. 384, 386 (2012). Stated differently,
“the 9n_ly proper defendant for any matter before this court is the United States, not its
officers, nor any other individual.” Stephenson v. United States, 58 Fed. Cl. 186, 190
(2003); g E United States v. ShenNood, 312 US. at 588; May v. United States, 80
Fed. Cl. 442, 444 (“Jurisdiction, then, is limited to suits against the United States”), fl,
5
293 F. App’x 775 (Fed. Cir. 2008). It is, therefore, well-established that this court does
not have jurisdiction to hear any claims against defendants other than the United States.
Accordingly, all of plaintiff’s claims against the named defendants other than the United
States are dismissed.
Plaintiff does not specifically articulate the authority under which he believes this
court can exercise jurisdiction to hear his complaint. In his complaint, plaintiff specifically
“moves this court in an Admiralty Cause of Action.” Under 28 U.S.C. § 1333 (2012),
district courts have exclusive original jurisdiction to hear “any civil case of admiralty or
maritimejurisdiction. . . 28 U.S.C. § 1333(1). “Ifa government contract claim concerns
admiralty, the United States District Courts have exclusive jurisdiction.” ._Hunsaker v,
United States, 66 Fed. CI. 129, 132 (2005); geflThrustmaster of Texas, Inc. v. United
States, 59 Fed. CI. 672, 673 (2004) (holding that the Contract Disputes Act preserves
admiralty jurisdiction in the federal district courts for suits arising out of maritime
contracts). The law is well-settled that this court does not have jurisdiction to hear claims
arising in admiralty, as such, plaintiff’s claim to have an admiralty cause of action is
dismissed for lack of subject matterjurisdiction.
Even if the allegations in plaintiff’s complaint are viewed generously and the court
considers plaintiff’s allegations as separate from the admiralty claim, in order for this court
to exercise jurisdiction of plaintiff’s apparent contract claims, under the Tucker Act, 28
U.S.C. § 1491, a plaintiff must allege facts that demonstrate either a contract exists
between himself and the United States, or plaintiff must somehow allege he is entitled to
monetary relief under another money-mandating provision of law. Plaintiff alleges that
his birth records and birth certificate constitute “adhesion contracts” with the United States
that bind him to pay taxes. To establish a valid contract with the government, whether
express or implied, a plaintiff must show: (1) mutuality of intent; (2) consideration; (3) an
unambiguous offer and acceptance; and (4) actual authority on the part of the
government’s representative to bind the government in contract. §fi Kam—Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012). In his complaint and supplemental
filings, plaintiff merely alleges, without explanation, that his birth certificate and birth
records are adhesion contracts. Plaintiff also alleges that the social security number is a
public debt instrument used to extort taxes and other value. Even a careful reading of the
complaint does not demonstrate that plaintiff adequately alleges that a contract has come
into existence sufficient for this court to exercise jurisdiction over his complaint. This court
has previously held that “neither a birth certificate nor a social security number evidence
a contract on which a private party can sue the Government. S_e§ Rivera v. United States,
105 Fed. Cl. 644, 650 (2012). Accordingly, plaintiff’s alleged contract claims are
dismissed.
Furthermore, plaintiff does not indicate what money—mandating statute or other
provision of law entitles him to recover monetary damages from the United States. In his
prayer for relief, plaintiff cites to the Uniform Commercial Code (UCC). The UCC is
adopted as law separately by the states, it is not a federal law that applies to the United
States. fl McDonald v. United States, 13 Ct. CI. 255, 260 (1987); E fig Rhone
Poulenc Agro, S.A. v. DeKalb Genetics Corp., 284 F.3d 1323, 1329 (Fed. Cir. 2002)
(explaining that the UCC may serve to guide the creation of new federal law thereby
6
distinguishing the UCC from federal law); jggeflnne & Nagel, inc. v. United States, 17 Cl.
Ct. 11 n5 (1989) (explaining that the UCC does not apply to the federal government, “for
federal common law governs the rights of the United States”). Accordingly, plaintiff
cannot rely on the UCC as the money-mandating statute that entitles him to monetary
relief from the federal government, and plaintiff does not cite to any other provision of law.
Additionally, plaintiffalleges that he is currently being “unlawfully held under ‘Color-
of—law’/Color-of-Office [Commercial Cause 2014-1280-FH] by unlicensed Attorn[eys]
acting as [Judge] under Color-of—Office. . . The United States Court of Appeals for the
Federal Circuit has held that the Court of Federal Claims does not have subject matter
jurisdiction over actions alleging unlawful confinement or imprisonment. ECochran v,
United States, 250 F.3d 754 (Fed. Cir. 2000) (affirming lower court’s decision that it did
not have subject matterjurisdiction over plaintiff’s claim for false imprisonment and unjust
conviction). ln Zakiya v. United States, this court explained that 28 U.S.C. § 1495 (2012),
gives the Court of Federal Claims jurisdiction to render judgment upon any claim for
damages by any person unjustly convicted of an offense against the United States and
imprisoned. Zakiya v. United States, 79 Fed. Cl. 231, 235 (2007). The statute, 28 U.S.C.
§ 2513, however, makes it clear that the Court of Federal Claims cannot review an alleged
wrongful conviction and imprisonment. gig. In orderto bring a claim against the United
States to recover for an unjust conviction and imprisonment, a plaintiff must show that
"his conviction has been reversed or set aside on the ground that he is not guilty . . . or
that he has been pardoned." 28 U.S.C. § 2513(a)(1). As evidence to support such a
claim, the plaintiff must provide a record or certificate of the court setting aside or
reversing the conviction. S_eg id_. Mr. Kemp has not alleged, much less provided
evidence, that his conviction was reversed or set-aside or that he received a pardon.
Moreover, his return address lists the Gus Harrison Correctional Facility in Adrian,
Michigan. As a result, this court lacks subject matter jurisdiction to hear plaintiff’s claim
that he is being unlawfully held.
Plaintiff also asks this court to “seize fl Bonds (Special Documents of Title UCC
§ 7201, UCC § 7202, UCC § 8102 et seq) and Accounts regards Me and My PERSON;
wind-up the Ens Legis : WILLIAM FREDERICK KEMP JR. (UCC § 9307(h))." As plaintiff’s
statement regarding this relief does not assert a claim for money damages, perhaps this
is a request for declaratory or injunctive relief. The Federal Circuit has explained that the
Court of Federal Claims “does not have general equity jurisdiction to grant injunctive
relief.” Shemonsky v. United States, 215 F.3d 1340 (Fed. Cir. 1999) (upholding decision
of the Court of Federal Claims that the court’s jurisdiction did not extend to injunctive or
declaratory relief); & alfl Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.
2003); Choate v. United States, 60 F.3d 840 (Fed. Cir. 1995) (holding that “[t]he Tucker
Act does not provide a means by which the Court of Federal Claims may grant injunctive
or declaratory relief where the suit does not involve a pre—award protest or the application
of section 7428 of the Internal Revenue Code”). As stated by the Federal Circuit:
The Court of Federal Claims has never been granted general authority to
issue declaratory judgments, and to hold that the Court of Federal Claims
may issue a declaratory judgment in this case, unrelated to any money
claim pending before it, would effectively override Congress's decision not
to make the Declaratory Judgment Act applicable to the Court of Federal
Claims.
Nat'l Air TrafficControllers Ass'n v. United Statj, 160 F.3d 714, 716—17 (Fed. Cir.1998);
fl aliUnited States v. Tohono O'Odham Nation, 563 US. 307 (2011) (The United
States Court of Federal Claims “has no general power to provide equitable relief against
the Government or its officers"). Moreover, in an action brought under 28 U.S.C.
§ 1491 (a), this court can only provide declaratory or injunctive relief “as an incident of and
collateral to” a judgment for money damages. 28 U.S.C. § 1492(a)(2); fl fl Taylor v.
United States, 113 Fed. Cl. 171, 173 (2013) (holding that the TuckerAct does not provide
independentjurisdiction over claims for injunctive relief in contractual dispute cases). For
example, in a case brought under the Tucker Act that did not involve a pre-award protest,
once the Court of Federal Claims determined that it did not have jurisdiction to hear a
plaintiff’s claims for money damages, it necessarily followed that the court did not have
authority to hear that plaintiff’s claims for injunctive relief. E Kanemoto v. Reno, 41
F.3d 641, 645 (Fed. Cir. 1994); flfl Taylor v. United States, 113 Fed. Cl. at 173.
In 2004, plaintiff filed an earlier complaint in this court “asserting various tort,
declaratory, constitutional, and criminal claims,” which was dismissed in an unpublished
order on July 14, 2004. Kemp v. United States, 1:04-cv-00910 (Fed. Cl. July 14, 2004).
Judge Firestone found that plaintiff had “failed to assert a colorable money damage claim
within this court’s jurisdiction. Without such a primary claim, this court cannot hear the
plaintiff’s claims for declaratory and injunctive relief.” Q Similarly, this court determines
that it does not have subject matter jurisdiction to hear plaintiff’s claims for money
damages or for declaratory or injunctive relief, and, therefore, dismisses plaintist
complaint for lack of subject matterjurisdiction.
When plaintiff filed his complaint, he also filed a motion to proceed m forma
pauperis. According to his place of residence, plaintiff is an inmate at the Gus Harrison
Correctional Facility in Adrian, Michigan. In order to provide access to this court to those
who cannot pay the filing fees mandated in this court by RCFC 77.1 (c), the statute at 28
U.S.C. § 1915 (2012) 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 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 i_n forma pauperis is left to the
discretion of the presiding judge, based on the information submitted by the plaintiff or
plaintiffs. E, ggy, Rowland v. Cal. Men’s Colony, 506 US. 194, 217—18 (1993);
Fuentes v. United States, 100 Fed. Cl. 85, 92 (2011).
8
When the person submitting a request to proceed i_n forma pauperis is a prisoner,
28 U.S.C. § 1915(a)(2) requires that the prisoner submit, along with the affidavit required
by subsection (a)(1), a certified copy of:
[T]he trust fund account statement (or institutional equivalent) for the
prisoner for the 6—month period immediately preceding the filing of the
complaint or notice of appeal, obtained from the appropriate official of each
prison at which the prisoner is or was confined.
28 U.S.C. § 1915(a)(2); fialfl Matthews v. United States, 72 Fed. Cl. 274, 277 (2006),
recons. denied 73 Fed. Cl. 524 (2006). In the affidavit required under 28 U.S.C.
§ 1915(a)(1), a prisoner must further “state the nature of the action, defense or appeal
and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1).
HI I”
A prisoner is charged with knowing what forms are required, especially if the
individual has previously filed applications to proceed i_n forma pauperis. Resendez v.
United States, 96 Fed. Cl. 283, 286 (2010) (quoting Piskanin v. Court of Common Pleas
of Lehigh Cnty. & all of its Judges, 359 F. App’x 276, 278 (3d. Cir. 2009)). Failure to
submit a trust fund account statement is grounds for a court to deny a prisoner’s i_n forma
pauperis application. fl Resendez v. United States, 96 Fed. Cl. at 286 (denying pgs_e
plaintiff’s application due to failure to attach trust fund statement even though plaintiff
made representations as to the amount contained in account) (emphasis added);
Johnson v. United States, 82 Fed. Cl. 150, 152 (denying mg plaintiff‘s application due
to failure to include trust fund statement and required affidavit), appeal dismissed, 328 F.
App’x 636 (Fed. Cir. 2008).
Therefore, pursuant to 28 U.S.C. § 1915(a)(1), in order to qualify for i_n forma
pauperis status, an applicant must file an affidavit which includes a statement of assets,
a statement that the applicant is unable to pay such fees or provide security, the nature
of the action, defense or appeal, and that the affiant believes that he or she is entitled to
redress. As a prisoner requesting in forma pauperis status, in accordance with 28 U.S.C.
§ 1915(a)(2), the plaintiff also must submit a certified copy of his or her prison trust fund
account statement for the six months preceding the filing of the action.
In the above-captioned case, plaintiff failed to comply with the requirements of 28
U.S.C. § 1915(a)(1), rendering his application to proceed in forma pauperis deficient.
Plaintiffs application merely states:
Comes now the m William—Frederick:Kemp, Jr (a “natural person”)
American national and hereby MOVES this [COURT] to waive fees & costs
for a “natural person” in Accordance FRCP, or in the Alternative to Allow
Plaintiff to proceed in forma Pauperis under waiver of fees & costs
Plaintiffs application to proceed i_n forma pauperis does not include an affidavit describing
the “nature of the action, defense or appeal and affiant's belief that the person is entitled
to redress,” 28 U.S.C. § 1915(a)(1), nor does it include a certified copy of his prison trust
fund account statement.
In addition to more than ten, previous, unsuccessful or ongoing, habeas petitions
and writs of mandamus filed in other federal courts, a number of plaintiff’s complaints
have been dismissed because, after receiving specific instructions on how to properly
apply for lg forma pauperis status, plaintiff did not comply with those requirements. For
example, plaintiff filed a complaint and application to proceed i_n forma pauperis in the
Western District of Michigan, Southern Division, on April 9, 2015. E Kemp v. Michigan,
1:15-cv-00382-RHB—PJG (W.D. Mich.). In that case, the court issued a deficiency order
on April 10, 2015 that stated:
Plaintiff has failed to pay the filing fee or to apply in the manner required by
law to proceed in forma pauperis. Under the provisions of the Prison
Litigation Reform Act of 1995, if a prisoner wishes to proceed in forma
pauper/s, the prisoner must file a certified copy of a prisoner trust fund
account statement and an affidavit of indigence.
,Kemp v. Michigan, 1:15—cv-OO382. That order included specific instructions directing
plaintiff to file the required certified copy of a prisoner trust fund account statement and
to submit an affidavit with a statement of all assets plaintiff possesses, a statement that
plaintiff is unable to pay the fee or give security therefor, and a statement of the nature of
the action. Plaintiff also filed an emergency petition for a writ of habeas corpus in that
same court on April 16, 2015, and, one day after filing the petition, the court issued a
deficiency order directing plaintiff to either pay the filing fee or, alternatively, file an
affidavit of indigence and a certificate of prisoner trust fund account statement, pursuant
to 28 U.S.C. § 1951. E Kemp v. Pollack, 1:15-cv—00406-PLM-PJG (W.D. Mich.). In
that case, plaintiff did not file a proper application to proceed m forma pauperis.
These cases demonstrate that plaintiff was on notice of the requirements of how
to properly file an application to proceed ifl forma pauperis when he filed his complaint
and motion for leave to file in forma pauperis in the above—captioned case. Plaintiff was
specifically informed of the filing requirements and, yet, continues to submit deficient
applications to proceed ifl forma pauperis. The statute, 28 U.S.C. § 1915(e)(2), governing
proceedings jfl forma pauperis, authorizes federal courts to deny lfl forma pauperis status
and to dismiss claims ifthe court determines that the claims brought by the m& plaintiff
are frivolous or malicious, or fail to state a claim on which relief may by granted. That
plaintiff submitted a deficient application to proceed i_n forma pauperis in this case is an
independently sufficient basis to dismiss plaintiff’s complaint.
Plaintiff’s continued filing of incomplete or improper complaints and defective i_n
forma pauperis petitions, as well as a continuous barrage of random filings should not be
condoned. Like previous cases filed by this plaintiff, his complaint currently before the
court raises issues which are clearly not within the jurisdiction of this court and plaintiff
continues to ignore explicit directions on how to file ifl forma pauperis petitions. The
United States Supreme Court explained in Neitzke v. Williams, 490 U.S. 319, 325 (1989),
that "a complaint . . . is frivolous where it lacks an arguable basis either in law or in fact.”
a at 325 (The Supreme Court also stated that the term “ ‘frivolous,’ when applied to a
complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual
allegation”). The court may dismiss claims that are “based on an indisputably meritless
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