Bishop v. United States ( 2023 )

In the United States Court of Federal Claims
No. 23-784C
(Filed: June 8, 2023)
)
LEMYRON BISHOP, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
ORDER
On May 30, 2023, Plaintiff, LeMyron Bishop, proceeding pro se, filed a complaint
against Defendant, the United States, in this Court. ECF No. 1. That same day, Mr.
Bishop filed a motion to proceed in forma pauperis (“IFP”). ECF No. 2. Pursuant to 28
U.S.C. § 1915(g), a plaintiff may not proceed IFP if:
the [plaintiff] has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the [plaintiff]
is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g); see Asemani v. United States Citizenship & Immigration Servs., 797 F.3d
1069, 1072 (D.C. Cir. 2015) (describing 28 U.S.C. § 1915(g) as the “three-strikes rule”). 1
1 Plaintiff’s filings are not clear regarding whether he is currently incarcerated. See Bishop v.
Federal Government (All Components), No. CV 21-00321 (D.N.M. June 23, 2021), ECF No. 8 (noting
that Mr. Bishop was previously incarcerated at the Eddy County Detention Center in Carlsbad,
New Mexico). Regardless, the IFP statute covers plaintiffs who are not presently incarcerated.
See, e.g., Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (explaining that 28 U.S.C.
§ 1915(a) “applies to all persons applying for [IFP] status, and not just to prisoners”); Tucker v.
United States, 142 Fed. Cl. 697, 706 n.3 (2019) (collecting cases).
Mr. Bishop has accumulated at least three strikes. See Bishop v. Federal Government
(as a Whole), No. 19-00833 (D.N.M. March 4, 2020), ECF No. 12 at 1, 6 (dismissing
Mr. Bishop’s complaint “for failure to state a claim and as frivolous,” and imposing a
strike pursuant to 28 U.S.C. § 1915(g)); Bishop v. United States, No. 20-00087 (D.N.M.
March 23, 2020), ECF No. 12 at 4, 7 (dismissing Mr. Bishop’s complaint as “frivolous and
delusional” and imposing a strike); Bishop v. Federal Government (as a Whole) World Wide,
No. 19-01129 (D.N.M. April 1, 2020), ECF No. 4 at 1, 6 (dismissing Mr. Bishop’s complaint
“for failure to state a claim and as frivolous” and imposing a strike); see also Bishop v. DHS,
No. 21-00887 (D.N.M. Oct. 25, 2021), ECF No. 6 at 4, 6 (describing Mr. Bishop’s “abusive
[filing] history,” noting that “[t]his is the seventh civil action [he] has initiated in the
District of New Mexico,” and ordering him to show cause why the court should not
impose filing restrictions). In addition, Mr. Bishop’s complaint gives no indication that
he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Nor does
his IFP request, ECF No. 2, “include[] a statement of all assets [he] possesses,” 28 U.S.C.
§ 1915(a)(1). For all of these reasons, Mr. Bishop’s motion to proceed IFP is DENIED.
In any event, the Court lacks jurisdiction over Mr. Bishop’s claims. See Rule
12(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”). He cites 28
U.S.C. § 1332 as the basis for this Court’s jurisdiction, but while that statute addresses
diversity jurisdiction in the district courts, this Court is a National Court,2 not a district
court, and lacks diversity jurisdiction. See 28 U.S.C. § 1332 (“Diversity of Citizenship;
amount in controversy; costs”); Rodgers v. United States, 153 Fed. Cl. 538, 541 (2021)
(“Section 1332 confers diversity jurisdiction exclusively on district courts”); Scott v. United
States, 2021 WL 163427, at *2 (Fed. Cl. Jan. 19, 2021) (“[D]iversity jurisdiction does not
provide a basis for jurisdiction in the Court of Federal Claims.” (citing Barber v. United
States, 636 Fed. App’x 1009, 1010 (Fed. Cir. 2016))).
Nor, for that matter, do Mr. Bishop’s conclusory allegations of “discriminational
[sic] actions” “fraud case closures,” “arrests from judicial figures,” and “claims of the
United States WhiteHouse [sic] and ALL lands and oceans,” among others, state any
cause of action within the Court’s Tucker Act jurisdiction. See 28 U.S.C. § 1491(a)(1);
United States v. Testan, 424 U.S. 392, 398–402 (1976). Indeed, his complaint contains no
non-frivolous assertions of fact whatsoever, let alone allegations sufficient to support a
claim within this Court’s jurisdiction. See Perry v. United States, 2021 WL 2935075, at *3
(Fed. Cir. July 13, 2021) (“As [plaintiff-appellant] does not point us to anywhere in his
complaint where he makes these relevant factual assertions, we agree with the trial court
that it lacks jurisdiction to hear the claim and that [plaintiff-appellant] failed to state a
claim upon which relief may be granted.”).
2Oztimurlenk v. United States, 162 Fed. Cl. 658, 675 & n.23 (2022) (explaining that the “National
Courts — so called because of their nationwide jurisdiction” — also include the United States
Court of International Trade and our appellate court, the United States Court of Appeals for the
Federal Circuit).
2
Accordingly, the Court denies Plaintiff’s “Request For Judgement” 3 and
DISMISSES his complaint for lack of jurisdiction pursuant to RCFC 12(h)(3). The Clerk
of the Court is directed to enter JUDGMENT for the government, dismissing this case.
IT IS SO ORDERED.
s/Matthew H. Solomson
Matthew H. Solomson
Judge
3On May 31, 2023, Plaintiff filed a sealed “Request for Judgement,” ECF No. 6, which is simply
another copy of his complaint, see ECF No. 1.
3