Potter v. United States

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No. 15-569C
Filed November 5, 2015 FILED
Nov - 5 2015
ISAAC A. POTTER, JR., U.S. COURT OF
FEDERAL CLAIMS
Plaintiff,
Pro Se; Rule 12(bXl), Subject-Matter
Jurisdiction; Rule 41(b), Failure to
Prosecute; Claims Against a Private Party;
THE LNITED STATES, 28 U.S.C. $ 1631, Motion to Transfer; In
Forma Pauneris.
Defendant.
Isaac A. Pouer, Jr., Orlando, FL, plaintiffpro se.
Melissa L. Baker, Trial Attomey, Brian A. Mizoguchi, Assistant Director, Robert E'
Kirschman, Jr., Director, 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. Judge
I, INTRODUCTION
Pro se plaintiff, Isaac A. Potter, Jr., brought this action seeking unspecified monetary
damages and other relief for alleged misconduct by a private health care services provider in
connection with medical treatment provided to his spouse. The govemment has moved to dismiss
the complaint for lack of subject-matter jurisdiction, pursuant to Rule l2(b)(1) ofthe Rules ofthe
United States Court of Federal Claims C'RCFC'). Plaintiff has also moved to proceed in this matter
informa pauperls and to transfer this matter to the United States District Court for the District of
Columbia. For the reasons set forth below, the Cou( GRANTS defendant's motion to dismiss,
GRANTS plaintiff s motion to proceed in forma pauperis, and DENIES plaintiff s motion to
transfer.
il, FACTUAL AND PROCEDURAL BACKGROUND'
A, Factual Background
Plaintiff pro se, isaac A. Potter, Jr., commenced this action on June 3, 2015. See generally
Compl. Plaintiff alleges numerous causes of action in the complaint including: false allegations,
retaliatory conduct, conspiracy to harm a patient and the patient's family, emotional distress, mental
anguish, slander, violation of the patient's and spouse of the patient's constitutional rights,
discriminatory acts, various malicious negligent acts, negligent misdiagnoses, and violation of the
patient's bill ofrights for the hospital industry according to law. Id.aI l-2. Plaintiff also alleges
violations of various Florida state laws; the Emergency Medical Treatment and Active Labor Act,
42 U.S.C. $ 1395dd; I 8 U.S.C. $ 242; and the United States Constitution. Id. at 1' 5-8' l0'
Specifically, plaintiff alleges that, during the period 201i-2015, Adventist Health system
(,,Adventist")-a private health care services provider-engaged in various wrongdoing related to the
treatment ofhis spouse for a recurring staph infection and other maladies. /d. Plaintiff also alleges
that Adventist's conduct led !o, among other things, his spouse experiencing "[flever and/or chills,"
"blood in urine," and "urine output is less than usual amount'" Id' at 10'
B. ProceduralBackground
Plaintiff filed the complaint inthis matter on June 3,2015. See generally compl. on
Jwe24,2015, defendant filed a motion to dismiss plaintiff s complaint for iack of subject-matter
jurisdiction, pursuant to RCFC 12(bX1). See generally Def. Mot. on June 16,2015, plaintiff
attempted to file a collection of documents entitled "Notice of Lawsuit and Request for Waiver
of
Service of Summons." Because there is no provision in the court's Rules for the filing of
such
documents, the Court directed the Clerk's Office to retum the documents to plaintiff unfiled
on
June 17,2015. See June 17,2015 Order.
On July 1, 2015, plaintiff filed a motion to transfer this case to the United States District
court for the District of columbia.2 see generaily Pl. Mot. On July 6, 2015, the govemment filed
I The facts recited in this Memorandum Opinion and Order are taken from plaintifPs complaint ("Compl' at
plaintiffs motion to transfer ("Pl Mot. at-");
_"); defendant's motion to dismiss ("Def. Mot. at-");("bef. opp. to Pl. Mot. at plaintiff s August l7'
oerenaunt's opposition to plaintiff s motion to transfer
201 5 notice 1,lpl. Notice ai _"); and defendant's response to plaintiff s notice
-");Resp. to Notice at
("Def.
-").
pertains
2
ln the motion to transfer, plaintiffrefers to Rule l9 ofthe Federal Rules of Civil Procedure-which
not identiff a
to required joinder of partiis. See generally Pl. Mot.; Fed. R. Civ. P. 19. But, plaintiff does
an opposition to plaintiff s motion to transfer. See generally Def. Opp. to Pl. Mot. Plaintiff did not
file a timely response to the defendant's motion to dismiss. And so, on August 4, 2015, the Court
issued an order instructing plaintiffto show cause on or before August 18, 2015, as to why this
action should not be dismissed for failure to prosecute pursuant to Rule 41(b). See generally Order
to Show Cause.
On August 17,2015, plaintiff filed a notice with the Court which restates his request to
transfer this case to district court. See general/y Pl. Notice. On August 3l ,2015, defendant filed a
response to plaintiffs notice. See generally Def. Resp. to Notice. Plaintiffhas not filed a response
to the defendant's motion to dismiss, or to the Court's Order to Show Cause.
III, STANDARDS OF REVIEW
A. Pra Se Litigants
Plaintiff is proceeding in this matter pro se. The Court recognizes that parties proceeding
pro se are granted greater leeway than litigants represented by counsel. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (holding that pro se complaints are held to "less stringent standards than
formal pleadings drafted by lawyers"). Nonetheless, "[w]hile a court should be rcceptive ro pro se
plaintiffs and assist them, justice is ill-served when ajurist crosses the line from finder offact to
advocate." Demesv. United States,52 Fed. Cl.365,369 (2002). And so, while the Court may
excuse ambiguities in plaintiff s complaint, the Court does not excuse the complaint's failures. See
Henke v. United States,60 F.3d 795, 799 (Fed. Cir. 1995).
In addition, this Court has long recognized that "the leniency afforded to a pro se litigant
with respect 1o mere formalities does not relieve the burden to meet jurisdictional requirements."
Minehan v. united States,75 Fed. Cl.249,253 (2007). For this reasorl, a pro se plaintiff-like any
other plaintiff-must establish the Court's jurisdiction to consider his claim by a preponderance of
the evidence. Rilesv. United States,93Fed. Cl. 163, 165(2010).
B. Rule 12(b)(l)
When deciding a motion to dismiss for lack of subject-matter judsdiction, 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. See Erickson v. Pardus,55l U.S.89,94(2007);United Pac.
party to bejoined in his motion to transfer. And so, the Court does not read plaintiff s motion to also seek
the joinder of parties.
Ins.Co.v. IJnitedStates,464F.3d1325,1328(Fed.Cir.2006); RCFCl2(bxl). Plaintiffbearsthe
burden ofestablishing subject-matter jurisdiction, and must do so by a preponderance of the
evidence. Reynolds v. Army & Air Force Exch. Serv.,846F.2d746,748 (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).
In this regard, the United States Court ofFederal Claims is a court of limited jurisdiction and
"possess[es] only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardiqn
Life Ins. Co. ofAm.,511U.S. 375, 377 (1994). Specifically, 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 conftact with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort.
28 U.S.C. g 1a91(a)(1). 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 rJ.5.392,398 (1976). And so, to come within the
jurisdictional reach and waiver of the Tucker Act, a plaintiff must identifu a separate source of
substantive law that creates the right to money damages. Fisher v. United States, 402 F .3d 1167 ,
1172 (F ed. Cir. 2005). If the Court finds that the source of law alleged is not money-mandating, the
Court must dismiss the case for lack of iurisdiction. /d at 1173; RCFC 12(bxl)
C. Rule 41(b)
Rule 4l(b) ofthe Rules of the United States Court ofFederal Claims provides that:
Ifthe plaintiff fails to prosecute or to comply with these rules or a court order, the
court may dismiss on its own motion or the defendant may move to dismiss the
action or any claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not under this rule-except one
for lack ofjurisdiction or failure to join a party under RCFC 19-operates as an
adjudication on the merits.
RCFC 41(b). Rule 4l (b) is a necessary tool to ensure efficient docket management and to prevent
the undue delay of the litigation. Linkv. I{abash R. Co'370 U.S.626,629-30 (1962)("The
authority ofa federal trial court to dismiss a plaintilf s action with prejudice because ofhis failure
to prosecute cannot seriously be doubted."). In addition, the Cout's authority to dismiss a
complaint "sua sponte for lack ofprosecution has generally been considered an inherent power,
'govemed not by rule or statute but by the control necessarily vested in courts to manage their own
affairs so as to achieve the orderly and expeditious disposition ofcases."' Claude E. Atkins Enters.,
Inc. v. [Jnited States,899 F.2d I I 80, I 185 (Fed. Cir. 1990) (quoting Link,370 U.S. at 630-31).
IV. DISCUSSION
A, Dismissal Is Warranted For Failure To Prosecute
As an initial matter, dismissal of plaintiff s complaint for failure to prosecute this matter is
warranted under Rule 41(b). RCFC 41(b). Rule 41(b) provides in pertinent part that:
If the plaintiff fails to prosecute or to comply with these rules or a court order, the
court may dismiss on its own motion or the defendant may move to dismiss the
action or any claim against it.
RCFC 4l(b). "While dismissal of a claim is a harsh action, especially to apro se litigant, it is
justified when a party fails to pursue litigation diligently and disregards the court's rules and show
cause order." Whiting v. United States,99 Fed. Cl. 13, 17(2011).
Dismissal of plaintiff s complaint pursuant to RCFC 4l(b) is justified here. Despite the
passage of several months since plaintiff s responsive filing was due, plaintiff has not responded to
the jurisdictional concems raised in the defendant's motion to dismiss.3 Plaintiffhas also failed to
comply with the Court's August 4, 2015 Order to Show Cause why the matter should not be
dismissed for failure to prosecute. The Court is cognizant of plaintiffs pro se status. But, given
plaintiffs failure to diligently pursue this litigation and plaintiffs total disregard of the Court's
order to Show cause, the court must conclude that dismissal of this matter is justified. ,se€
Ilhiting, gg Fed. Cl. at 17. And so, the court dismisses the complaint pursuant to Rule 4l(b).
RCFC 41(b).
B. This Court Lacks Subject-Matter Jurisdiction To Consider Plaintiff s Claims
Notwithstanding plaintiff s failure to prosecute this matter, dismissal of the complaint is also
warranted because the Court does not possess jurisdiction to consider plaintiff s claims. RCFC
3
The deadline for the filing of plaintiffs response to the defendant's motion to dismiss was July 27, 2015.
See RCFC 7(b). On August 17,2015, plaintifffiled a notice withthe Court, which quotes the Federal Rules
of Bankruptcy Procedure regarding dismissal and change ofvenue, and appears to restate his request that the
Court tranifei this matter to the United States District Court for the District of Cohtmbia. See generally Pl
Notice. But, this filing does not address, or respond to, any of the j urisdictional issues raised in the
defendant's motion to dismiss. 1d.
12(bxl). In this regard, the government has moved to dismiss plaintiff s complaint upon two
grounds: First, the government argues that the Court does not possess judsdiction to consider
plaintiff s claims against a private party. Def. Mot. at 4-5. Second, the govemment also argues that
the Court does not possess jurisdiction to consider the claims alleged in the complaint. Id.at5'8.
For the reasons discussed below, the Court agrees that it does not possess jurisdiction to consider
this matter.
1. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Claims
Against A Private Party
As a threshold matter, it is well established that this Court does not possess jurisdiction to
consider claims asserted against a private party. United States v. Sherwood, 312 U.S. 584, 5 88
( 1941) (The Court ofFederal Claims "is without jurisdiction ofany suit brought against private
parties . . . ."). Rather, the United States is the only proper defendant in cases brought in the United
States Court of Federal Claims. Pikutin v. United States,97 Fed. CI.71,75 (2011); Stephenson v.
[Jnited States,58 Fed. Cl. 186, 190 (2003) ("[T]he only proper defendant for any matter before this
court is the United States, not its officers, nor any other individual.").
A plain reading of the complaint here shows that plaintiff is asserting claims against a
private health care services provider-Adventist Health Systems. See generally Compl. In fact, the
factual allegations in the complaint pertain solely to the alleged conduct of Adventist in connection
wirh the treatment of plaintiffs spouse. 1d (Plaintiff alleges that, during the period 2011-2015,
Adventist engaged in various wrongdoing related to the treatment ofhis spouse for a recurring staph
iniection and other maladies). And so, even the most generous reading of plaintiffs complaint
makes clear that plaintiffhas not alleged any substantive claims against the United States
government, or any of its agencies.a Id. Given this, the court does not possess jurisdiction to
consider plaintiff s claims. MayCo. v. UnitedStates,38 Fed. CI.414,416 (1997)(Plaintiff listed
the United States as a defendant but the complaint contained no "substantive allegations at all
asainst the United States" and therefore the Court lacked jurisdiction.).
a plaintiffs co.plaint initially identified the Department of Health and Human Services as the defendant in
this matter. generally Compl. But, the complaint contains no allegations of wrongdoing on the part of
See
the Deoartment &Health and Human Services, or any other federal government agency - Id.
2. The Court Does Not Possess Jurisdiction To Consider Plaintiff s Tort,
State Law Or Criminal Law Claims
Dismissal ofthis matter is also warranted because the Court does not possess jurisdiction to
consider plaintiff s tort law, state law,5 or criminal law claims. See Compl. at1-2,7'11.
As an initial matter, to the extent that plaintiffis asserting tort law claims, it is well
established that the Court does not possess jurisdiction to consider such claims. Shearin v. United
States,992 F.2d 1195, 1197 (Fed. Cir. 1993) ("lt is well settled that the [United States Court of
Federal Claimsl lacks... jurisdiction to entertain tort claims."); see also28 U.S.C. $ 1491(a). In the
complaint, plaintiff alleges numerous tort law claims including, "false allegations," "emotional
distress," "mental anguish," and "slander." Compl. at 1. This Court does not possess jurisdiction to
entertain claims sounding in tort. 28 U.S.C. $ 1491(a) ("The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any 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 case not sounding in tort."). As a result, the Court must dismiss plaintiff s tort law
claims for lack of subject-matter jurisdiction. 1d.; RCFC l2(bXl).
The Court also does not possess jurisdiction to consider plaintiffs state law claims.
Souders v. S. Carolina Pub. Serv. Auth.,497 F.3d 1303, 1307 (Fed. Cir. 2007) ("Claims founded on
state law are also outside the scope ofthe limited jurisdiction of the Court ofFederal Claims.")
(citing United States v. Mitchell,463 U.S. 206,215-18 (1983)). In this regard, plaintiff alleges
violations of the Florida Mental Health Act, commonly known as the Baker Act. Compl. at 8;
Collins v. State, 125 So. 3d 1046, 1048 (Fla. Dist. Ct. App. 2013). This state law claim falls outside
of the limited jurisdiction of this Court. Souders,497 F.3d at 1307. And so, the Court must also
dismiss plaintiff s state law claim for lack of subject-matter jurisdiction. RCFC 12(bxl).
This Court is similarly without jurisdiction to consider plaintiff s criminal law claims. See
Joshua v. [Jnited States, 17 F.3d 3?8, 3 79 (Fed. Cir. 1994) (the Court of Federal Claims "has no
jurisdiction to adjudicate any claims whatsoever under the federal criminal code"); see also Jones v.
s
Specifically, plaintiff alleges "violation ofFla. State Ann. Subsection 415.1I I S. 775.083 or S. 775.082";
violation of,,health care surrogat€ subsection 7 65-201-765-205"; violation of"the Baker Act
2S7.057(3)(eXb)"; and violation ofthe "20l4 Florida Statutes Title XXX Social Welfare Chapter 415."
Comnl. at l. 8.
Ilnited States,440 F. App'x 916, 918 (Fed. Cir.2011). In his complaint, plaintiff alleges a violation
of title I 8, United States Code, section 242, which makes it a crime for a person acting under color
of law to willfully deprive a person of a right or privilege protected by the Constitution or laws of
theUnitedStates. 18U.S.C.$242; Compl.atS-9;Hardinv.UnitedStates,2015WL6437379,at
*4(Fed. Cl. Oct.22,2015). But, it is well established that this Court does not possess jurisdiction
to adjudicate plaintiff s criminal law claim. Joshua, l'1 F.3d at 379. And so, the Court must also
dismiss plaintiff s criminal law claim for lack of subject-matter jurisdiction. RCFC 12(b)(1).
3. Plaintiff Fails To Identify A Money-Mandating Provision Of Law
Dismissal of plaintiff s complaint is also warranted because plaintiff has not identified any
money-mandating provisions of federal law that confer j urisdiction on this Court. In this regard, the
Tucker Act confers jurisdiction for this Cou( to entertain:
[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. $ 1a91(aX1). As discussed above, the Tucker Act 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." [Jnited states v. Testan, 424 U.S.392,398 (1976). Andso,tobringa
claim pursuant to the Tucker Act, plaintiff must show that the constitutional provisions, statutes, or
regulations upon which he relies are money-mandating. Fisher,402F.3dat1172.
ln this regard, plaintiff improperly relies upon the Emergency Medical Treatment and Active
Labor Act C'EMTALA), 42 U.S.C. $ l395dd, to establish jurisdiction. Compl. ar5,7; see 42
U.S.C. $ l395dd. In the complaint, plaintiff cites to section 1395dd(dx2) of the EMTALA-a
federal statute that ensures public access to emergency medical services regardless ofability to pay.
Roberts v. Galen of virginia, \nc.,525 U.S.249,250 (1999). While the provision cited by plaintiff
does permit private parties to bring civil claims for personal injury against a hospital that violates
the EMTALA, the EMTALA is not a money-mandating statute that creates a substantive right to
bring claims against the United States. See 42 U.S.C. $ 1395dd(dx2). And so, plaintiff cannot
properly rely upon this statute to establish this Court's jurisdiction over his claims' Testan,424
U.S. at 398.
Plaintiffalso cannot rely upon the cursory references to a constitutional violation in the
complaint to establish jurisdiction. Compl. at 1 , 10. In the complaint, plaintiff alleges, without
further explanation, a "violation of the patient's and spouse of the patients constitutional rights." 1d.
at l. Plaintiff also alleges a "taking ofproperty ordained by maniage;' Id.at 10. But, such fleeting
references to constitutional violations in the complaint are insufficient to establish this Court's
jurisdiction.
Indeed, it is well established that a constitutional claim must be a claim for money damages
against the United States to be cognizable under the Tucker Act. See Mitchell,463 U.S. at216; see
also Rick's Mushroom Serv., Inc. v. United States,521 F.3d 1338, 1343 (Fed. Cir' 2008)
(,,[p]laintiff must . . . identify a substantive source of law that creates the right to recovery of money
damages against the United States."). while the complaint does generally allege a violation of
constitutional rights, plaintiff fails to identify a specific, money-mandating provision of the
Constitution that would create a right to recover money damages against the United States in this
case. See generally Compl. Because ofthis failure, the Court must dismiss plaintiff s constitutional
claim for lack of subject-matter jurisdiction . See Fisher,402 F.3d at1173; Russell v. United States,
78 Fed. Cl. 281,285 (2007) ("plaintiff must establish more than the mere existence ofa statute or
constitutional provision to bring himself within the jurisdiction of this court")'6
C. Transfer Of Plaintiff s Complaint Is Not Appropriate
Transfer of this matter to a district court is also not warranted. Perhaps in anticipation of the
Court's determination that it does not possess jurisdiction to entertain his claims, plaintilfhas also
moved to transfer this matter to the United States District Court for the District of Columbia. See
generallyPl. Mot. Title 28, United States Code, section 1631, provides that:
Whenever a civil action is filed in a court as defined in section
610 of this title or an appeal, including a petition for review of
administrative action, is noticed for or filed with such a court
and that court finds that there is a want ofjurisdiction' the
court shall, if it is in the intercst ofjustice, transf'er such action
or appeal to any other such coutl in which the action or appeal
6 plaintiff alleges in the complaint that Adventist engaged in a 'laking of property ordained by, marriage."
Compl. at 10.1o the extent ihat this claim could be construed as a takings claim againsl the.United
States'
plainiifffails to identif any action on th€ part ofthe government that could constitute the alleged taking.
)do^, u. United Statei,3g l F.3d 1212, Itl 8 (Fed. Cir. 2004) ("A claimant under the Takings Clause must
public use without
show that the government, by some specific action, took a private property interest for a
just compensation.").
could have been brought at the time it was filed or noticed,
and the action or appeal shall proceed as if it had been filed in
or noticed for the court to which it is transfened on the date
upon which it was actually filed in or noticed for the court
fiom which it is transferred.
28 U.S.C. $ 1631. And so, transfer of this case to a district court would be appropriate if"(l) the
transferor court lacks jurisdiction; (2) the action could have been brought in the transferee court at
the time it was filed; and (3) transfer is in the interest ofjustice." Zoltek Corp. v. United States,672
F.3d 1309, 1314 (Fed. Cir.2012); see also spencer v. united states,98 Fed. Cl. 349, 359 (2011).
In addition, the United States Court ofAppeals for the Federal Circuit has held that the
phrase,,in the interest ofjustice" set forth in section 1631 "relates to claims which are
,,nonfrivolous and as such should be decided on the merits." Galloway Farms, Inc. v. United States,
834 F.2d 998, 1000 (Fed. Cir. 1987) (citation omitted). This Court has also held that the "decision
to transfer rests within the sound discretion ofthe transferor court, and the court may decline to
transfer the case '[i]fsuch transfer would nevertheless be futile given the weakness of plaintiffs case
on the merits."' spencer, g8 Fed. Cl. at 359 (quoting Fa ulkner v. IJnited States,43 Fed. CI 54, 56
(1ee9)).
In light ofthe above standards, the Court concludes that the transfer of this matter to the
United States District Court for the District of Columbia-or to any other district court-would not be
in the interest ofjustice, given the weakness of plaintiffs claims against the United States-
As
discussed above, a plain reading of the complaint makes clear that plaintiff does not allege any
wrongdoing on the part of the United states, or any federal govemment agency. see generally
Compl. Rather, plaintiff s claims are against Adventist Health System. /d. Because plaintiff
case to a
asserts no substantive claims against the United Sates in the complaint, a transfer of this
district court would be futile. See Faullcner,43 Fed. Cl. at 56. And so, the Court denies
plaintiff s
motion to transfer.?
also appear to
7
Transfer ofthis matter to the United States District Court for the District of Columbia would
be inappropriate, because plaintiff is a resident of Florida and all of his claims are based
upon events that
U.S.C. l39l(e)(l) (actions against the
occurred in the state of Florida. See generally Compl.' see also 28 $
;broughi in any judicial district in which (A) a defendant in the action
United States or its agencies may be
,".ia"r,