Baber v. United States

Case 1:15-cv-00543-MBH Document 8 Filed 06/12/15 Page 1 of 11
ORIGI AL
3Jn tbe Wniteb ~tates ~ourt of jfeberal ~laims
No. 15-543C
FILED
Filed: June 12, 2015
JUN 1 2 2015
* * * * * * * * * * * * * * * * U.S. COURT OF
* FEDERAL CLAIMS
MATTHEW LEE BABER,
*
Plaintiff, *
* ProSe Plaintiff; In Forma Pauperis
v. * Application; Lack of Subject Matter
* Jurisdiction.
*
UNITED STATES,
*
Defendant. *
* * * * * * * * * * * * * * * *
Matthew Lee Baber, Norlina, NC, pro se.
Melissa L. Baker, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for the defendant. With her were
Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Commercial Litigation Branch, Civil Division, Washington, D.C.
ORDER
HORN, J.
FINDINGS OF FACT
The plaintiff, Matthew Lee Baber, filed a pro se, handwritten complaint in this court
on May 27, 2015, and has since filed an application to proceed in forma pauperis.
Plaintiff's complaint, in the form of a letter addressed, "Dear, Clerk of Court," apparently
seeks review of a decision by the North Carolina Court of Appeals, which found that the
trial court did not abuse its discretion when it denied plaintiff's motion for a mistrial on the
charge of first-degree murder and arrested the judgment entered on the charge of
discharging a firearm into an occupied vehicle. Plaintiff states: "This letter is in concern to
my illegal conviction For the above mention case File." 1 As the plaintiff's letter of complaint
is very brief and contains few details, much of the findings of fact in this order are taken
from the North Carolina Court of Appeals decision, which was included as an exhibit with
1 Capitalization, grammar, and punctuation errors are quoted in this Order as they appear
in plaintiff's submissions.
Case 1:15-cv-00543-MBH Document 8 Filed 06/12/15 Page 2 of 11
Mr. Baber's complaint. According to the plaintiff, his conviction was based on an allegedly
prejudicial statement given by the State's witness, Elliott Simmons. In this court, Mr.
Baber claims violations of his rights under the Fifth, Sixth, and Fourteenth Amendments
to the United States Constitution.
According to a copy of the April16, 2013 North Carolina Court of Appeals decision,
submitted by Mr. Baber together with his complaint, on the evening of May 8, 2008, Mr.
Baber stated, in the presence of Mr. Simmons, Clint Gaines and Amanda Morgan, that
he "was going to get [Murdock] back for the way [Murdock] did to him." (alterations in
original). Mr. Baber got into Mr. Simmons' pickup truck, bringing his AK-47 assault rifle
with him. Mr. Baber spotted Mr. Murdock at a convenience store and had Mr. Simmons
follow him along the road back to Mr. Murdock's home. In front of Mr. Murdock's
residence, Mr. Baber fired bullets into Mr. Murdock's vehicle, striking Mr. Murdock in his
lower back and puncturing his right iliac artery, killing him. After returning to Mr. Gaines
and Ms. Morgan, Mr. Baber told Mr. Gaines that he had "got him ."
Mr. Baber was indicted for first-degree murder and for discharging a weapon into
an occupied vehicle . He was tried by jury in Brunswick County, North Carolina. During
the jury trial, the State called Mr. Simmons, who had made a plea bargain with the State.
Mr. Simmons admitted that he had initially been untruthful to law enforcement about the
incident before deciding to cooperate on the advice of his appointed counsel. Thereafter,
Mr. Simmons indicated he had opportunities to speak with law enforcement and was
asked during direct examination whether he had ever provided the police with a written
statement giving his account of the events of May 8, 2008. Mr. Simmons responded to
this question by stating, "I believe I did during a polygraph test."
At his trial in the North Carolina state court, Mr. Baber immediately objected to this
statement, and the jury was removed from the courtroom. Mr. Baber moved for a mistrial ,
claiming that the timing of Mr. Simmons' statement regarding the polygraph test, shortly
after the witness had explained his decision to provide truthful information to the police,
would give the jury the "mistaken impression" that Mr. Simmons had passed the
polygraph (which, according to plaintiff's brief on appeal, also submitted with plaintiff's
complaint in this court, Mr. Simmons had failed). Therefore, Mr. Baber claimed, his
defense would be prejudiced. Because the results of polygraph tests are inadmissible in
North Carolina, the trial court gave the jury a curative instruction to disregard Mr.
Simmons' reference to the polygraph testing. The trial court denied Mr. Baber's motion
for a mistrial on the grounds that Mr. Simmons' inadvertent reference to the polygraph
test did not directly indicate its result. At the close of the State's case, Mr. Baber renewed
his motion for a mistrial, which, again, was denied by the trial court. The jury found Mr.
Baber guilty of first-degree murder and guilty of discharging a weapon into an occupied
vehicle. The trial court entered judgment on both offenses. Mr. Baber was sentenced to
life imprisonment, with no possibility of parole.
Mr. Baber appealed the verdict to the North Carolina Court of Appeals, claiming
that the trial court abused its discretion when it denied his motion for a mistrial on the
murder charge and seeking the arrest of the separate judgment against him for
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discharging a weapon into an occupied vehicle. The North Carolina Court of Appeals
upheld the trial court's denial of Mr. Baber's motion for a mistrial, but granted Mr. Baber's
request to arrest judgment on the charge of discharging a weapon into an occupied
vehicle. With regard to the denial of Mr. Baber's motion for a mistrial, the court explained
that because Mr. Simmons' inadvertent statement regarding the polygraph was made in
the context of testimony in which he admitted lying to police several times during their
investigation before deciding to cooperate, it was not at all clear that the jury was left with
the inference that Mr. Simmons had in fact passed the polygraph test. Furthermore, the
court found that the trial court's curative jury instruction to disregard the single reference
to the polygraph test was sufficient to provide the defendant with a "fair and impartial trial. "
On the charge of discharging a weapon into an occupied vehicle, the appellate court held
that this lesser charge was properly merged into Mr. Baber's felony murder conviction ,
and arrested judgment on the separate sentence imposed for that charge by the trial
court, while leaving Mr. Baber's life sentence for felony murder undisturbed.
According to Mr. Baber's letter of complaint in this court:
The Plaintiff Prays that this Honorable Court will agree that Plaintiff 5th , 6th
and 14th Am to the U.S. Canst. was violated by both trial court and N.C.
Court of Appeals once you have examine the attached record .
Please File civil lawsuits against the State of North Carolina For the violation
of Trial Court err in bring up past record trial counsel never objected to error,
seen AT: TP : 860-862) said record was in violation of JUVENILE CODE 7B-
3000(F) as well as violated G.S.8C-1 Rule 404(b) . . .
The plaintiff concludes this letter with the following postscript: "P.S. I Look Forward
to hearing From your office on this Explicit legal matter."
The defendant filed a motion to dismiss Mr. Baber's complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of
Federal Claims (RCFC) (2014).
DISCUSSION
The court recognizes that plaintiff is proceeding pro se, without the assistance of
counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to
invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
pleadings. 2 See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations
contained in a prose complaint be held to "less stringent standards than formal pleadings
drafted by lawyers"), reh 'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007) ; Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429
U.S. 97, 106 (1976), reh 'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750
2 In his letter of complaint filed with this court, the plaintiff requests , "[w]herefore the
Plaintiff prays that his Letter of Complaint be construed AS liberal AS THE LAW
ALLOWS."
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F.3d 1320, 1322 (Fed . Cir. 2014) ; Diamond v. United States, 115 Fed. Cl. 516 , 524 , aff'd ,
2015 WL 527500 (Fed. Cir. Feb. 10, 2015), cert. denied 135 S. Ct. 1909 (2015).
"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 Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th
Cir. 1975))); see also Bussie v. United States, 96 Fed. Cl. 89, 94 , aff'd, 443 F. App'x 542
(Fed. Cir. 2011); Minehan v. United States, 75 Fed. Cl. 249 , 253 (2007) . "While a prose
plaintiff is held to a less stringent standard than that of a plaintiff represented by an
attorney, the pro se plaintiff, nevertheless, bears the burden of establishing the Court's
jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl. 163,
165 (2010) (citing Hughes v. Rowe, 449 U.S. 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."), reh'g and reh'g en bane denied (Fed. Cir. 2002)); see
also Shelkofsky v. United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may
excuse ambiguities in a pro se plaintiff's complaint, the court 'does not excuse [a
complaint's] failures ."' (quoting Henke v. United States, 60 F.3d 795, 799 (Fed. Cir.
1995)); Harris v. United States, 113 Fed . Cl. 290, 292 (2013) ("Although plaintiff's
pleadings are held to a less stringent standard, such leniency 'with respect to mere
formalities does not relieve the burden to meet jurisdictional requirements."' (quoting
Minehan v. United States 75 Fed. Cl. at 253).
It is well established that '"subject-matter jurisdiction, because it involves a court's
power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).
"[F]ederal courts have an independent obligation to ensure that they do not exceed the
scope of their jurisdiction, and therefore they must raise and decide jurisdictional
questions that the parties either overlook or elect not to press." Henderson ex rei.
Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also Gonzalez v. Thaler, 132
S. Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts
are obligated to consider sua sponte issues that the parties have disclaimed or have not
presented."); Hertz Corp. v. Friend, 559 U.S. 77, 94 (201 0) ("Courts have an independent
obligation to determine whether subject-matter jurisdiction exists, even when no party
challenges it. " (citing Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v.
OEA. Inc. , 269 F.3d 1340, 1342 (Fed . Cir. 2001) ("[A] court has a duty to inquire into its
jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W ..
Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)); View Eng'g, Inc. v. Robotic Vision Sys .. Inc.,
115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction ,
whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be
raised at any time, even by a party that once conceded the tribunal's subject-matter
jurisdiction over the controversy." Sebelius v. Auburn Reg'l Med . Ctr., 133 S. Ct. 817, 824
(2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal
court lacks subject-matter jurisdiction .. . may be raised by a party, or by a court on its
own initiative, at any stage in the litigation, even after trial and the entry of judgment.");
Cent. Pines Land Co. , L.L.C . v. United States, 697 F.3d 1360, 1364 n.1 (Fed . Cir. 2012)
("An objection to a court's subject matter jurisdiction can be raised by any party or the
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court at any stage of litigation, including after trial and the entry of judgment." (citing
Arbaugh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv .. Inc. v. United
States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court
may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh v. Y & H
Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g
and reh'g en bane denied (Fed. Cir. 2004) , cert. denied, 545 U.S. 1127 (2005); and
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United
States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011 ). In fact,
"[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where
... neither party has raised this issue." Metabolite Labs .. Inc. v. Lab. Corp. of Am .
Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods .. Inc. v. Mead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), reh'g denied and en bane suggestion declined (Fed. Cir.),
cert. denied, 525 U.S. 826 (1998)), reh'g and reh'g en bane denied (Fed. Cir. 2004), cert.
granted in part sub . nom Lab. Corp. of Am. Holdings v. Metabolite Labs .. Inc., 546 U.S.
975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid
Identification Sys .. Inc. v. Crystal Import Corp., 603 F.3d 967, 971 (Fed. Cir.) ("This court
must always determine for itself whether it has jurisdiction to hear the case before it, even
when the parties do not raise or contest the issue."), reh'g and reh'g en bane denied , 614
F.3d 1330 (Fed. Cir. 2010), cert. denied, 131 S. Ct. 909 (2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
only state in the complaint "a short and plain statement of the grounds for the court's
jurisdiction," and "a short and plain statement of the claim showing that the pleader is
entitled to relief." RCFC 8(a)(1 ), (2) (2014) ; Fed. R. Civ. P. 8(a)(1 ), (2) (2015); see also
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Bell Atl. Corp . v. Twombly, 550 U.S.
544, 555-57 , 570 (2007)). "Determination of jurisdiction starts with the complaint, which
must be well-pleaded in that it must state the necessary elements of the plaintiff's claim,
independent of any defense that may be interposed." Holley v. United States, 124 F.3d
1462, 1465 (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463
U.S. 1 (1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v.
United States, 97 Fed . Cl. 203, 208 (2011); Gonzalez-McCaulley lnv. Grp. , Inc. v. United
States, 93 Fed. Cl. 710, 713 (201 0). "Conclusory allegations of law and unwarranted
inferences of fact do not suffice to support a claim." Bradley v. Chiron Corp., 136 F.3d
1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel Corp ., 501 F.3d 1354, 1363
n.9 (Fed . Cir. 2007) (Dyk, J., concurring in part, dissenting in part) (quoting C. Wright and
A. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)). "A plaintiff's factual
allegations must 'raise a right to relief above the speculative level' and cross 'the line from
conceivable to plausible."' Three S Consulting v. United States, 104 Fed. Cl. 510, 523
(2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555), aff'd, 562 F. App'x 964 (Fed.
Cir.), reh'g denied (Fed. Cir. 2014). As stated in Ashcroft v. Iqbal, "[a] pleading that offers
'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will
not do.' 550 U.S. at 555. Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement."' Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. at 555) .
The Tucker Act grants jurisdiction to this court as follows:
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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 of Congress or any regulation of an 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. § 1491 (a)(1) (2012). As interpreted by the United States Supreme Court, the
Tucker Act waives sovereign immunity to allow jurisdiction 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 . See United States v. Navajo Nation, 556 U.S . 287,
289-90 (2009) ; United States v. Mitchell , 463 U.S. 206, 216 (1983); see also Greenlee
Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh 'g en bane denied
(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d
1310, 1314 (Fed. Cir. 1999).
"Not every claim invoking the Constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against the
United States .... "United States v. Mitchel!, 463 U.S. at 216; see also United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) ; Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), cert. denied , 134 S. Ct. 259 (2013); RadioShack Corp. v.
United States, 566 F.3d 1358, 1360 (Fed . Cir. 2009); Rick's Mushroom Serv. , Inc. v.
United States, 521 F.3d at 1343 ("[P]Iaintiff must . .. identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Golden
v. United States, 118 Fed . Cl. 764 , 768 (2014) . In Ontario Power Generation. Inc. v.
United States, the United States Court of Appeals for the Federal Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federal Claims. The court wrote:
The underlying monetary claims are of three types ... . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act's waiver . . . . Second, the Tucker Act's waiver
encompasses claims where "the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum."
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002 ,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
which 'the Government has the citizen 's money in its pocket'" (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) ... .
Third, the Court of Federal Claims has jurisdiction over those claims where
"money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury." Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the "particular provision
of law relied upon grants the claimant, expressly or by implication , a right to
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be paid a certain sum." k;L.; see also [United States v. JTestan, 424 U.S.
[392,] 401-02 [1976] ("Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis 'in itself ... can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained ."' (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a "money-mandating"
statute.
Ontario Power Generation . Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);
see also Twp. of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012) .
To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon '"can fairly be
interpreted as mandating compensation by the Federal Government."' United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392 , 400
(1976)); see also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United
States v. Mitchell , 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
Nation, 556 U.S. at 290 (The Tucker Act does not create "substantive rights; [it is simply
a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not
money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
should be for lack of subject matter jurisdiction."' Jan's Helicopter Serv., Inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed . Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
The plaintiff has asserted violations of his constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments to the United States Constitution, although Mr. Baber
has not alleged specific grounds for these claims in his letter of complaint. Regarding
plaintiff's claims for due process under the Fifth and Fourteenth Amendments, the United
States Court of Appeals for the Federal Circuit has held that this court does not possess
jurisdiction to consider claims arising under the Due Process Clauses of the Fifth and
Fourteenth Amendments. See Crocker v. United States, 125 F.3d 1475, 1476 (Fed. Cir.
1997) (citing LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995)) (no
jurisdiction over a due process violation under the Fifth and Fourteenth Amendments);
see also Smith v. United States, 709 F.3d 1114, 1116 (Fed. Cir.) ("The law is well settled
that the Due Process clauses of both the Fifth and Fourteenth Amendments do not
mandate the payment of money and thus do not provide a cause of action under the
Tucker Act." (citing LeBlanc v. United States, 50 F.3d at 1028), cert. denied, 134 S. Ct.
259 (2013)); In reUnited States, 463 F.3d 1328, 1335 n.5 (Fed. Cir.) ("[B]ecause the Due
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Process Clause is not money-mandating , it may not provide the basis for jurisdiction
under the Tucker Act."), reh'g and reh'g en bane denied (Fed . Cir. 2006), cert. denied sub
nom. Scholl v. United States, 552 U.S . 940 (2007) ; Acadia Tech .. Inc. & Global Win Tech ..
Ltd . v. United States. 458 F.3d 1327, 1334 (Fed. Cir. 2006) ; Collins v. United States, 67
F.3d 284, 288 (Fed. Cir.) ("[T]he due process clause does not obligate the government to
pay money damages."), reh'g denied (Fed. Cir. 1995); Mullenberg v. United States, 857
F.2d 770, 773 (Fed . Cir. 1988) (finding that the Due Process clauses "do not trigger
Tucker Act jurisdiction in the courts"); Murray v. United States, 817 F.2d 1580, 1583 (Fed.
Cir. 1987) (noting that the Fifth Amendment Due Process clause does not include
language mandating the payment of money damages); Harper v. United States, 104 Fed .
Cl. 287, 291 n.5 (2012); Hampel v. United States, 97 Fed . Cl. 235 , 238 , aff'd , 429 F. App 'x
995 (Fed. Cir. 2011 ), cert. denied, 132 S. Ct. 1105 (2012); McCullough v. United States,
76 Fed. Cl. 1, 4 (2006), appeal dismissed, 236 F. App'x 615 (Fed. Cir.), reh'g denied (Fed.
Cir.), cert. denied , 552 U.S. 1050 (2007) ("[N]either the Fifth Amendment Due Process
Clause .. . nor the Privileges and Immunities Clause provides a basis for jurisdiction in
this court because the Fifth Amendment is not a source that mandates the payment of
money to plaintiff."). Due process claims "must be heard in District Court." Kam-Aimaz v.
United States, 96 Fed. Cl. 84, 89 (2011) (citing Acadia Tech .. Inc. & Global Win Tech.,
Ltd . v. United States, 458 F.3d at 1334), aff'd, 682 F.3d 1364 (Fed . Cir. 2012); see also
Hampel v. United States, 97 Fed. Cl. at 238. Therefore , to the extent that plaintiff is
attempting to allege Due Process violations, no such cause of action can be brought in
this court.
Similarly, insofar as plaintiff's claims allege a violation of his rights under the Sixth
Amendment to the United States Constitution, this Amendment is not money-mandating
and, therefore, jurisdiction to review these claims does not lie in this court. See Dupre v.
United States, 229 Ct. Cl. 706, 706 (1981) ("[T]he fourth and sixth amendments do not in
themselves obligate the United States to pay money damages; and, therefore, we have
no jurisdiction over such claims ."); Turpin v. United States, 119 Fed . Cl. 704 , 707 (2015)
("To the extent that Ms. Turpin's complaint brings constitutional challenges under the Due
Process Clause and the Sixth Amendment, the Court cannot hear such claims because
neither of these constitutional provisions is a money-mandating source.") ; Gable v. United
States, 106 Fed . Cl. 294, 298 (2012) ("[T]he United States Court of Federal Claims does
not have jurisdiction to adjudicate the alleged violations of Plaintiff's Sixth Amendment
rights, because that constitutional provision is not money-mandating.") ; Treece v. United
States, 96 Fed . Cl. 226, 231 (201 0) (citing Milas v. United States, 42 Fed. Cl. 704 , 710
(1999) (finding that the Sixth Amendment is not money-mandating)); Smith v. United
States, 51 Fed . Cl. 36 , 38 (2001) (internal citations omitted) (finding that the Court of
Federal Claims lacks jurisdiction over Sixth Amendment ineffective assistance of counsel
claims), aff'd, 36 F. App'x 444 (Fed. Cir.), reh'g denied (Fed. Cir.), cert. denied, 537 U.S.
1010 (2002) .
Moreover, although the plaintiff's complaint is difficult to follow and contains few
details, it appears that all of plaintiff's claims are made against the courts of the State of
North Carolina. Indeed, plaintiff's complaint begins: ''Re: N.C. Court of appeals No.
COA 12-1121 From Brunswick County File No (S) 08-crs52858 10-crs-3751 [.]"The United
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States Supreme Court has indicated that for suits filed in the United States Court of
Federal Claims and its predecessors, "[i]f 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. Sherwood , 312 U.S. 584, 588 (1941) (citation omitted). Stated differently,
"the only 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) (emphasis in original); see also United States v. Sherwood, 312 U.S. at 588. As
none of plaintiff's claims are made against the United States, this court lacks jurisdiction
over his complaint. The court does not have jurisdiction over plaintiff's grievances against
the State of North Carolina or its public institutions. See Souders v. S.C. Pub. Serv. Auth.,
497 F.3d 1303, 1308 (Fed. Cir. 2007); Reid v. United States, 95 Fed. Cl. 243, 248 (201 0)
("The Court of Federal Claims does not have jurisdiction to hear plaintiff's claims naming
states, localities, state government agencies, local government agencies and private
individuals and entities as defendants."); Woodson v. United States, 89 Fed. Cl. 640, 649
(2009) (citing Shalhoub v. United States, 75 Fed. Cl. 584, 585 (2007)). Only the United
States Supreme Court may review the decisions of state courts, and the Supreme Court
may only do so after a state's highest court has rendered a final decision. See 28
U.S.C . § 1257 (2012) ("Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the Supreme Court by writ
of certiorari .... "); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983); Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923); see also Mora v. United
States, 118 Fed. Cl. 713, 716 (2014) ("[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."); Jiron v. United States, 118 Fed. Cl. 190, 200 (2014) (citing
Johnson v. Way Cool Mfg., L.L.C., 20 F. App'x 895, 897 (Fed. Cir. 2001)). Thus, this court
lacks jurisdiction over plaintiff's claims.
Furthermore, the limited jurisdiction of this court does not include the power to
review criminal convictions. See Joshua v. United States, 17 F.3d 378, 379 (Fed. Cir.
1994); Lott v. United States, 11 Cl. Ct. 852, 852-53 (1987); see also Cooper v. United
States, 104 Fed. Cl. 306, 312 (2012) While this court may adjudicate claims for damages
arising from unjust convictions overturned by other courts, as provided by 28 U.S.C. §
1495, Mr. Baber cannot bring such a claim, because no court has yet reversed or set
aside his felony-murder conviction, nor has he attached a pardon or certificate of
innocence, as is required to sustain a claim under§ 1495. See 28 U.S.C. §2513 (2012);
Abu-Shawish v. United States, No. 14-947C, 2015 WL 2195187, at *1-2 (Fed. Cl. May 8,
2015); Humphrey v. United States, 52 Fed . Cl. 593, 596 (2002), aff'd, 60 F. App'x 292
(Fed. Cir. 2003).
The court notes that this plaintiff, previously, has filed a number of suits in federal
district and appellate courts alleging violations of his constitutional rights arising from his
incarceration, all of which have been dismissed or have otherwise lapsed. See, e.g.,
Order, In re Baber, No. 13-1917, at 1 (4th Cir. Sept. 10, 2013) (dismissing for failure to
prosecute); Order, Baber v. Daniels, No. 5: 13-HC-2135-BO, at 1 (E. D.N.C. Nov. 6, 2013)
(dismissing for failure to pay the filing fee or complete an application to proceed in forma
pauperis); Order, Baber v. Brunswick Cnty. Det. Ctr., No. 5:11-CT-3213-FL, at 1
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Case 1:15-cv-00543-MBH Document 8 Filed 06/12/15 Page 10 of 11
(E.D.N.C. Sept. 17, 2012) (dismissing for failure to timely amend the complaint); Order,
Baber v. Brunswick Cnty. Jail, No. 5:11-MC-67, at 1 (E.D.N.C. Oct. 6, 2011) (returning
plaintiff's complaint, which was never amended and resubmitted, for failure to comply with
local procedural rules).
Initially, plaintiff did not pay the filing fee or file an application to proceed in forma
pauperis when he submitted his complaint. After a copy of the application was mailed to
him by the Clerk's Office, plaintiff subsequently did submit an application to proceed in
forma pauperis on June 9, 2015, asserting that he is unable to pay the required filing fees ,
and requesting waiver of court costs and fees. His application indicates that he is
presently incarcerated, and, as is required by 28 U.S.C. § 1915(a)(2) (2012), Mr. Baber
has included a trust fund account statement covering the six-month period prior to the
filing of his complaint along with his application. Mr. Baber, however, indicates that he is
presently employed and paid $46.08 per month, "but not always the same every month."
Mr. Baber also indicates he receives "$70.00 a month from my aunt. And sometimes from
a women friend."
In order to provide access to this court to those who cannot pay the filing fees
mandated by RCFC 77.1 (c) (2014), the statute at 28 U.S.C. § 1915 permits a court to
allow plaintiffs to file a complaint without payment of fees or security under certain
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 in forma pauperis is left to the discretion of the presiding judge, based
on the information submitted by the plaintiff or plaintiffs. See,~. Rowland v. Cal. Men's
Colony, Unit II Men's Advisory Council, 506 U.S. 194, 217-18 (1993); Fuentes v. United
States, 100 Fed. Cl. 85, 92 (2011 ). In Fiebelkorn v. United States, the United States Court
of Federal Claims indicated:
[T)he threshold for a motion to proceed in forma pauperis is not high: The
statute requires that the applicant be "unable to pay such fees ." 28 U.S.C.
§ 1915(a)(1 ). To be "unable to pay such fees" means that paying such fees
would constitute a serious hardship on the plaintiff, not that such payment
would render plaintiff destitute.
Fiebelkorn v. United States, 77 Fed . Cl. 59, 62 (2007); see also Hayes v. United States,
71 Fed. Cl. 366, 369 (2006). Although Mr. Baber's income level may qualify him for in
forma pauperis status, as discussed above, his complaint is being dismissed for lack of
jurisdiction.
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Case 1:15-cv-00543-MBH Document 8 Filed 06/12/15 Page 11 of 11
CONCLUSION
For the foregoing reasons, plaintiff's complaint is DISMISSED. The Clerk of the
Court shall enter JUDGMENT consistent with this Order.
IT IS SO ORDERED.
MARIAN BLANK HORN
Judge
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