Powers v. United States

3Jn tbe Wniteb ~tate.5 qcourt of jfeberal qcJaim.5
No. 14-760C FILED
(Filed: August 18, 2015)
AUG 18 2015
NOT FOR PUBLICATION U.S. COURT OF
FEDERAL CLAIMS
)
JOHN JAY POWERS, )
)
Plaintiff, ) Inmate Trust Fund; Inmate Financial
) Responsibility Program; Motion to
v. ) Dismiss; RCFC 12(b)(l); RCFC 12
) (b)(6); Subject-Matter Jurisdiction;
THE UNITED STATES, ) Statute of Limitations
)
Defendant. )
~~~~~~~~~)

John Jay Powers, Florence, CO, prose.

Daniel S. Herzfeld, Trial Attorney, with whom were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Reginald T.
Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington DC, for defendant. Marli J.P. Kerrigan,
Assistant General Counsel, Litigation Branch, Federal Bureau of Prisons, United States
Department of Justice, of counsel.

OPINION AND ORDER

CAMPBELL-SMITH, Chief Judge

Pending before the court is defendant's motion to dismiss plaintiffs amended
complaint for lack of jurisdiction under Rule 12(b)(l) of the Rules of the Court of Federal
Claims (RCFC) and for failure to state a claim upon which relief can be granted under
RCFC 12(b)(6). See Def.'s Mot., Mar. 30, 2015, Dkt. No. 20.

Plaintiff, an inmate at the United States Penitentiary, Administrative Maximum
Facility, in Florence, Colorado (ADX Florence), filed his amended complaint against the
United States, acting through the Bureau of Prisons (BOP), on February 2, 2015. 1 See
Am. Compl., Dkt. No. 11. Plaintiff alleges that: (1) the BOP wrongfully imposed
monetary sanctions against him as restitution for prison property he destroyed; (2) the
BOP mismanaged his inmate trust fund account; (3) the BOP coerced him into signing a
debt management agreement, known as a "50/50 Agreement;" (4) the BOP engaged in
other abusive debt collection practices; and (5) the BOP failed to afford him due process .
See id. iii! 3(B)-(H), 4-5, 6(B).

Plaintiff asserts that the BOP's conduct violated various statutes and regulations,
specifically 28 U.S.C. §§ 1321, 1322 (governing trust funds); 15 U.S.C. § 1692 (Fair
Debt Collection Practices Act (FDCPA)); 31 U.S.C. §§ 3701, 3711, 3716(e)(l) (Debt
Collection Improvement Act); and 28 C.F.R. § 11.4 (addressing Purpose and Scope,
Administration of Debt Collection). See id. iii! 2, 6(D), 6(G)-(I). Plaintiff asserts further
that the BOP breached its implied agreement to process payments intended for deposit
into plaintiffs trust fund account in a timely manner, see id. i! 6(A), and breached the
50150 Agreement "by failing to consolidate all legitimate or claimed debts" subject to it,
see id. ii 6(C).

Plaintiff also contends that the BOP violated his constitutional rights, in particular:
(1) his right to petition the government under the First Amendment, see id. i! 6(I); (2) his
right to due process under the Fifth Amendment, see id. i! 6(D); and (3) his right to relief
from the imposition of excessive fines under the Eighth Amendment, see id. iii! 6(E)-7.
Plaintiff complains that the BOP has acted in "bad faith and with malicious intent" by
fraudulently imposing debt on him. See id. i! 5.

Plaintiff seeks: ( 1) a preliminary injunction to "unencumber" the funds in his trust
fund account; (2) a declaratory judgment invalidating his debt; (3) certification of his
claim as a class action; (4) and monetary damages. See id. i! 7. As he brings his claim
without counsel, plaintiff asks the court to "allow or appoint" counsel. 2 See id.

In support of his claims, plaintiff attached a number of exhibits to his amended
complaint, including copies of: ( 1) an American Lawyer article discussing plaintiff and
other inmates at ADX Florence, see Dkt. No. 11 (pagination added), at 10-14; (2)

On August 21, 2015, plaintiff filed an Application to Proceed In F orma Pauperis.
See Dkt. No. 2. The application is GRANTED.
2
On July 9, 2015, the court issued an order "request[ing] plaintiffs consent to the
court's referral of this case to the Court of Federal Claims Bar Association Pro
Bono/Attorney Referral Pilot Program for the potential representation of plaintiff by
counsel," and directing plaintiff to file a notice of consent by July 22, 2015. See Dkt. No.
23. On August 7, 2015, the order was returned to the court as undeliverable.

2
plaintiffs inmate disciplinary record, see id. at 15; (3) a one-page excerpt from plaintiffs
"Acknowledgement oflnmate" form, see id. at 16; (4) various financial reports reflecting
plaintiffs trust fund account balances and transaction history, see id. at 17-19; and ( 5) a
copy of the 50/50 Agreement executed on April 26, 2011 by plaintiff and ADX Florence,
see id. at 20-22.

On March 30, 2015, defendant filed a corrected motion to dismiss plaintiffs
amended complaint pursuant to RCFC 12(b)(l) and 12(b)(6). See Def.'s Mot. Attached
to the motion were copies of: (1) plaintiffs public information/inmate data, dated
September 19, 2014, see id. at Al-A6; (2) plaintiffs inmate disciplinary record, see id. at
A 7-A26; (3) various financial reports reflecting plaintiffs trust fund account balances
and transaction history, see id. at Al-A7, A27-A38; (4) a copy of the 50/50 Agreement,
see id. at A39-A43; (5) a memorandum dated July 9, 2013 regarding encumbrances
placed on plaintiffs inmate trust fund account during his incarceration at a U.S. Medical
Center for Federal Prisoners, in Springfield, Missouri, see id. at A42-A44; (6)
documentation related to a claim plaintiff filed, and later withdrew, under the Federal
Torts Claim Act (FTCA), see id. at A52-A59; and (7) an ADX Florence Institution
Supplement regarding the Inmate 50/50 Program, see id. at A45-A5 l.

Plaintiff filed a response to defendant's motion to dismiss, see Resp. to Def.'s
Mot., April 18, 2015, Dkt. No. 21, and defendant replied, see Def.'s Reply, April 27,
2015, Dkt. No. 22, attaching a copy of the Trust Fund/Deposit Fund Manual dated May
29, 2014, see id., Attach. 1.

The court finds that it lacks jurisdiction over most of plaintiffs claims. The court
further finds that plaintiffs contract and takings claims fail to state a claim upon which
relief can be granted. Therefore, defendant's motion to dismiss is GRANTED, and
plaintiffs complaint is DISMISSED in its entirety.

I. Background 3

While serving time at ADX Florence, plaintiff maintains an inmate trust fund
account. See Am. Comp I. if 3(C). By statute, funds of federal prisoners are designated as
"trust funds." 31 U.S.C. § 132l(a)(21)-(22). The purpose of the trust fund is to serve as
a type of bank account into which inmates' families, friends, or other authorized sources
can make deposits. See 28 C.F.R. § 506.1. Inmate trust fund monies are appropriated
and disbursed in compliance with the terms of the trust set forth in the BOP's Trust
Fund/Deposit Fund Manual. See Trust Fund/Deposit Fund Manual, BOP Program

3
The facts recited in this section do not constitute findings by the court; rather,
unless otherwise noted, all of the stated facts are either undisputed or assumed to be true
for the purpose of the pending motion to dismiss.

3
Statement No. 4500.10 at 15. The BOP is responsible for managing and maintaining the
trust fund accounts. See id. at 15-16. At the discretion of the Warden or other authorized
source, an inmate may pay for merchandise and services at the prison commissary using
his or her trust fund account. See id. at 16. Inmate funds may be encumbered as a result
of a disciplinary hearing sanction or at the Warden's discretion. See id. at 71. Funds that
the Warden encumbers are released only upon the Warden's approval or upon an
inmate's release. See id.

To encourage inmates to meet their legitimate financial obligations, the BOP has
implemented the Inmate Financial Responsibility Program (IFRP). See BOP Program
Statement No. 5380.08 at 1. The IFRP allows federal facilities to assist inmates in
developing financial plans to meet their responsibilities. See id. In concert with that
program and in accordance with the terms of the Inmate Trust Fund/Deposit Fund
Manual, ADX Florence has implemented and administers a "50/50 Program." See Def s
Mot. at A45. The locally administered 50/50 Program allows the institution to collect
debts that the inmates owe to the government-but have not settled otherwise-because
they have failed either to remit payment or to maintain employment. See id. at A46.
Once the inmate enters into an agreement to participate in the 50/50 Program with the
facility, a payment system automatically encumbers half of the incoming funds received
by the inmate until the encumbered funds can be consolidated to pay off the debt. See id.
at A46-A47, A50. Under the terms of the 50/50 Agreement, "any new debts incurred for
any reason [after an inmate enters into the 50/50 Agreement] will not be considered a part
of [the executed] agreement and [thus] will need to be paid as incurred." See id. at A40.
Encumbered funds remain in the trust fund account until the inmate consents to their
withdrawal. See Trust Fund/Deposit Fund Manual at 87-88.

Inmate records show that a Disciplinary Hearing Officer (DHO) ordered plaintiff
to pay restitution for destroying government property (valued at more than $100), among
other offenses, between 2000 and 2014. See Am. Compl. ii 3(B); Defs Mot. at A7-A22.
As of April 26, 2011, plaintiff allegedly owed $8,498.06 to the government. 4 See Am.
Compl. ii 3(0). Plaintiff claims that the BOP imposed this debt without a "due process
hearing." See id. ii 7(A). Plaintiff adds that amount of debt the BOP imposed was
"false," including a $7,600 bill for restitution. See id. iiii 3(H)(l), 7(B). Plaintiff

4
From the information before the court it is unclear how much, if any, of the
$8,498.06 debt has been paid to the government at the time plaintiff filed this action.
Plaintiff contends that as of April 3, 2015, he is "due and ow[ ed]" an amount of
$1,226.29, ifthe court finds the encumbrance on his trust fund account to be unlawful.
See Resp. to Def. 's Mot. ii 4(1). Also unclear is whether plaintiff accrued any additional
debt after April 2011 and, if so, whether those debts are included in his claims here. In
any event, the court concludes that disposing of plaintiffs instant claims does not require
it to resolve these factual issues.

4
contends that the BOP "maliciously punish[ ed] plaintiff by depriving him of access to his
trust fund account," see id. ii 5(A), and violated his "Eighth Amendment Rights by using
an alleged debt as an instrument of punishment ... ," see id. ii 6(E).

In essence, plaintiff asserts that the BOP mismanaged his trust fund account and
"knowingly created unlawful impediments" to his use of the trust fund monies. See id.
ii 6(B). He complains that the BOP "coerce[d]" him into entering into the 50/50
Agreement with ADX Florence. See id. ii 3(F). Plaintiff also accuses the BOP of
breaching the 50/50 Agreement by failing to consolidate all legitimate or claimed debts,
see id. ii 6(C), and by failing to endorse and deposit funds into his trust fund account and
then failing to make those funds readily available to him, see id. ii 6(A).

Alleging that the BOP's effort to collect debt from him, and from others similarly
situated, is part of "a pattern of abusive practices" that violate various federal debt
collection statutes, see id. ilil 3(H), 6(G)-(H), plaintiff seeks class action certification of
the matter and demands equitable relief. See id. ii 7.

II. Subject-Matter Jurisdiction

The subject-matter jurisdiction of the United States Court of Federal Claims must
be addressed as a threshold matter because it defines the court's power to hear a case.
See PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed. Cir. 2007); McGrath v.
United States, 85 Fed. Cl. 769, 771 (2009). Subject-matter jurisdiction may be addressed
at any time by the parties, by the court sua sponte, or even on appeal, see Booth v. United
States, 990 F.2d 617, 620 (Fed. Cir. 1993), and the plaintiff bears the burden of
establishing jurisdiction, see Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377
(Fed. Cir. 1998). A plaintiff must establish jurisdiction by a preponderance of evidence.
See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988);
Alaska v. United States, 32 Fed. Cl. 689, 695 (1995).

As a general matter, complaints filed by pro se plaintiffs are held to "less stringent
standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,
520 (1972). Therefore, pleadings submitted by pro se plaintiffs to this court will be
liberally construed. See Cosma-Nelms v. United States, 72 Fed. Cl. 170, 172 (2006). For
claims brought by pro se plaintiffs, the court '"searches the record to see if [a] plaintiff
has a cause of action somewhere displayed."' Goel v. United States, 62 Fed. Cl. 804, 806
(quoting Boyle v. United States, 44 Fed. Cl. 60, 62 (1999), aff d 200 F.3d 1369 (Fed. Cir.
2000)). But, the court has "'no duty ... to create a claim which [the plaintiff] has not
spelled out in his pleading."' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)
(internal citations omitted). A pro se plaintiff is never relieved of his or her obligation to
satisfy jurisdictional requirements. See Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d
1378, 1380 (Fed. Cir. 1987). If the court determines it does not have subject-matter
jurisdiction, it must dismiss the action. See RCFC 12(h)(3).

5
 The Tucker Act is the primary source of jurisdiction for this court. See Taylor v.
United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). The Act provides that this court
shall have the authority to resolve "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.
§ 149l(a)(l). "The Tucker Act does not, however, provide a substantive right to relief
and, standing alone, is insufficient to grant jurisdiction to this court." Riser v. United
States, 93 Fed. Cl. 212, 216 (2010) (citing Martinez v. United States, 333 F.3d 1295,
1302-03 (Fed. Cir. 2003) (en bane)). "The plaintiff must identify a separate contract,
regulation, statute, or constitutional provision, which, if violated, provides for a claim of
money damages against the United States." Smith v. United States, 495 F. App'x 44, 47
(Fed. Cir. 2012) (unpublished per curiam). Thus, "not every claim invoking the
Constitution, a federal statute, or a regulation is cognizable under the Tucker Act."
United States v. Mitchell, 463 U.S. 206, 216 (1983).

In this case, plaintiff refers to 28 U.S.C. § 1346(a)(2) as the basis for this court's
jurisdiction over his claims. 5 See Am. Compl. ~ 2. Also known as the "Little Tucker
Act," this provision provides that the district courts share jurisdiction with the Court of
Federal Claims over:

Any other civil action or claim against the United States, not exceeding
$10,000 in amount, 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, except that the
district courts shall not have jurisdiction of any civil action or claim
against the United States founded upon any express or implied contract
with the United States or for liquidated or unliquidated damages in cases
not sounding in tort which are subject to sections 7104(b)(l) and
7107(a)(l) of title 41.

28 U.S.C. § 1346(a)(2).

Like the Tucker Act, a plaintiff proceeding under the Little Tucker Act must still
invoke a separate money-mandating source of substantive law to support jurisdiction.

5
Plaintiff also invokes, among other cases, Gravatt v. United States, 100 Fed. Cl.
279 (2011 ), as a one of the jurisdictional bases for his claims. However, as explained
above, this court's jurisdiction is not derived from case law, but from the Tucker Act, 28
U.S.C. § 1491.

6
See Fisher v. United States, 402 F.3d 1167, 1172 (2005) ("The Tucker Act itself does not
create a substantive cause of action; in order to come within the jurisdictional reach and
the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive
law that creates the right to money damages.").

The jurisdiction of this court is further limited by a six-year statute of limitations.
See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008). The
statute of limitations provides that claims over which the Court of Federal Claims would
otherwise have jurisdiction "shall be barred unless the petition thereon is filed within six
years after such claim first accrues." See 28 U.S.C. § 2501. Under the Tucker Act, a
claim accrues "when 'all events have occurred to fix the Government's alleged liability,
entitling the claimant to demand payment and sue ... for his [or her] money."' Martinez,
333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl.
1966)).

Lastly, the court may grant injunctive and declaratory relief under a narrow set of
circumstances only. See 28 U.S.C. § 149l(a)(2)-(b)(2) (vesting the court with power, on
behalf of military personnel, to "issue orders directing restoration to office or position,
placement in appropriate duty or retirement status, and correction of applicable records,
and such orders may be issued to any appropriate official of the United States," and
permitting the court to grant declaratory and injunctive relief in actions involving
government contract solicitations). Otherwise, the court is unable to grant such relief.

As explained in further detail below, the court finds that plaintiffs complaint
contains claims over which this court does not have jurisdiction.

A. The Court Lacks Subject-Matter Jurisdiction over Most of Plaintiffs
Constitutional Claims

Plaintiff contends that the BOP "violated [his] First Amendment right to access the
courts." See Am. Compl. if 6(1). This right is derived from the Petition Clause of the
First Amendment, which protects the "[r]ight of people ... to petition the government
for redress of grievances." U.S. Const. amend. I; see also Bill Johnson's Rests . Inc. v.
NLRB, 461 U.S. 731 (1983); accord Borough of Duryea v. Guarnieri, 131 S. Ct. 2488,
2494 (2011) ("' [T]he Petition Clause protects the rights of individuals to appeal to courts

7
and other forums established by the government for resolution of legal disputes."')
(citations omitted). 6

The court is without jurisdiction to hear plaintiffs constitutional claim for court
access under the First Amendment. Although the Petition Clause of the First Amendment
affords access to the court, it does not provide for the payment of money. See May v.
United States, 534 F. App'x. 930, 933 (Fed. Cir. 2013) ("[T]he Petition Clause of the
First Amendment . . . do[ es] not mandate the payment of money by the government for
violations.") (unpublished per curiam). Thus, plaintiffs First Amendment claim must be
DISMISSED for lack of jurisdiction.

Plaintiff also claims that the BOP violated his due process rights under the Fifth
Amendment by failing to process his debt in accordance with federal regulations and
statutory provisions. The court, however, has no jurisdiction to hear this claim because
the Due Process Clause is not money-mandating. See Carruth v. United States, 627 F.2d
1068, 1081 (Ct. Cl. 1980) (court has no jurisdiction over claims under Due Process
Clause of Fifth Amendment because that constitutional provision does not obligate
Federal Government to pay money damages). Accordingly, plaintiffs due process claim
under the Fifth Amendment must be DISMISSED for lack of jurisdiction.

Plaintiff further claims that the BOP violated his rights under the Eighth
Amendment by "using an alleged debt as an instrument of punishment" against him. See
Am. Compl. if 6(E). The Eighth Amendment prohibits the government from imposing
excessive fines and from inflicting "cruel and unusual punishment," U.S. Const. amend.
VIII, but it does not mandate the payment of money, see Trafny v. United States 503
F.3d 1339, 1340 (Fed. Cir. 2007). Thus, the court lacks jurisdiction over plaintiffs claim
brought under the Eighth Amendment, and it too must be DISMISSED for lack of
jurisdiction.

6 For inmates, such as plaintiff, the right of access to the courts also derives from
the Equal Protection Clause of the Fourteenth Amendment. See Bounds v. Smith, 430
U.S. 817 (1977) (affirming the district court's grant of summary judgment on the grounds
that the State was denying inmates reasonable access to the courts and equal protection of
the laws as guaranteed by the First and Fourteenth Amendments). However, the Equal
Protection Clause of the Fourteenth Amendment does not provide for the payment of
money, see LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that
the equal protection guarantees of the Fourteenth Amendment do not mandate the
payment of money damages by the government), and the court cannot exercise
jurisdiction over such claims.

8
 B. The Court Lacks Subject-Matter Jurisdiction over Plaintiffs Various
Claims of Statutory Violations

Plaintiff alleges that the BOP imposed debt and placed encumbrances on his trust
account in violation of debt collection statutes. See Am. Compl. ii 7. Because
jurisdiction to hear claims founded upon the Fair Debt Collection Practices Act (FDCP A)
rests with district courts, this court cannot hear them. See 15 U.S.C. § 1692k(d)
(providing for civil remedies under the FDCPA in federal district court); Cox v. United
States, 105 Fed. Cl. 213, 218 (2012) ("[T]he Court of Federal Claims is not a [federal]
district court."); see also Wagstaffv. United States, 105 Fed. Cl. 99, 100 (2012)("[B]oth a
federal district court and a federal appellate court have ruled that the United States has
not waived its sovereign immunity with respect to [FDCPA] claims."); accord Wagstaff
v. U.S. Dept. of Educ., 509 F.3d 661, 663-64 (5th Cir. 2007) (construing 15 U.S.C. §
1692a(6)(C) as neither "unequivocally nor expressly waiving the Federal Government's
sovereign immunity"). 7 Accordingly, plaintiffs FDCPA claims must be DISMISSED
for lack of jurisdiction.

The court also finds that it has no jurisdiction over plaintiffs asserted claims
under the various debt collection provisions set forth in the Debt Collection Improvement
Act. See Am. Compl. ii 8. Among the various statutory provisions plaintiff invokes are:
( 1) section 3701 which enumerates the definitions and applications of debt procedures;
(2) section 3 702 which vests authority in various government officials to settle and adjust
claims; (3) section 3711 which pertains to collection and compromise procedures for
claims; and (4) section 3716 which provides for administrative offset. See 31 U.S.C. §
3711 et~· Because none of these provisions mandate the payment of money as would
be required for this court to exercise jurisdiction over these claims, see McNeil v. United
States, 78 Fed. Cl. 211, 223-24 (2007), aff d, 293 F. App'x 758 (Fed. Cir. 2008)
(unpublished per curiam), they must be DISMISSED for lack of jurisdiction.

C. The Court Lacks Subject-Matter Jurisdiction to Hear Plaintiffs Claims
Sounding in Tort

Plaintiff claims that: ( 1) the BOP engaged in a "pattern of abusive practices" to
collect debt from him; (2) the BOP acted in "bad faith and with malicious intent" toward
him; and (3) the BOP coerced him into entering a payment plan pursuant to the executed
50/50 Agreement. See Am. Comp. iiii 3(H), 3(H)(7), 5. Plaintiff also claims that the
BOP imposed upon him responsibility for false debt and fraudulent restitution bills and
then "manipulat[ ed] Trust Fund Procedures in order to benefit third-party contractors."

7
Moreover, any officer or employee of the United States or any State collecting or
attempting to collect any debt in the performance of his official duties is not a "debt
collector" under the FDCPA. See 15 U.S.C. § 1692a(6)(C).

9
See id. i-Ji-13(H)(l ), 7(1). The court construes these allegations as claims for wrongful
conduct and fraud.

Plaintiff also complains that the BOP "plac[ ed] liens, restrictions, and
'encumbrances' on [his] trust fund account[]," see id. i13(H)(4), and then stopped "all
account activity except deposits," see id. i1 3(E). Plaintiff further complains that the BOP
"breached an implied contract" by failing to make timely deposits into his trust fund
account and by failing to make those account funds promptly available for his personal
use. See id. i1 6(A). The court construes these allegations as claims for account
mismanagement and for breach of fiduciary duty.

Claims of negligence, wrongful conduct, coercion, or fraud that arise from the
discharge of duties by a government officer sound in tort. See Cottrell v. United States,
42 Fed. Cl. 144, 149 (1998); see also Edelmann v. United States, 76 Fed. Cl. 378, 381
(2007) ("Plaintiffs' claims of ... coercion ... are tort claims."); accord De-Tom Enters.
Inc, v. United States, 213 Ct. Cl. 362, 370-71 (1977). Claims that the BOP breached a
fiduciary duty owed to plaintiff as to the administration and management of his trust fund
also sound in tort. See Spencer v. United States, 98 Fed. Cl. 349, 357 (2011); see also
Regents of the Univ. of N.M. v. Knight, 321 F.3d 1111, 1116 (Fed. Cir. 2003); McNeil,
78 Fed. Cl. at 236.

This court has no jurisdiction to hear tort claims. See Rick's Mushroom Serv.,
Inc. v. United States, 521F.3d1338, 1343 (Fed. Cir. 2008); see also 28 U.S.C.
§1491(a)(l) (excluding claims "sounding in tort" from the Court of Federal Claim's
jurisdiction). Because plaintiffs claims of wrongful conduct, fraud, coercion, account
mismanagement, and breach of fiduciary duty all sound in tort, they must be
DISMISSED for lack of jurisdiction.

D. The Court Lacks Subject-Matter Jurisdiction over Plaintiffs Requests for
Equitable Relief

Plaintiff asks the court to issue a preliminary injunction to "unencumber" the
money in his trust fund account and to issue a declaratory judgment that defendant is
without "authority to make up its own rules as to how debt(s) will be collected." See
Am. Compl. i17, 7(E). The court may grant equitable relief only under a narrow set of
circumstances. See 28 U.S.C. § 149l(b)(2); see also First Hartford Corp. Pension Plan &
Tr. v. United States, 194 F.3d 1279, 1294 (Fed. Cir. 1999). Because plaintiff requests for
equitable relief do not fall within this set of narrow circumstances, such requests must be
DISMISSED for lack of jurisdiction.

10
 E. Plaintiff's Request for the Resolution of Claims More Than Ten Years Old
Is Time-Barred

Plaintiff asks the court to find that his $7 ,600 restitution bill is fraudulent and that
the debt he allegedly accrued between 2000 and 2005 is "null and void." See Am.
Compl. ~ 7(B), (H). The parties' filings indicate that the circumstances giving rise to
these claims occurred nearly ten years ago. See id.; Def. 's Mot. at Al 8. Because the
statute of limitations for claims in this court is six years, the court is without jurisdiction
to hear these claims, see John R. Sand & Gravel Co., 552 U.S. at 133-34 (2008), and they
must be DISMISSED.

III. Failure to State a Claim Upon Which Relief Can Be Granted

For a plaintiff to overcome a RCFC 12(b )(6) motion, plaintiff's "complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept the facts alleged in
the complaint as true and draw inferences from the facts in the light most favorable to
plaintiff. See Hornbeck v. United States, 601F.3d1382, 1384 (Fed. Cir. 2010). A
motion under RCFC l 2(b )( 6) calls into question the legal theory of the complaint; not the
sufficiency of the evidence. See Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys.
Inc., 988 F.2d 1157, 1160 (Fed. Cir. 1993). The court must dismiss a claim ifthe facts,
accepted as true, would nonetheless not entitle a party to a legal remedy. See RCFC
12(b)(6); Lindsey v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).

Plaintiff alleges that the BOP's failure to consolidate his debts under the 50/50
Agreement was a breach of contract. See Am. Compl. ~ 6(C); Resp. to Def.'s Mot.~
4(F). Plaintiff adds that the BOP "breached an implied contract" by failing to make
timely deposits into his trust fund account and by failing to make those funds readily
available to him for his personal benefit. See Am. Compl. ~ 6(A).

The Tucker Act confers on this court jurisdiction to hear claims against the United
States that are founded upon "express or implied" contracts with the United States. 28
U.S.C. § 149 l(a)(l ). To state a claim for breach of an implied-in-fact contract, a plaintiff
must plead the following four elements: "(I) mutuality of intent to contract; (2)
consideration; (3) lack of ambiguity in offer and acceptance; and (4) actual authority in
the government representative to bind the government." Barrett Ref. Corp v. United
States, 242 F.3d 1055, 1060 (Fed. Cir. 2001). A well-pleaded, non-frivolous allegation of
an express or implied-in-fact contract in a complaint is sufficient to survive a
jurisdictional challenge. See Spruill v. Merit Sys. Prot. Bd., 978 F.2d 679, 686 (Fed. Cir.
1992); see also Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1353 (Fed. Cir. 1997).

11
 To the extent plaintiff asserts a breach of contract claim (whether implied or
express), he fails to state a claim upon which relief can be granted. The various forms
and payment agreements (including the 50/50 Agreement)-upon which plaintiff relies to
support his contract claims are part of a broader administrative and statutory scheme
governing his inmate trust fund account. See Def.'s Reply, Attach. 1, at 16; see also
Dudley v. United States, 61 Fed. Cl. 685, 688 (2004) ("The court agrees with the
government that withdrawals from plaintiffs prison account are regulated by statute not
by contract."). This scheme provides that the relationship between the two parties is not
a contractual one; rather, the trust accounts constitute a "privilege" subject to the
limitations imposed by the BOP. See Trust Fund/Deposit Fund Manual at 16. Because
the trust is automatically established for each inmate while he or she is held within a
prison facility under the custody of the United States Attorney General or an appropriate
designee, the contractual elements of offer, acceptance, and consideration do not exist.
Cf. Am. Compl. 16 (copy of an "Acknowledgement of Inmate" form attached by plaintiff
to his amended complaint, authorizing the Director of the BOP or a designee to endorse
all checks, money orders, bank drafts, or other forms of negotiable instruments on
plaintiffs behalf). In the absence of a contract, an allegation of breach of contract cannot
be maintained. Accordingly, plaintiff has failed to state a breach of contract claim upon
which relief can be granted.

To the extent plaintiff has asserted a takings claim under the Takings Clause of the
Fifth Amendment-as defendant suggests-plaintiff also fails to state a claim upon
which relief can be granted. Defendant argues that plaintiff asserts a takings claim by
alleging that his trust fund account has been encumbered. See Def.' s Mot. 11; Am.
Compl. iii! 3(H)(4), 5(C). The Takings Clause of the Fifth Amendment prohibits the
taking of private property "for public use, without just compensation." See U.S. Const.
amend. V. Even if the court were to find that an encumbrance on plaintiffs trust fund
account constitutes property, such property was not "taken" for public use, as is required
under the takings clause. See id.; see also Def.'s Mot. at 11-12. Accordingly, plaintiff
has failed to state a takings claim upon which relief can be granted.

Defendant also argues that plaintiff has alternatively asserted an illegal exaction
claim under the Takings Clause of the Fifth Amendment. This court has been recognized
to have jurisdiction over illegal exaction claims "when the exaction is based upon an
asserted statutory power," see Aerolineas Argentinas v. United States, 77 F.3d 1564,
1573 (Fed. Cir. 1996); see also Eastport S.S. Corp. v. United States, 372 F.2d 1002, 1008
(Ct. Cl. 1967) (finding that the Court of Claims had jurisdiction over exaction "based
upon a power supposedly conferred by a statute") (citation omitted), and where that the
statutory provision giving rise to the alleged exaction provides, either expressly or by
necessary implication, for money damages, see Norman v. United States, 429 F.3d 1081,
1095 (Fed. Cir. 2005) (citation and quotations omitted). Because the court has held that
the debt collection statutes upon which plaintiff relies are not money-mandating, plaintiff
has failed to state an illegal exaction claim upon which relief can be granted

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IV. Transfer of this Case Is Not in the Interest of Justice

Having determined that plaintiffs claims must be dismissed, the court now
considers whether it is in the interest of justice to transfer plaintiffs complaint to a
district court. See 28 U.S.C. § 1631 ("[T]he court shall, ifit is in the interest of justice,
transfer such action ... to any other such court in which the action ... could have been
brought at the time it was filed or noticed."); 28 U.S.C. § 610 (defining "courts" to
include, among other things, "district courts of the United States, ... [and] the United
States Court of Federal Claims"); see also Tex. Peanut Farmers v. United States, 409 F.3d
1370, 1374-75 (Fed. Cir. 2005) (stating that the Court of Federal Claims should consider
whether transfer is appropriate once the court has determined it lacks jurisdiction). A
transfer may be in the interest of justice when the filed claims are non-frivolous and
should be decided on the merits. See Galloway Farms, Inc. v. United States, 834 F.2d
998, 1000 (Fed. Cir. 1987). But, even if a claim is non-frivolous, a court still may
decline to transfer a case "[i]f such transfer 'would nevertheless be futile given the
weakness of plaintiffs case on the merits."' Spencer 98 Fed. Cl. at 359 (quoting
Faulkner v. U nited States, 43 Fed. Cl. 54, 56 (1999)). The court finds that transferring
plaintiffs constitutional and statutory claims would be futile given their weakness on the
merits.

In addition, transferring plaintiffs torts claims to district court would be futile.
See 28 U.S.C. § 2675(a) ("An action shall not be instituted upon a claim against the
United States for money damages for injury or loss of property ... caused by the
negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, unless the claimant shall first have
presented the claim to the appropriate Federal agency and his claim shall have been
finally denied by the agency in writing and sent by certified or registered mail."); 28
C.F.R. § 543.30-.32 (administrative procedure for inmate claims under the Federal Tort
Claims Act (FTCA)). Plaintiff filed his FTCA claim with the BOP's Northwest Regional
Office in November 2007, see Def.'s Mot. A52-56, but then withdrew the claim in March
2008, see id. at A57-58. Because plaintiffs claim was not "finally denied" in accordance
with FTCA exhaustion requirements, it is not in the interest of justice to transfer his tort
claims to a district court.

V. Conclusion

For the foregoing reasons, the court finds that it lacks jurisdiction over most of
plaintiffs claims, specifically: the constitutional claims, the claims alleging statutory
debt collection violations, the claims sounding in tort, and the requests for equitable
relief. As to plaintiffs remaining claims, the court finds that plaintiff has failed to state a
claim upon which relief can be granted, specifically: plaintiff has not stated a claim for
breach of contract (whether implied or express), nor has plaintiff stated a claim for a
taking or illegal exaction under the Fifth Amendment. Moreover, the court does not find

13
that transfer of plaintiffs complaint is in the interest of justice. Defendant's motion to
dismiss is GRANTED, and plaintiffs complaint is DISMISSED in its entirety.
Plaintiffs application to proceed in forma pauperis is GRANTED. Plaintiffs request for
the appointment of counsel is DENIED AS MOOT. The Clerk of Court shall enter
judgment for defendant. No costs.

IT IS SO ORDERED.

\iiW61 ~ t~rttfr'tn
Chief Judge

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