Kraft v. United States

3Jn tbe Wniteb ~tates
RI Q'.Court
I Al of eberal Q'.Claims
jf
No. 15-697C
Filed November 25, 2015 FILED
NOT FOR PUBLICATION
NOV 2 5 2015
) U.S. COURT OF
GARRY C. KRAFT, ) FEDERAL CLAIMS
)
Plaintiff, )
) Pro Se; Rule 12(b)(l), Subject-Matter
V. ) Jurisdiction; Claims Against a Local
) Government; In Forma Pauperis;
THE UNITED STATES, ) Declaratory Judgment Act; Universal
) Declaration of Human Rights.
Defendant. )
~~~~~~~~~~~~~~~-
)

Garry C. Kraft, Atmore, AL, plaintiff prose .

Christopher K. Wimbush, Trial Attorney; Steven J Gillingham, Assistant Director; Robert
E. Kirschman, Jr., Principal Deputy Assistant Attorney General; Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

Plaintiff prose, Garry C. Kraft, brought this action alleging that the City of Mobile,
Alabama improperly demolished his residence and other structures that he owns, in violation of
the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment of the United
States Constitution. The government has moved to dismiss the complaint for lack of subject-
matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal
Claims ("RCFC"). Plaintiff has also moved to proceed in this matter informa pauperis. For the
reasons set forth below, the Court GRANTS defendant's motion to dismiss and GRANTS
plaintiffs motion to proceed in forma pauperis.

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 II. FACTUAL AND PROCEDURAL BACKGROUND 1

A. Factual Background

Plaintiff pro se, Garry C. Kraft, filed the complaint in this matter on July 6, 2015. See
generally Compl. In the complaint, plaintiff seeks a declaratory judgment finding that the City
of Mobile, Alabama improperly demolished his residence and other structures owned by
plaintiff, on or about July 16, 2011. Id. at 21. According to plaintiff, the City of Mobile
demolished his property because the property appeared to be "unsafe and dilapidated." Id. at 13.

Plaintiff further alleges that the City of Mobile failed to provide him with notice of the
demolition and, in doing so, violated his constitutional rights under the Fourth Amendment and
the Due Process Clause. Id. at 13-20. As relief, plaintiff seeks "Declaratory Judgment Relief
and or Declaration of Rights. [sic] Based on the Record on File within the Courts of the United
States." Id. at 21. Plaintiff also demands a jury trial. Id. at 22.

Plaintiff contends that this Court possesses subject-matter jurisdiction to consider his
claim pursuant to 28 U.S.C. § 1491; the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202;
and the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948).
Id. at 4. 2

B. Procedural Background

Plaintiff filed the complaint in this matter on July 6, 2015. See generally Compl. On the
same date, plaintiff filed a motion for leave to proceed informa pauperis, in which he requested

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The facts recounted in this Memorandum Opinion and Order aTe taken from plaintiff's complaint
("Compl. at_"); defendant's motion to dismiss ("Def. Mot. at_"); plaintiffs opposition thereto ("Pl.
Opp. at_"); defendant's reply ("Def. Rep. at_") and plaintiffs sur-reply ("Pl. Sur-Rep."). Except as
otherwise noted, the facts recited here are undisputed.
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Plaintiff's complaint relates back to a lawsuit that he previously and unsuccessfully pursued against the
City of Mobile in the United States District Court for the Southern District of Alabama. See Kraft v. City
of Mobile, No. 12-0590, 2013 WL 1389979 (S.D. Ala. March 12, 2013). Specifically, on August 24, 2012,
plaintiff filed a civil suit against the City of Mobile in the Circuit Court of Mobile County alleging that the
City of Mobile improperly demolished his residence. Id. at *I. Following the removal of that case to the
United States District Court for the Southern District of Alabama, the district court dismissed plaintiff's
claim with prejudice on April 4, 2013. The United States Court of Appeals for the Eleventh Circuit
subsequently affirmed the district court's dismissal decision on October 3, 2014. Kraft v. City of Mobile
588 F. App'x 867, 868 (11th Cir. 2014). The United States Supreme Court denied certiorari on May 26,
2015, and plaintiff commenced this action shortly thereafter. See 135 S. Ct. 2363 (2015).

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a waiver of the Court's filing fee. See Mot. to Proceed In Forma Pauper is. On August 24, 2015,
the government moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant
to RCFC 12(b)(l). See generally Def. Mot. On September 14, 2015, plaintiff filed his response
and opposition to the government's motion to dismiss. See generally Pl. Opp. The government
filed its reply brief on September 25, 2015. See generally Def. Rep. On November 4, 2015,
plaintiff filed a sur-reply by leave of the Court. See generally Pl. Sur-Rep. The government's
motion to dismiss having been fully briefed, the Court addresses that motion.

III. LEGAL STAND ARDS

A. Pro Se Litigants
Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleadings requirements leniently. Beriont v. GTE Labs., Inc., 535 F. App'x
919, 926 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501F.3d1354, 1356 (Fed.
Cir. 2007). When determining whether a complaint filed by a pro se plaintiff is sufficient to
survive a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs
than plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(holding that pro se complaints, "however inartfully pleaded," are held to "less stringent
standards than formal pleadings drafted by lawyers"); Matthews v. United States, 750 F.3d 1320,
1322 (Fed. Cir. 2014). But, there "is no duty on the part of the trial court to create a claim which
[the plaintiff] has not spelled out in his pleadings." Lengen v. United States, 100 Fed. Cl. 317,
328 (2011) (brackets existing; citations omitted). In this regard 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
Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002). And so, this Court may excuse
ambiguities, but not defects, in the complaint. See Colbert v. United States, No. 2014-5029,
2015 WL 2343578, at *1 (Fed. Cir. May 18, 2015); see also Demes v. United States, 52 Fed. Cl.

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365, 368 (2002) ("[T]he leniency afforded prose litigants with respect to mere formalities does
not relieve them of jurisdictional requirements.").

B. Rule 12(b)(l)

It is well established that this Court's subject-matter jurisdiction must be established
before it addresses the merits of a claim. Plains Comm. Bank v. Long Family Land & Cattle Co.,
554 U.S. 316, 324 (2008) (citing Steel Co. v. Citizens for a Better Env 't, 523 U.S. 83, 88-89
(1998) (Subject-matter jurisdiction is "a threshold question that must be resolved ... before
proceeding to the merits.")). When considering whether to dismiss an action for lack of subject-
matter jurisdiction, the Court "must assume all factual allegations to be true and draw all
reasonable inferences in the plaintiffs favor." Redondo v. United States, 542 F. App'x 908, 910
(Fed. Cir. 2013) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). However,
plaintiff bears the burden of showing jurisdiction by a preponderance of the evidence. See, e.g.,
Green v. United States, 586 F. App'x 586, 587 (Fed. Cir. 2014); see also McNutt v. GMAC, 298
U.S. 178, 189 (193 6) (noting that the burden of proving that the matter is properly before the
Court should rest on the party seeking the Court's jurisdiction). If subject-matter jurisdiction is
found to be lacking, the Court must dismiss the action. RCFC 12(b)(l).

In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[ es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). In particular, the Tucker Act grants the
Court jurisdiction over:

[A]ny 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)(l) (2011). 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 of Federal Claims] whenever the
substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a
substantive right against the United States under the Tucker Act, a plaintiff must identify and
plead a money-mandating constitutional provision, statute or regulation, or an express or implied

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contract with the United States. Cabral v. United States, 317 F. App'x 979, 981 (Fed. Cir.
2008).

C. The Declaratory Judgment Act

The Declaratory Judgment Act confers upon United States district courts the discretion to
grant equitable relief in the form of declaratory judgments. 28 U.S.C. §§ 2201, 2202. The Act
provides in pertinent part that:

In a case of actual controversy within its jurisdiction ... any court of the United
States, upon the filing of an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration shall have the force and
effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C. § 220l(a).

It is well established that, unlike a district court, the United States Court of Federal
Claims does not possess jurisdiction to grant declaratory judgments under the Declaratory
Judgment Act. See Tchakarski v. United States, 69 Fed. Cl. 218, 221 (2005) ("Although that
statute provides that 'any comi of the United States' may render a declaratory judgment, the Act
does not give jurisdiction to the United States Court of Federal Claims to grant a declaratory
judgment.") (quoting 28 U.S.C. § 2201, et seq). In this regard, the United States Court of
Appeals for the Federal Circuit has held that "to hold that the Court of Federal Claims may issue
a declaratory judgment in [a] case, unrelated to any money claim pending before it, would
effectively override Congress's decision not to make the Declaratory Judgment Act applicable to
the Court of Federal Claims." Nat 'l Air Traffic Controllers Ass 'n v. United States, 160 F.3d 714,
716-17 (Fed. Cir. 1998). And so, this Court does not have jurisdiction to grant general equitable
relief under the Declaratory Judgment Act. Hoag v. United States, 99 Fed. Cl. 246, 252(2011 ).

D. Universal Declaration Of Human Rights

The Universal Declaration of Human Rights ("UDHR") is a declaration adopted by the
United Nations General Assembly on December 10, 1948, which sets forth the fundamental
human rights that all nations should endeavor to protect. Universal Declaration of Human
Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (1948). The UDHR is not a legally binding
document. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004) ("[T]he [UDHR] does not of

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its own force impose obligations as a matter of international law."). And so, federal courts do
not "have jurisdiction over claims based on the Universal Declaration of Human Rights."
Antonio De Carlo Sheppard v. United States, No. 11-295, 2011 WL 6370078, at *7 (Fed. Cl.
Oct. 24, 2008); see also Phaidin v. United States, 28 Fed. Cl. 231, 234 (1993). This Court has
held that "the UDHR does not contain any substantive rights enforceable against the federal
government for money damages, as required under the Tucker Act, and therefore such claims
cannot be heard in this [C]ourt." Gimbernat v. United States, 84 Fed. Cl. 350, 354 (2008).

IV. DISCUSSION
A. The Court Does Not Possess Jurisdiction To Consider Plaintiff's Claims

The government has moved to dismiss plaintiffs complaint upon the ground that this
Court lacks jurisdiction to entertain claims against local government entities. See Def. Mot. at 3;
RCFC 12(b)(l). For the reasons discussed below, the Court agrees.

As an initial matter, this Court does not possess jurisdiction to consider plaintiffs claims
against the City of Mobile. It is well established that the United States is the only proper
defendant in cases brought in the United States Court of Federal Claims. Pikulin v. United
States, 97 Fed. Cl. 71, 75 (2011); Stephenson v. United 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."); United States v. Sherwood, 312 U.S. 584, 588 (1941)
(holding that the jurisdiction of this Court extends only to suits against the United States). It is
also well established that this Court does not possess jurisdiction to entertain claims brought
against state or local government entities. Moore v. Pub. Defender's Office, 76 Fed. Cl. 617, 620
(2007).

A plain reading of the complaint shows that plaintiffs claims in this matter are claims
against the City of Mobile. See generally Compl. Specifically, plaintiff alleges in the complaint
that the City of Mobile improperly demolished his residence and other structures located in
Mobile County on or about July 16, 2011. Com pl. at 13. Plaintiff further alleges that, by
demolishing his residence, and failing to provide prior notice of the demolition, the City of
Mobile violated his constitutional rights under the Fourth Amendment and the Due Process
Clause. Compl. at 18, 20. Plaintiff alleges no wrongdoing on the part of the United States, or
any of its federal agencies. See generally Compl. Rather, plaintiffs sole grievance is with the

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City of Mobile. Id. This Court does not possess jurisdiction to entertain such claims. RCFC
12(b)(l); Moore, 76 Fed. Cl. at 620. And so, the Court must dismiss the complaint.

In addition, to the extent that plaintiff relies upon the Declaratory Judgment Act to
establish jurisdiction, his reliance upon this authority is misplaced. See Compl. at 4. The Court
has long recognized that the Declaratory Judgment Act does not confer jurisdiction upon this
Court to grant declaratory relief. Tchakarski, 69 Fed. Cl. at 221 ("Although that statute provides
that 'any court of the United States' may render a declaratory judgment, the Act does not give
jurisdiction to the United States Court of Federal Claims to grant a declaratory judgment.");
Nat'! Air Traffic Controllers, 160 F.3d at 716-17 ("[T]o hold that the Court of Federal Claims
may issue a declaratory judgment in [a] case, umelated to any money claim pending before it,
would effectively override Congress's decision not to make the Declaratory Judgment Act
applicable to the Court of Federal Claims."); Hoag, 99 Fed. Cl. at 252. And so, this Court does
not possess jurisdiction to entertain plaintiffs request for general equitable relief pursuant to the
Declaratory Judgment Act.

Plaintiffs reliance upon the Universal Declaration of Human Rights is equally
misguided. As discussed above, this Court has held that "the UDHR does not contain any
substantive rights enforceable against the federal govermnent for money damages, as required
under the Tucker Act, and, therefore, such claims cannot be heard in this [C]ourt." Gimbernat,
84 Fed. Cl. at 354. And so, plaintiff cannot rely upon the UDHR to establish jurisdiction here,
and the Court must dismiss the complaint. Id.; RCFC l 2(b )(1).

B. Plaintifrs Motion For Leave To Proceed In Forma Pauperis Satisfies The
Statutory Requirement

Plaintiff has filed a motion to proceed in for ma pauper is, in which he alleges that he
lacks the financial resources to pay the Court's filing fee. See generally Pl. Mot. to Proceed Jn
Forma Pauperis. This Court may authorize the commencement of a suit without the prepayment
of fees when an individual submits an affidavit, including a statement of all assets, a declaration
that he or she is unable to pay the fees, and a statement of the nature of the action and a belief
that he or she is entitled to redress. See 28 U.S.C. § 1915(a); see also 28 U.S.C. § 2503(d). Due
to the Court's summary disposition of this case, and plaintiffs pro se status, the Court finds that
plaintiff satisfies the requirements to proceed in for ma pauper is for the purpose of resolving the

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government's motion to dismiss. And so, the Court grants plaintiff's motion to proceed informa
pauperis for the limited purpose ofresolving the government's motion to dismiss. 3

V. CONCLUSION

In sum, dismissal of the complaint for lack of subject-matter jurisdiction is warranted
because a plain reading of the complaint shows that plaintiff's claims in this matter are claims
against a municipal entity-the City of Mobile. It is well established that this Court does not
possess jurisdiction to consider such claims. And so, plaintiff has not met his burden to show
that the Court possesses jurisdiction to entertain his claims.

In addition, plaintiff's reliance upon the Declaratory Judgment Act and the Universal
Declaration of Human Rights to establish jurisdiction is also misplaced. This Court does not
possess jurisdiction to consider claims based upon either of these authorities. And so, for all of
these reasons, the Court must dismiss the complaint. RCFC 12(b)(1 ).

Finally, because of plaintiff's prose status-and his representation that he is unable to pay
the Court's filing fee-plaintiff may proceed in this matter in form a pauper is for the limited purpose
ofresolving the government's motion to dismiss.
And so, for the foregoing reasons, the Court:

(1) GRANTS defendant's motion to dismiss; and

(2) GRANTS plaintiff's motion to proceed informapauperis.

The Clerk's Office is directed to ENTER final judgment in favor of defendant,
DISMISSING the complaint.

Each party to bear its own costs.

IT IS SO ORDERED.

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In his complaint, plaintiff requests a jury trial. Comp!. at 22. It is well established that, by filing his
complaint in this Court, plaintiff waives the right to a trial by jury. Arunga v. United States, 465 F. App' x.
966, 967 (Fed. Cir. 2012) (citing James v. Caldera, 159 F.3d 573, 589-90 (Fed. Cir. 1998)).

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