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No. 16-658C (Pro Se)
(Filed: October 25,2016 | Not for Publication)
Ke)"words: Pro Se Complaint; Motion
DEVON THOMAS HARRIS. to Dismiss; Tort Claims; Criminal
Claims; Money Mandating Provisions;
Plaintifi Fifth Amendment Taking; Breach of
Contract
FILED
THE UNITED STATES OF AMERICA,
ocT 2 5 2016
Defendant.
,H"'irl?'&lp^i,
Devon Thomas Harris, New York, NY, pro se.
James Robert Sweet,Tial Attomey, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were Claudia Burke, Assistant
Director, Robert E. Kirschman, -/r., Director, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General.
OPINION AND ORDER
KAPLAN, Judge.
Currently before the Court is the govemment's motion to dismiss this case under
Rules ofthe Court ofFederal Claims (RCFC) l2(bXl) and 12(bX6). For the reasons set
forth below, the goverffnent's motion to dismiss is GRANTED.
BACKGROUND'
I. Mr. Harris's Allegations
Mr. Harris alleges that in July of2009, "while incarcerated at Bridgeport County
Correctional Facility in the state of Connecticut," he "became suspicious [that he] was
being illegally experimented on." Am. Compl. fl 14. According to Mr. Harris, the vector
for this experimentation is a device that has been implanted in his brain, which the
government allegedly uses to monitor and experiment on his mind and to transmit his
' The facts set forth below are based on the assertions in Mr. Hanis's amended
complaint, which the Court accepts as true solely for purposes of ruling on the pending
motion to dismiss. For purposes ofbackground, the Court also includes jurisdictional
facts drawn from the government's motion to dismiss the amended complaint.
?01,1 n'r?0 000a 5B8rt 3?85
thoughts nationwide for public consumption. See id. flfl 2, 5, 10, 14, 21, 34-35,39,46-
47, 56,64.
Mr. Harris alleges that several health care facilities and state police departments
have been involved in this experimentation, including a hospital in Stamford,
Connecticut, a correctional facility in Bridgeport, Connecticut, the Greenwich,
Connecticut police department, and the New York City police department. See id. flfl 14,
20,24,26-28,33-35. He also alleges that various federal agencies, including the
National Aeronautics and Space Administration, the Department of Justice, the
Department ofDefense, and the CIA, were responsible for ensuring that he was not
experimented on in this manner, but that they failed to prevent the experiments from
occuning. Id. fl 2.
In addition, lv{r. Harris contends that his mother entered into a contract with the
United States pursuant to which the govemment has paid her to allow the conduct
described above. See id. tltf 74,98,106,108. Mr. Harris alleges that the United States has
improperly permitted that illegal contract to be upheld. See id. ,lJ 74.
il. This Action
Mr. Harris filed a complaint in this Court on June 3,2016.2 Dkt. No. 1. On August
2,2016, the govemment moved to dismiss the complaint under RCFC 12(bXl) and
l2OX6). Dkt. No. 7.
On August 23, 2016, Mr. Harris filed an amended complaint. Dkt. No. 13. In his
amended complaint, Mr. Hanis asserts a variety of claims for relief. See id. flfl 30-43
(conspiracy to interfere with civil rights under 42 U.S.C. $ 1985); id. lffl 44-53 (violation
of criminal anti-torture statute, 18 U.S.C. g 23a0); id. flfl 54-60 (violation of criminal
anti-stalking statute, 18 U.S.C. $ 22611t); id. flfl 61-59 (deprivation ofrights under color
of law in violation of 18 U.S.C. g 2a2); id. flfl 7G-91 (violations of the Fifth
Amendment's Due Process Clause, the Thirteenth Amendment, and the Fourteenth
Amendment's Due Process and Equal Protection Clauses); id. llfl 92-96 (violation of42
U.S.C. $ 1a1a1); id. tl'!J 97-104 (violation of the Fifth Amendment's Takings Clause); id.
'1llT 105-1 12 (breach of contract); id. flfl 1 12-19 (violation ofregulation providing for the
protection of human research subjects,45 C.F.R. gg 46.101-46.505).
As a remedy for these alleged wrongs, Mr. Harris requests "declaratory relief,
[an] injunction[,] and the mandating ofspecific performances" to ensure that he is "freed
from such illegal activities." Id. fl 6; see also id.fln42,52,58-59,67,68,76-77,83,94,
90, 95, 102-103, 110-1 11, 119-120. Further, he seeks monetary relief in the form of
' Along with his complaint, Mr. Harris filed a motion for leave to proceed in forma
pauperis. Dkt. No. 3. The Court GRANTS that motion solely for the purpose of deciding
the government's motion to dismiss.
compensatory and punitive damages. See id. flfl 43, 53, 60, 69,78,85,91,96, 104,112,
121.
The govemment moved to dismiss the amended complaint on September 8,2016.
Dkt. No. 16. Mr. Harris filed a response to the government's motion on September 22,
2016,Dkt. No. 17, and later filed an addendum to his response, Dkt. No. 19. The
government filed a reply in support of its motion on September 28, 2016. Dkt. No. 18.
DISCUSSION
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction Under RCFC
12(bXl)
In deciding a motion to dismiss for lack of subject matter jurisdiction, the court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in
favor ofthe plaintiff. Trusted Intesration" Inc. v. United States, 659 F.3d 1 1 59, 1 163
(Fed. Cir. 201 1). However, the court may also "inquire into jurisdictional facts" to
determine whether it has jurisdiction. Rocovich v. United States,933 F.2d 991, 993 (Fed.
Cir. 1991). It is well established that complaints filed by pro se plaintiffs (as is this one),
are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v.
Kemer, 404 U.S.519,520 (1972). Nonetheless, even pro se plaintiffs must persuade the
Court that jurisdictional requirements have been met. Bemard v. United States, 59 Fed.
Cl. 497, 499 (2004), aff d,98 Fed. App'x 860 (Fed. Cir.2004).
II. Motion to Dismiss for Failure to State a Claim Under RCFC l2(b)(6)
When considering a motion to dismiss for failure to state a claim under RCFC
12(bX6), the court accepts as true the complaint's undisputed factual allegations and
construes them in the light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The court also draws all reasonable inferences in favor of the non-
moving party. Sommers Oil Co. v. United States,241 F.3d 1375,1378 (Fed. Cir. 2001).
So construed, the plaintiff s allegations must "raise [the] right to relief above the
speculative level," Bell Atlantic Com. v. Twomblv, 550 U.S. 544,555 (2007). In other
words, the plaintiffs claim must be plausible on its face. Id. at 570; see also Acceptance
Ins. Cos.. Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). *A claim has facial
plausibility when the plaintiffpleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
III. Application of These Standards to Plaintiffs Amended Complaint
Applying these standards, the Court concludes that it lacks subject matter
jurisdiction over many of Mr. Hanis's claims. To begin with, the Court of Federal Claims
has nojurisdiction to enteflain claims against any defendant other than the United States.
See United States v. Sherwood, 312 U.S. 584, 588 (1941) C'Ulf 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."). Accordingly, Mr. Harris's claims against parties other than the
United States, including state correctional and hospital facilities, local police
deparftnents, and his mother, must be dismissed.
Further, the Court's jurisdiction does not extend to any claims "sounding in tort."
See 28 U.S.C. $ 1491(a)(1); see also Keene Com. v. United States, 508 U.S. 200,214
(1993) ("[T]ort cases are outside the jurisdiction ofthe Court ofFederal Claims . . . .");
Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997). Thus, to the extenr Mr.
Hanis asserts tort claims related to the alleged torture and psychological harm allegedly
inflicted upon him, the Court lacks jurisdiction over those claims.
The Court also lacks jurisdiction over constitutional claims unless those claims
are based on constitutional provisions that are "money mandating." See Brown, 105 F.3d
at 623; LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995). The Fifth
Amendment's Due Process Clause, the Thirteenth Amendment, and the Fourteenth
Amendment's Due Process and Equal Protection Clauses are not money mandating
constitutional provisions. See Spain v. United States,277 Fed. App'x 988, 989 (Fed. Cir.
2008) (per curiam) (Fifth Amendment's Due Process Clause and Fourteenth
Amendment's Due Process and Equal Protection Clauses); Pleasaat-Bev v. United
States, 99 Fed. Cl. 363, 367 (2011) (Thirteenth Amendment). Therefore, Mr. Harris's
claims under those provisions must be dismissed as well.
In addition, the Court's jurisdiction does not extend to criminal matters. See
Upshaw v. United States, 599 Fed. App'x 387, 388 (Fed. Cir. 2015) (per curiam); Joshua
v. United States, 17 F.3d 378,379-80 (Fed Cir. 1994). Thus, the Court lacks jurisdiction
over Mr. Harris's statutory claims related to torture, stalking, and criminal deprivation of
rights under color of law, as those claims are premised on criminal statutes. Likewise, the
Court has no jurisdiction to hear civil claims alleging deprivation ofcivil rights under
color of law. Elkins v. United States,229 9, Cl. 607, 608 (1981) (.,[W]e do not have
jurisdiction over claims based upon alleged violations ofthe civil rights laws.") (citation
omitted); see also Wagstaff v. United States, 105 Fed. Cl. 99, 109 (2012). Accordingly,
Mr. Harris's claims under 42 U.S.C. $ 1985 and 42 U.S.C. $ 14141 must be dismissed.s
Finally, Mr. Harris's claim that the govemment violated a regulation regarding
experimentation on human subjects must be dismissed because that regulation is not
money mandating. See United States v. Mitchell, 463 U.S. 206,216-17 (1983); Stevens
v. United States, No. 10-509C, 2011 WL 1883010, at *2-3 (Fed. Cl. May 17,2011). That
is, nothing in the regulation "can be fairly interpreted as mandating compensation."
Stevens, 201 1 WL 1883010, at *2 (citing United States v. White Mountain Apache Tribe,
537 U.S. 46s.472-73 (2003)).
' Mr. Harris'sclaims under 42 U.S.C. $ 14141 must also be dismissed for the
independent reason that only the Attomey General may bring an action to enforce that
provision. See 42 U.S.C. g 14141(b).
On the other hand, Mr. Harris's claim under the Fifth Amendment's Takings
Clause and his claim for breach of conhact are not jurisdictionally baned. However,
these claims must also be dismissed for failure to state a claim.
Thus, the Fifth Amendment's Takings Clause prohibits only the taking of private
property for public use without just compensation. See U.S. Const. amend. V. Private
property under the clause, however, does not include a person's body or the use ofa
person's body. See Stevens v. United States, No. 09-338C, 2009 WL 3650874, at+4
(Fed. Cl. Oct.28,2009) (obsewing that "a claim relating to wrongful govemmental
control over a person is not a Fifth Amendment taking claim, but is instead a request for a
writ of habeas corpus or a due process claim"). The thrust of Mr. Harris's takings claim is
that the govemment has taken his thoughts and transmitted them to others without his
consent. See Am. Compl. fl$ 99-100. Thus, he has not adequately alleged that the
govemment has taken from him any private property within the meaning of the Takings
Clause.
With respect to his breach ofcontract claim: to state a claim for the breach ofa
contract with the United States, a plaintiff must plausibly allege (1) the existence ofa
contract with the United States that confers rights upon the plaintiff, (2) the breach ofa
duty arising out of that confact, and (3) damages resulting from the breach. See Kam-
Almaz v. United States, 682 F.3d 1364,1368 (Fed. Cir. 2012); Bell/Heary v. United
States, 739 F.3d 1324, 1330 (Fed. Cir.2014). Mr. Harris has not alleged that he himself
entered into a contract with the United States; rather, he contends that his mother entered
into such a contract, to his detriment. Further, Mr. Harris's allegations do not describe
any of the terms of the purported contract. Thus, the Court is unable to asceftain the
nature of the alleged contract or the rights it might confer upon Mr. Harris.
Further, Mr. Hanis's allegations do not explain how the United States has
breached the supposed contract or how any such breach has damaged Mr. Harris. Indeed,
Mr. Harris appears to allege that he has been damaged by the existence ofthe contract,
not by its breach which, if an1'thing, would give rise to a tort claim, and not a claim for
breach of contract. As already discussed, tort claims fall outside this Court's jurisdiction.
Accordingly, Mr. Hanis has failed to plausibly allege a claim for the breach of a contract
with the United States.
In summary, the Court lacks jurisdiction over Mr. Harris's claims against parties
other than the United States; his tort claims; his claims under 18 U.S.C. $ 242, 18 U.S.C.
g 2340, and 18 U.S.C. $2261A; his claims under 42 U.S.C. $ 1985,42 U.S.C. $ 14141,
and 45 C.F.R. $$ 46.101+6.505; and his claims under the Fifth Amendment's Due
Process Clause, the Thirteenth Amendment, and the Fourteenth Amendment's Due
Process and Equal Protection Clauses. Further, Mr. Harris has not adequately stated a
claim under the Fifth Amendment's Takings Clause or a claim for breach of contract with
the United States. Therefore, his complaint must be dismissed.
CONCLUSION
For the reasons given above, the govemment's motion to disrriss is GRANTED.
His claims for b'reach of contact and his claims under Fiffh Amendment's Takings
Clause are DISMISSED with prejudice. The remainder of his claims are DISMISSED
without prejudice for lack ofjurisdiction. The Clerk is directed to enterjudgpent
accordingly. Each side shall bear its own costs.
IT IS SO ORDERI,D,
A-/4/>
ELAINE D. KAPLAN
Judge