Vanover v. United States

SHELTON VANOVER, Plaintiff, v. UNITED STATES, Defendant.

No. 20-1530C

United States Court of Federal Claims

April 23, 2021

Shelton Vanover, pro se, Bruceton Mills, W.V.

Albert S. Iarossi, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him were L. Misha Preheim, Assistant Director, and Brian Boynton, Acting Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C.

ORDER

HORN, J.

FINDINGS OF FACT

Pro se plaintiff, Shelton Vanover, filed a brief complaint in the above-captioned case in the United States Court of Federal Claims on November 2, 2020, titled: "Civil Complaint for Judicial Review in Accordance with Title 5 U.S.C. §702 Within the Meaning of Title 28 U.S.C. §1491(a)(1)," seeking review of a decision by "United States District Judge for the Northern Judicial District of Florida Robert L. Hinkle in case number 4:12-cr-00031-RLH," and to recover monetary relief.

On October 28, 2015, Judge Hinkle issued an Order, which stated, in part:

The defendant Sheldon L. Vanover has moved under 28 U.S.C. § 2255[¹] for relief from his judgment of conviction. The motion is before the court onthe magistrate judge's report and recommendation,[²] and the objections. I have reviewed de novo the issues raised by the objections. This order adopts the report and recommendation as the court's opinion, with these additional notes.

Mr. Vanover's career-offender claim, now cast in terms of ineffective assistance, is unfounded. As set out in the order of July 31, 2013, Mr. Vanover was properly treated as a career offender.

Mr. Vanover's assertion that he was offered a plea agreement under which he would not be treated as a career offender also provides no ground for relief.

United States v. Vanover, No. 4:12-CR-31-RH/GRJ, 2015 WL 6509125, at *1 (N.D. Fla. Oct. 28, 2015) (internal citations omitted).³

Plaintiff's complaint in the United States Court of Federal Claims states:

Now comes Shelton Vanover from herein the Plaintiff who asserts his legislative Right to Judicial Review in accordance with Title 5 U.S.C §702 pursuant to the Plaintiff's current suffering of legal wrong by the action of United States District Judge for the Northern Judicial District of Florida Robert L. Hinkle in case number 4:12-cr-00031-RLH whom has acted under the color of legal authority committing the Plaintiff into the custody of the Attorney General of the United States constituting the United States as an indispensable party, thus within the meaning of Title 28 U.S.C §1491(a)(1) the United States' commitment of the Plaintiff into the custody of the Attorney General of the United States is founded on judicial acts not in accordance with the Constitution of the United States and not in accordance with the Acts of Congress for alleged offense(s) against the Laws of the United States purportedly committed within the legislative territorial jurisdiction of the State of Florida.

In addition, plaintiff's complaint in the United States Court of Federal Claims states:

The Plaintiff asserts his guaranteed protection of the 5th Amendment of the Constitution of the United States' Due Process Clause against the United States in accordance with the fact that the Plaintiff's liberty and property have been taken by an [sic] United States Agency void constitutional power and void legislative authority to legally convict and sentence the Plaintiff for alleged acts allegedly committed within the legislative territorial jurisdiction of the State of Florida constituting a legal wrong currently being suffered by the Plaintiff.

In this court, plaintiff asserts that "he is in currently committed under the custody of the Attorney General of the United States pursuant to "1. Title 18 U.S.C §3041, 2. Title 18 U.S.C §3142(i)(2), and 3. Title 18 U.S.C § 3553(b) under the color of legal authority in accordance with Title 28 U.S.C §2241(c)(1)." (emphasis in original). Plaintiff contends that he is committed to custody contrary to the "Constitution of the United States' Article I Section 8 Clause 10, Article I Section 8 Clause 17, Article IV Section 3 Clause 2, Article VI Clause 2 and Clause 3, and not in accordance with the Bill of Rights," specifically the 4th Amendment, the 5th Amendment, the 6th Amendment, and the 13th Amendment. Plaintiff also argues that he is committed to custody contrary to the "the following federal states: 1. Title 18 U.S.C §5, 2. Title 18 U.S.C §7, 3. Title 18 U.S.C §23, 4. Title 18 U.S.C §3041, 5. Title 18 U.S.C §3142(i)(2), 6. Title 18 U.S.C §3231, and 7. Title 18 U.S.C §3553(b)." (emphases in original). In addition, the plaintiff asserts that all of the violations are in line with the Federal habeas corpus statute "Title 28 U.S.C §2241(c)(3), thus all colorable violations , [sic] constitutional violations and federal statutory violations are in fact causing the Plaintiff injuries and legal wrongs showng [sic] this Complaint for Judicial Review is entitled to Redress." (emphasis and capitalization in original).

In the section of the complaint titled: "DEMAND FOR RELIEF SOUGHT," plaintiff states that he

DEMANDS COMPENSATION IN THE AMOUNT OF $2 MILLION Dollars [sic] and in the form of a SETOFF where this court shall hold unlawful and set aside United States District Judge for the Northern Judicial District of Florida Robert L. Hinkle's act of filing a Judgement In A Criminal Case filed in proceeding case number 4:12-cr-00031-RLH in accordance with Title 5 U.S.C §706, after review of the whole record as being contrary to constitutional right, power, privilege, or immunity, and short of statutory right, and in excess of statutory jurisdiction, authority and limitations, without observance of procedure required by law unsupported by substantial evidence in a case subject to Title 5 U.S.C §§ 556 and 557. The Plaintiff further asserts an additional DEMAND to be IMMEDIATELY DISCHARGED from the custody of the Attorney General of the United States William Barr his acting agent Warden S. Lovett of FederalCorrectional Institution Ray Brook which is located at 128 Old Ray Brook Road, Ray Brook, NY 12977.[⁴]

(capitalization and emphasis in original).

In response to plaintiff's allegations, on December 22, 2020, defendant filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) (2020) of the Rules of the United States Court of Federal Claims (RCFC) for lack of subject matter jurisdiction. Defendant argues "none of the allegations contained in the complaint confer jurisdiction in this Court, and the complaint should be dismissed accordingly." Defendant argues "Mr. Vanover's complaint, even when viewed in the most deferential light possible, fails to articulate a claim that is within this Court's jurisdiction. Although the complaint identifies various Federal criminal procedure statutes (including the Federal habeas corpus statute) and alleges that Mr. Vanover's Fifth Amendment due process rights have been taken, none of these allegations confer jurisdiction here."

After defendant filed its motion to dismiss, on January 25, 2021, plaintiff submitted to the court a "DEMAND FOR SUMMARY JUDGMENT IN ACCORDANCE WITH RCFC 56 OF THE RCFC IN ACCORDANCE WITH THE ARTICLE I SECTION 9 CLAUSE 2 OF THE CONST. OF U.S, AND IN ACCORDANCE WITH THE BILL OF RIGHTS 5TH AMENDNENT'S DUE PROCESS CLAUSE AND TAKING CLAUSE RESPECTIVELY BOTH OF THE CONST. OF U.S[.]" (capitalization in original). In a January 27, 2021 Order, the undersigned explained it would not consider a motion for summary judgment until the court determines that the court has jurisdiction over plaintiff's claims. The court ordered plaintiff to file a response to the defendant's motion to dismiss by February 12, 2021. After plaintiff failed to do so, on February 26, 2021, the court again ordered plaintiff to file a response to the motion to dismiss. As of April 23, 2021, plaintiff has not filed a response.

DISCUSSION

Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1) and argues that this court does not have subject matter jurisdiction to consider any of the allegations in plaintiff's complaint. The court recognizes that plaintiff is proceeding pro se. When determining whether a complaint filed by a pro se plaintiff is sufficient to invoke review by a court, a pro se plaintiff is entitled to a more liberal construction of the pro se plaintiff's pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (requiring that allegations contained in a pro se 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 F.3d 1320, 1322 (Fed. Cir. 2014); Jackson v. United States, 143 Fed. Cl. 242, 245 (2019), Diamond v. United States, 115 Fed. Cl. 516, 524 (2014), aff'd, 603 F. App'x 947 (Fed. Cir.), cert. denied, 135 S. Ct. 1909 (2015). However, "there is no 'duty [on the part] of the trial court . . . to create a claim which [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 pro se 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...