Smith v. Hurwitz

FILED UNITED STATES DISTRICT CoURT _M()V 1 9 25§\§8 FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and Bankruptcy Courts GARY LEE SMITH, ) ) Plaintiff, ) ) v. ) Civil Action No. l:lS-cv-O2056 (UNA) ) ) H. HURWITZ, el al., ) ) Defendants. ) MEMORANDUM OPINION Plaintiff, a federal inmate appearing pro se, has filed a complaint (“Compl.”) [ECF No. l] and an application to proceed in forma pauperis (“IFP”) [ECF No. 2]. The Court will grant plaintiffs IFP application and dismiss this action pursuant to 28 U.S.C. § l9lS(e)(2)(B)(ii) (requiring dismissal of a case upon a determination that the complaint fails to state a claim upon which relief may be granted). Plaintiff sues the acting director and several prior directors of the Bureau of Prisons. Compl. at caption, 3-4. Plaintiff alleges violations of the False Claims Act (“FCA”). Ia'. at caption, l-3, 9. He asserts that he is a whistleblower, “authorized to bring this action in the name of the Government,” and that he is filing a qui tam action pursuant to 3l U.S.C. § 3727, et seq. Ia'. at l, 3. The FCA, 3l U.S.C. §§ 3729-3732, “is an anti-fraud statute that prohibits the knowing submission of false or fraudulent claims to the federal government.” Unl'tea’ States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 640 (6th Cir. 2003). The FCA authorizes a private individual, as a relator, “to bring [a qui tam] action in the Government’s name, and to recover a portion of the proceeds of the action, subject to the requirements of the statute.” U.S. ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1206 (D.C. Cir. 2011) (citations omitted); 3l U.S.C. § 3730. While in federal courts such as this one, a plaintif “may plead and conduct their own cases personally or by counsel[,]” 28 U.S.C. § 1654 , the United States is “the real party in interest,” Cobb v. California, No. l5-cv-l76, 2015 WL 512896 , at *1 (D.D.C. Feb. 4, 2015), and a “pro se plaintiff may not file a qui iam action[,]” Jones v. Jina'al, 409 Fed. App’x. 356 (D.C. Cir. 2011) (per curiam). See also Gunn v. Credii Suisse Grp. AG, 610 Fed. App’X 155, 157 (3d Cir. 2015) (noting that “every circuit that has [addressed the issue] is in agreement that a pro se litigant may not pursue a qui iam action on behalf of the Government.”) (citing cases); U.S. ex rel. Szymczak v. Covenant Healthcare Sys., Inc., 207 Fed. App’x 731, 732 (7th Cir. 2006) (“[A] qui tam relatoreven one with a personal bone to pick with the defendant~sues on behalf of the government and not himself. He therefore must comply with the general rule prohibiting nonlawyers from representing other litigants.”). Indeed, it is well established that “pro se parties may not pursue [qui tam] actions on behalf of the United States.” Walker v. Naiionslar Morlg. LLC, 142 F. Supp. 3d 63, 65 (D.D.C. 2015) (quoting U.S. ex rel. Fisher v. Nelwork Software Assocs., 377 F. Supp. 2d 195, 196-97 (D.D.C. 2005)); see Canen v. Wells Fargo Bank, N.A., 118 F. Supp. 3d 164, 170 (D.D.C. 2015) (noting that “courts in this jurisdiction consistently have held that pro se plaintiffs . . . are not adequately able to represent the interests of the United States”) (citing cases). Therefore, plaintiff has neither a constitutional nor a statutory right to pursue the claims of the United States without counsel. Accordingly, this case is dismissed Furthermore, plaintiffs motion for service by United States Marshals Service [ECF No. 4] is denied as moot. A separate order accompanies this memorandum opinion. i\»'-h/~> Date: November \\' , 2018 United States' istrict Judge