Croney v. DeJoy

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

NORMAN CRONEY,

Plaintiff,

v. 6:23-cv-1438

(TJM/TWD)

LUIS DEJOY,

Defendant.

_______________________________________________

APPEARANCES: OF COUNSEL:

NORMAN CRONEY

Plaintiff, pro se

16-A-0510

Marcy Correctional Facility

P.O. Box 3600

Marcy, NY 13403

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

I. INTRODUCTION

The Clerk has sent to the Court for review a complaint submitted by pro se plaintiff

Norman Croney (“Plaintiff”) alleging United States Postal Service (“U.S.P.S.”) Postmaster

General Luis DeJoy violated his civil rights. Dkt. No. 1.1 Plaintiff, who is currently in the

custody of New York State Department of Corrections and Community Supervision (“DOCCS”)

at Marcy Correctional Facility in Marcy, New York, has not paid the filing fee for this action and

seeks leave to proceed in forma pauperis (“IFP”). Dkt. No. 5, Motion for Leave to Proceed IFP;

Dkt. No. 6, Inmate Authorization Form.

1 Citations to Plaintiff’s submissions will refer to the pagination generated by CM/ECF, the

Court’s electronic filing system.

II. IFP APPLICATION

“28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal court

without prepayment of the filing fee that would ordinarily be charged.” Cash v. Bernstein, No.

09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). “Although an indigent,

incarcerated individual need not prepay the filing fee at the time of filing, he must subsequently

pay the fee, to the extent he is able to do so, through periodic withdrawals from his inmate

accounts.” Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607 F.3d 18, 21 (2d

Cir. 2010)).

Upon review, Plaintiff’s IFP application demonstrates economic need. Dkt. No. 5.

Because Plaintiff has met the statutory requirements of 28 U.S.C. § 1915(a) and has filed the

inmate authorization form required in this District, he is granted permission to proceed IFP.2

III. BACKGROUND

Plaintiff initiated this action against Postmaster Dejoy on November 16, 2023. Dkt. No.

1. Plaintiff claims, while he was incarcerated at Five Points Correctional Facility, he sent a letter

to the Federal Bureau of Investigations (“F.B.I.”) via certified mail.3 Id. at 3. Plaintiff did not

receive a completed return receipt from the F.B.I. acknowledging his letter; therefore, he “wrote

the F.B.I. Dozens of times regular mail” to ensure his letter had been received, yet he did not get

a response. Id.

2 Although his IFP application has been granted, Plaintiff will still be required to pay fees that he

may incur in this action, including copying and/or witness fees.

3 Plaintiff states the letter “Contained Numerous Constitutional violations done to me by

Correction officers as well as Proffessional Misconduct performed by the office of special

investigation.” Dkt. No. 1 at 3. Unless otherwise indicated, excerpts from the record are

reproduced exactly as they appear in the original and errors in spelling, punctuation, and

grammar have not been corrected.

On September 1, 2023, while incarcerated at Marcy Correctional Facility, Plaintiff sent

another letter to the F.B.I. via certified mail.4 Dkt. No. 1 at 3. As of the time of filing, Plaintiff

had not received a certified mail return receipt for either of his letters. Id. at 4.

Plaintiff alleges “The record is devoid of any proof that the (U.S.P.S.) . . . did not tamper

with my mail going to the F.B.I. . . .The record is devoid of proof that the postmaster (Luis

DeJoy) Did not direct, HIS employees to engage in fraudulent actions.” Id. at 3-4. His first

claim is a First Amendment violation and his second is a Fourth Amendment violation, and he

seeks compensation for his emotional and physical damage in the amount of $500,000. Id. at 4,

7.

IV. STANDARD OF REVIEW

The Court shall dismiss a complaint in a civil action if the Court determines it is

frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-

(iii); 28 U.S.C. § 1915A(b)(1)-(2); see Livingston v. Adirondack Beverage Co., 141 F.3d 434,

437 (2d Cir. 1998). The Court must also dismiss a complaint, or portion thereof, when the Court

lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal

on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v.

Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that

they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)

(internal quotation marks and citation omitted).

4 Plaintiff’s second letter sent by certified mail concerned “the first certified mail receipt I sent

on November 3rd 2022 and . . . several more violations of proffessional misconduct not only

done by Correction Officers but (o.s.i.) office of special investigation as well . . . .” Dkt. No. 1 at

3.

A claim is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v.

Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007); see also Denton v. Hernandez, 504 U.S. 25, 33 (1992) (holding “a finding of

factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the

wholly incredible”); Livingston, 141 F.3d at 437 (“[A]n action is ‘frivolous’ when either: (1) the

factual contentions are clearly baseless . . . or (2) the claim is based on an indisputably meritless

legal theory.”).

To survive dismissal for failure to state a claim, a complaint must contain a short and

plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).

This short and plain statement of the claim must be “plausible on its face.” Twombly, 550 U.S. at

570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The statement of the claim must do more than

present “an unadorned, the-defendant-harmed-me accusation.” Id. It must “give the defendant

fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555

(internal quotation marks and citations omitted); see also Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim upon which relief may be granted, “the

court must accept the material facts alleged in the complaint as true and construe all reasonable

inferences in the plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994)

(citations omitted). “[T]he tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Id.

Moreover, a court should not dismiss a pro se complaint “without granting leave to

amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)

(citation and internal quotation marks omitted). However, an opportunity to amend is not

required where “the problem with [the plaintiff’s] causes of action is substantive” such that

“better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

V. DISCUSSION

“Under the Postal Reorganization Act, 39 U.S.C. § 101 et seq., the Postal Service is an

independent establishment of the executive branch of the Government of the United States . . . .

Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a

waiver.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 483-84 (2006) (citing 39 U.S.C. § 201)

(internal quotations and additional citations omitted). While the aforementioned act generally

“waives the immunity of the Postal Service from suit by giving it the power to sue and be sued in

its official name,” U.S. Postal Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 741 (2004)

(citing 39 U.S.C. § 401) (internal quotations omitted), it further provides that the Federal Tort

Claims Act (“FTCA”) “shall apply to tort claims arising out of activities of the Postal Service . . .

.” Dolan, 546 U.S. at 484 (citing 39 U.S.C. § 409(c)). As relevant here, the FTCA preserves

sovereign immunity for “[a]ny claim arising out of the loss, miscarriage, or negligent

transmission of letters or postal matter.” 28 U.S.C. § 2680(b); see also, e.g., Bullis v. Ollinger,

No. 6:20-CV-0913 (GLS/ATB), 2021 WL 230106, at *3 (N.D.N.Y. Jan. 22, 2021) (citing Aliev

v. United States Postal Serv., No. 1:19-CV-1156, 2020 WL 1956301, at *2-3 (W.D.N.Y. Apr.

23, 2020) (dismissing the plaintiff’s complaint “for the loss or failed delivery of a package”

explaining the claim “falls squarely within the ‘postal matter exception’ to the waiver of

sovereign immunity.”)).

Here, Plaintiff’s complaint alleges the U.S.P.S. either failed to deliver his letter and

accompanying certified mail return receipt to the recipient or failed to return the completed

receipt to Plaintiff. In other words, his claims necessarily arise out of the loss, miscarriage, or

negligent transmission of letters and fall squarely within the postal matter exception to the

waiver of sovereign immunity. Therefore, to the extent Plaintiff seeks to hold DeJoy liable in his

official capacity as the U.S.P.S. Postmaster General, his claims are barred by the doctrine of

sovereign immunity. Djordjevic v. Postmaster Gen., U.S. Postal Serv., 911 F. Supp. 72, 75

(E.D.N.Y. 1995) (explaining, to the extent the plaintiff’s claim against the U.S.P.S. and

Postmaster General “sounds in tort . . . it is barred by the doctrine of sovereign immunity as

brought against the United States.”).

Accordingly, the Court recommends Plaintiff’s official capacity claims against DeJoy be

dismissed pursuant to 28 U.S.C. § 1915A(b)(2). See Pena v. U.S. Postal Serv., No. 1:23-CV-

10123, 2024 WL 81837, at *1-2 (S.D.N.Y. Jan. 8, 2024) (explaining the FTCA’s waiver of

sovereign immunity does not apply to claims arising out of the loss, miscarriage, or negligent

transmission of letters or postal matter and dismissing the plaintiff’s claims for lack of subject

matter jurisdiction and seeking monetary relief from a defendant immune from such relief)

(citing 28 U.S.C. § 1915(e)(2)(B)(iii); Fed. R. Civ. P. 12(h)(3)) (additional citation omitted).

Alternatively, to the extent Plaintiff seeks to hold DeJoy liable in his individual capacity,

his complaint remains deficient. As an initial matter, while Plaintiff’s First and Fourth

Amendment claims are purportedly brought pursuant to 42 U.S.C. § 1983, “[i]t is well-settled

that a § 1983 claim does not lie against the federal government, its agencies, or employees.”

Feldman v. Lyons, 852 F. Supp. 2d 274, 278 (N.D.N.Y. 2012) (“The federal government does

not act under color of state law.”) (citations omitted). In Bivens the Supreme Court “recognized

an implied private cause of action for damages against federal officers who violate a citizen’s

constitutional rights.” Id. (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971)); see also Iqbal, 556 U.S. at 675-76 (“In the limited settings

where Bivens does apply, the implied cause of action is the federal analog to suits brought

against state officials under . . . § 1983.”) (internal quotations and citations omitted).

Even assuming arguendo Plaintiff has an implied cause of action under Bivens for his

First and Fourth Amendment claims, he fails to state a claim upon which relief may be granted.

As the Supreme Court has explained, “where the well-pleaded facts do not permit the court to

infer more than the mere possibility of misconduct, the complaint has alleged—but it has not

shown—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal quotations omitted,

emphasis added) (citing Fed. Rule Civ. Proc. 8(a)(2)). Here, Plaintiff’s contention– that fraud

may have occurred –is based solely on his speculation that DeJoy directed his employees to

engage in fraudulent conduct. As it currently stands, Plaintiff’s complaint permits the Court to

infer no more than the mere possibility of DeJoy’s misconduct; therefore, he has failed to

demonstrate he is entitled to relief as required by Rule 8(a)(2). See id. at 678 (“Where a

complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of

the line between possibility and plausibility of entitlement to relief.’”) (citing Twombly, 550 U.S.

at 557) (additional quotations omitted).

Because the complaint fails to state a claim against DeJoy in his individual capacity upon

which relief may be granted, dismissal is required under § 1915A(b)(1). However, in deference

to Plaintiff’s pro se status, the Court recommends the action be dismissed with leave to amend to

cure the defects as stated above.

VI. CONCLUSION

WHEREFOR, it is hereby

ORDERED that Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 5) is

GRANTED, and it is

RECOMMENDED that Plaintiff’s First and Fourth Amendment claims, insofar as

Plaintiff seeks to hold DeJoy liable in his individual capacity, be DISMISSED WITH LEAVE

TO AMEND; and it is further

RECOMMENDED that Plaintiff’s claims against DeJoy in his official capacity be

DISMISSED; and it is further

ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation

and Order, along with copies of the unpublished decisions cited herein in accordance with the

Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to

file written objections to the foregoing report.5 Such objections shall be filed with the Clerk of

the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS

WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993)

5 If you are proceeding pro se and are served with this Report-Recommendation and Order by

mail, three additional days will be added to the fourteen-day period, meaning that you have

seventeen days from the date the Report-Recommendation and Order was mailed to you to serve

and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a

Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day

that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).

(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72.

IT IS SO ORDERED.

Dated: January 30, 2024

Syracuse, New York /

Theérése Wiley Dancks

United States Magistrate Judge

2010 WL 5185047 York State Department of Correctional Services, commenced

Only the Westlaw citation is currently available. this action on or about January 12, 2009 by submitting his

United States District Court, complaint to the Court's Pro Se office. Plaintiff alleges, in

S.D. New York. pertinent part, that he has “a non-healing ulcer that is gane

green [sic ]” and that defendant Bernstein “did not want

David J. CASH, Plaintiff, to treat the ulcer right” (Complaint, dated March 3, 3009

v. (Docket Item 2) (“Compl.”), at 3).

BERNSTEIN, MD, Defendant.

The action was originally commenced against two defendants

No. 09 Civ.1922(BSJ)(HBP). —Dr. Bernstein and Dr. Finkelstein. The action was dismissed

| as to Dr. Finkelstein because the complaint contained no

Oct. 26, 2010. allegations whatsoever concerning Dr. Finkelstein (Order

dated February 18, 2010 (Docket Item 9)).

REPORT AND RECOMMENDATION1 On March 4, 2010, the sole remaining defendant—Dr.

Bernstein—filed the current motion. Plaintiff failed to submit

1 At the time the action was originally filed, a response. Accordingly, on August 20, 2010, I issued an

Order advising plaintiff that if he wished to oppose the

the Honorable Leonard B. Sand, United States

motion, he must submit his opposition by September 15, 2010

District Judge, granted plaintiff's application for in

and that after that date I would consider the motion fully

forma pauperis status based on plaintiff's ex parte

submitted and ripe for decision (Order dated August 20, 2010

submission (Docket Item 1). Although the present

(Docket Item 15)). The only submission plaintiff has made

application seeking to revoke plaintiff's in forma

in response to my Order is a multi-part form issued by the

pauperis status is non-dispositive, I address it by

New York State Department of Correctional Services entitled

way of a report and recommendation to eliminate

“Disbursement or Refund Request.”2 By this form, plaintiff

any appearance of a conflict between the decision

appears to request that the New York State Department of

of a district judge and that of a magistrate judge.

Correctional Services pay the filing fee for this action. The

form is marked “Denied.”

PITMAN, United States Magistrate Judge.

*1 TO THE HONORABLE BARBARA S. JONES, United 2 Plaintiff sent this form directly to my chambers,

States District Judge, and it has not been docketed by the Clerk of the

Court. The form will be docketed at the time this

Report and Recommendation is issued.

I. Introduction

By notice of motion dated March 4, 2010 (Docket Item 11),

III. Analysis

defendant moves pursuant to 28 U.S.C. § 1915(g) to revoke

28 U.S.C. § 1915 permits an indigent litigant to commence

plaintiff's in forma pauperis (“IFP”) status on the ground that

an action in a federal court without prepayment of the filing

plaintiff has previously had at least three Section 1983 actions

fee that would ordinarily be charged. Although an indigent,

dismissed as frivolous, malicious or failing to state a claim

incarcerated individual need not prepay the filing fee at the

upon which relief could be granted, and has not shown that he

time at the time of filing, he must subsequently pay the fee,

is in imminent danger of serious physical injury. Defendant

to the extent he is able to do so, through periodic withdrawals

further seeks an order directing that the action be dismissed

from his inmate accounts. 28 U.S.C. § 1915(b); Harris v.

unless plaintiff pays the full filing fee within thirty (30) days.

City of New York, 607 F.3d 18, 21 (2d Cir.2010). To prevent

For the reasons set forth below, I respectfully recommend that

abuse of the judicial system by inmates, paragraph (g) of

defendant's motion be granted.

this provision denies incarcerated individuals the right to

proceed without prepayment of the filing fee if they have

II. Facts repeatedly filed meritless actions, unless such an individual

Cir.2004) (“[T]he purpose of the PLRA ... was plainly to 3 It appears that plaintiff uses the names David

curtail what Congress perceived to be inmate abuses of the J. Cash and Dennis Nelson interchangeably. In

judicial process.”); Nicholas v. Tucker, 114 F.3d 17, 19 (2d his complaint in this matter, plaintiff states that

Cir.1997). Specifically, paragraph (g) provides: the Departmental Identification Number, or DIN,

assigned to him by the New York State Department

of Correctional Services (“DOCS”) is 94–B–0694

*2 In no event shall a prisoner bring (Compl. at 7). DOCS inmate account records

a civil action or appeal a judgment submitted by plaintiff in connection with his

in a civil action or proceeding under application for IFP status indicate that DIN 94–

this section if the prisoner has, on B–0694 is assigned to Dennis Nelson. In addition,

3 or more prior occasions, while the DOCS form described in footnote two bears

incarcerated or detained in any facility, the docket number of this action, but is signed in

brought an action or appeal in a court the name of Dennis Nelson and was sent in an

of the United States that was dismissed envelope identifying the sender as Dennis Nelson.

on the grounds that it is frivolous, A subsequent action has been filed in this Court

malicious, or fails to state a claim upon in which the plaintiff identifies himself as Dennis

which relief may be granted, unless the Nelson but lists his DIN as 94–B–0694, the same

prisoner is under imminent danger of DIN used by plaintiff here. Finally, plaintiff has

serious physical injury. submitted nothing to controvert the assertion in

defendant's papers that David Cash and Dennis

Nelson are the same person. In light of all these

28 U.S.C. § 1915(g). facts, I conclude that David Cash and Dennis

Nelson are both names used by plaintiff.

If an inmate plaintiff seeks to avoid prepayment of the filing

fee by alleging imminent danger of serious physical injury, • In Nelson v. Nesmith, No. 9:06–CV–1177 (TJM)(DEP),

there must be a nexus between the serious physical injury 2008 WL 3836387 (N.D.N.Y. Aug. 13, 2008), plaintiff

asserted and the claims alleged. Pettus v. Morgenthau, 554 again filed an action concerning the medical care

F.3d 293, 298 (2d Cir.2009). he was receiving for his left leg. The Honorable

Thomas J. McAvoy, United States District Judge,

Section 1915(g) clearly prevents plaintiff from proceeding accepted the Report and Recommendation of Magistrate

in this action without prepayment of the filing fee. Judge Peebles, and revoked plaintiff's IFP status and

The memorandum submitted by defendant establishes that dismissed the action on the ground that plaintiff had

plaintiff has had his IFP status revoked on at least four prior previously commenced at least three actions that had

occasions as a result of his repeatedly filing meritless actions. been dismissed on the merits. 2008 WL 3836387 at *1,

*7.

• In 2005, plaintiff commenced an action in the United

States District Court for the Northern District of New • In Nelson v. Spitzer, No. 9:07–CV–1241 (TJM)

York seeking to have his infected leg amputated. (RFT), 2008 WL 268215 (N.D.N.Y. Jan. 29, 2008),

Nelson3 v. Lee, No. 9:05–CV–1096 (NAM)(DEP), 2007 Judge McAvoy again revoked plaintiff's IFP status

WL 4333776 (N.D.N.Y. Dec. 5, 2007). In that matter, on the ground that plaintiff had commenced three

the Honorable Norman A. Mordue, Chief United States or more actions that constituted “strikes” under

District Judge, accepted and adopted the Report and Section 1915(g) and had not shown an imminent

Recommendation of the Honorable David E. Peebles, threat of serious physical injury. 2008 WL 268215

United States Magistrate Judge, that plaintiff had at *1–*2.

brought three or more prior actions that had been

• Finally, in Nelson v. Chang, No. 08–CV–1261

dismissed for failure to state a claim and that plaintiff's

(KAM)(LB), 2009 WL 367576 (E.D.N.Y. Feb. 10,

IFP status should, therefore, be revoked. 2007 WL

2009), the Honorable Kiyo A. Matsumoto, United

cases discussed above, that plaintiff had exhausted that this vague statement is insufficient to support a finding

the three strikes permitted by Section 1915(g) that plaintiff is in imminent danger of serious physical

and could not proceed IFP in the absence of a injury.5

demonstration of an imminent threat of serious

physical injury. 2009 WL 367576 at *2–*3. 5 Plaintiff has sent me several letters describing his

*3 As defendant candidly admits, there is one case in which

wound and its symptoms in detail, and I have

plaintiff's leg infection was found to support a finding of an

no doubt that the wound is serious. However, in

imminent threat of serious physical injury sufficient to come

granting summary judgment dismissing an action

within the exception to Section 1915(g). Nelson v. Scoggy,

last year based on the same allegations, Judge

No. 9:06–CV–1146 (NAM)(DRH), 2008 WL 4401874 at *2

Mordue of the Northern District found that there

(N.D.N.Y. Sept. 24, 2008). Nevertheless, summary judgment

was no genuine issue of fact that plaintiff's own

was subsequently granted for defendants in that case, and

conduct was responsible for the ineffectiveness of

the complaint was dismissed. Judge Mordue concluded that

the treatment he was provided:

there was no genuine issue of fact that plaintiff had received

Furthermore, to the extent that Nelson's medical

adequate medical care for his leg wound and that the failure

treatment was delayed, much of the delay

of the leg to heal was the result of plaintiff's own acts of

was due to his own refusal to cooperate with

self-mutilation and interference with the treatment provided.

medical staff and his self-mutilations. Nelson's

Nelson v. Scoggy, No. 9:06–CV–1146 (NAM)(DRH), 2009

actions to thwart the medical treatment of his

WL 5216955 at *3–*4 (N.D.N.Y. Dec. 30, 2009).4

wound cannot be construed as interference or

indifference by anyone else.... [T]he medical

4 Although the form complaint utilized by plaintiff treatment Nelson received complied with

expressly asks about prior actions involving the constitutional guarantees as it was appropriate,

same facts, plaintiff disclosed only the Scoggy timely, and delayed only by Nelson's own

action and expressly denied the existence of any actions.

other actions relating to his imprisonment (Compl. Nelson v. Scoggy, supra, 2009 WL 5216955 at *4.

at 6). Given plaintiff's total failure to respond to the

pending motion and his failure to even deny that

In light of the foregoing, there can be no reasonable dispute

he is actively thwarting treatment of his wound, it

that plaintiff has exceeded the three “strikes” allowed by

would be sheer speculation for me to conclude that

Section 1915(g) and that he cannot, therefore, proceed here

he is in imminent danger of a serious injury as a

without prepaying the filing fee unless he demonstrates

result of defendant's conduct.

an imminent threat of serious physical injury. Plaintiff has

declined to attempt to make this showing in response to

defendant's motion, and the only suggestion in the record IV. Conclusion

of serious physical injury is the bare statement in the Accordingly, for all the foregoing reasons, I find that plaintiff

complaint that plaintiff “need[s] to go back to a wound speci has had three or more prior actions dismissed as being

[a]list before the gane green [sic ] kills [him]” (Compl. at frivolous, malicious or failing to state a claim and that

5). “However, unsupported, vague, self-serving, conclusory plaintiff's in forma pauperis status should, therfore, be

speculation is not sufficient to show that Plaintiff is, in fact, revoked. If your Honor accepts this recommendation, I further

in imminent danger of serious physical harm.” Merriweather recommend that the action be dismissed unless plaintiff pays

v. Reynolds, 586 F.Supp.2d 548, 552 (D.S.C.2008), citing the filing fee in full within thirty (30) days of your Honor's

Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir.2003) and final resolution of this motion.

White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir.1998);

see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir.2003)

V. OBJECTIONS

(imminent danger exception to Section 1915(g) requires

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of

“specific fact allegations of ongoing serious physical injury,

the Federal Rules of Civil Procedure, the parties shall have

or of a pattern of misconduct evidencing the likelihood

fourteen (14) days from receipt of this Report to file written

of imminent serious physical injury”). Given the plaintiff's

with courtesy copies delivered to the Chambers of the Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9 F.3d

Honorable Barbara S. Jones, United States District Judge, 1049, 1054 (2d Cir.1993); Frank v. Johnson, 968 F.2d 298,

500 Pearl Street, Room 1920, and to the Chambers of the 300 (2d Cir.1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–

undersigned, 500 Pearl Street, Room 750, New York, New 59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–

York 10007. Any requests for an extension of time for filing 38 (2d Cir.1983).

objections must be directed to Judge Jones. FAILURE TO

OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

All Citations

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE

APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 Not Reported in F.Supp.2d, 2010 WL 5185047

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2021 WL 230106 a post office in Oneonta, New York for shipping. (Compl. at

Only the Westlaw citation is currently available. 2.) She handed the telephone to Ollinger, who provided Bullis

United States District Court, N.D. New York. with a tracking number. (Id.) The telephone never arrived at

its destination, and, when Bullis searches the tracking number,

Denise L. BULLIS, Plaintiff, the USPS database shows that the package has not left the

v. post office, despite statements from defendants that it has

Sandy OLLINGER et al., Defendants. been “picked up.” (Id.) Bullis seeks to recover $1,000 for

defendants’ mishandling of her package. (Id.) Now pending

6:20-cv-913 (GLS/ATB) is defendants’ unopposed motion to dismiss and to substitute

| the United States in place of Ollinger and Parker. (Dkt. No. 6.)

Signed 01/22/2021

Attorneys and Law Firms

II. Discussion

Denise L. Bullis, Unadilla, NY, pro se.

As an initial matter, Bullis has failed to respond to the

Ransom P. Reynolds, III, William F. Larkin, Office of the pending motion. And her failure to respond is not without

United States Attorney, Syracuse, NY, for Defendants. significance. Under this District's Local Rules, a party's

failure to respond to a properly filed motion can constitute

consent to the granting of that motion, so long as the

SUMMARY ORDER court determines that the moving party has demonstrated its

entitlement to relief. See N.D.N.Y. L.R. 7.1(a)(3); Albino

Gary L. Sharpe, U.S. District Judge v. City of Amsterdam Police, No. 1:19-CV-1415, 2020 WL

7024388, at *2 (N.D.N.Y. Nov. 30, 2020) (noting that, if the

*1 Plaintiff pro se Denise L. Bullis commenced this action moving party has met its burden, “the non-moving party's

against defendants Sandy Ollinger and Jeff Parker in Oneonta failure to file or serve any papers ... shall be deemed as

City Court, Small Claims Part in Otsego County, New consent to the granting or denial of the motion, as the case

York. (Compl., Dkt. No. 2.) Bullis alleges that defendants, may be, unless good cause be shown.” (citation omitted));

two employees of the United States Postal Service (USPS), Herring v. Tabor, No. 9:12-cv-1739, 2014 WL 2946545, at

were negligent in handling a certain package. (Id. at 2.) *5 (N.D.N.Y. June 30, 2014) (noting that, where a defendant's

Defendants removed the action to this court pursuant to motion to dismiss is unopposed, the “burden of persuasion is

the Federal Tort Claims Act (FTCA),1 on the basis that lightened such that, in order to succeed, the motion need only

defendants are employees of the United States and were be ‘facially meritorious’ ” (citation omitted)).

acting within the scope of their employment. (Dkt. No. 1.)

Defendants then moved to substitute the United States in In addition, a threshold issue as to whether defendants are

place of them, and to dismiss the complaint in its entirety, entitled to relief with respect to their motion is whether

(Dkt. No. 6), which Bullis did not oppose. For the reasons that defendants were acting within the scope of their employment

follow, defendants’ unopposed motion is granted, and Bullis’ during the incident in question. Accepting Bullis’ allegations

complaint is dismissed. as true, but without the benefit of a response to defendants’

motion, defendants were acting within the scope of their

1 See 28 U.S.C. §§ 2671-80. employment as United States postal workers at all relevant

times. Indeed, Bullis does not suggest otherwise in her

complaint, (Compl.), and there is no reason to believe that the

I. Background2 alleged mishandling of a package by two postal workers at a

post office was done in a manner other than within the scope

2 The facts are drawn from Bullis’ complaint, (Dkt. of their employment.

No. 2), and presented in the light most favorable to

*2 Finally, because Bullis’ claim purports to be a common

her.

law tort claim, it must be brought under the FTCA. See, e.g.,

(E.D.N.Y. Dec. 28, 2017) (collecting cases).

[USPS] receives from a claimant,

his duly authorized agent or legal

A. Motion to Substitute

representative, an executed Standard

Defendants argue that, pursuant to the FTCA, the United

Form 95, Claim for Damage or Injury,

States should be substituted for Ollinger and Parker in this

or other written notification of an

action. (Dkt. No. 6, Attach. 1 at 2.) The FTCA permits

incident, accompanied by a claim for

“civil actions on claims against the United States, for money

money damages in a sum certain

damages ... for injury or loss of property ... caused by the

for injury to or loss of property,

negligent or wrongful act or omission of any employee

personal injury, or death alleged to

of the Government while acting within the scope of his

have occurred by reason of the

office or employment.” 28 U.S.C. § 1346(b)(1). With certain

incident. A standard Form 95 may be

exceptions not applicable here, this remedy “is exclusive of

obtained from the local District Tort

any other civil action or proceeding for money damages by

Claims Coordinator, the National Tort

reason of the same subject matter against the employee whose

Center, or online at usa.gov (select

act or omission gave rise to the claim.” Id. § 2679(b)(1).

Government forms).

Because Ollinger and Parker were acting within the scope

of their employment during the events that gave rise to this

39 C.F.R. § 912.5(a). A district court lacks subject matter

litigation, the motion to substitute is granted, and the United

jurisdiction if the plaintiff failed to exhaust her FTCA

States is substituted for them. See Clarcq v. VanGorder, No.

claim. See Celestine v. Mount Vernon Neighborhood Health

5:18-CV-1168, 2019 WL 1317784, at *2 (N.D.N.Y. Mar. 22,

Ctr., 403 F.3d 76, 82 (2d Cir. 2005); Furman v. U.S.

2019) (“As a result [of finding that defendants acted within

the scope of their employment], substitution is mandatory, Postal Serv., 349 F. Supp. 2d 553, 557 (E.D.N.Y. 2004)

and therefore the United States shall be substituted for (“Compliance with Section 2675 ‘is strictly construed.’

the[m].” (citations omitted)). Without this administrative exhaustion, courts lack subject

matter jurisdiction over the claim.” (citations omitted)).

B. Motion to Dismiss *3 Here, the United States maintains that Bullis never filed

The United States argues that Bullis’ complaint must be an administrative claim with USPS. (Dkt. No. 6, Attach. 1

dismissed on two independent grounds: (1) Bullis failed to at 2.) And Bullis does not allege in her complaint that she

first present her claim to USPS and (2) sovereign immunity filed such an administrative claim. (See generally Compl.)

has not been waived for the category of claim Bullis brings Accordingly, Bullis’ claim against the United States must be

against the United States. (Dkt. No. 6, Attach. 2 at 1-3.) dismissed.3 See Thompson v. United States, 795 F. App'x 15,

20 (2d Cir. 2019) (affirming the dismissal of an FTCA claim

based on alleged damage to a package by USPS because the

1. Bullis Failed to Exhaust Administrative Remedies

plaintiff “failed to allege proper exhaustion,” in that he did not

First, the United States argues that Bullis’ complaint must

allege that he first sought monetary damages from USPS).

be dismissed because she did not first file an administrative

claim with USPS prior to bringing this action, thus depriving

the court of subject matter jurisdiction. (Id. at 2.) A 3 While better pleading could potentially cure this

prerequisite to maintaining a tort claim against an entity defect in Bullis’ claim, the claim must be dismissed

covered by the FTCA is that “the claimant shall have first with prejudice and without leave to amend because,

presented the claim to the appropriate Federal agency and as described below, the United States has not

[her] claim shall have been finally denied by the agency.” 28 waived sovereign immunity. See infra Part II.B.2.

U.S.C § 2675(a). A plaintiff has properly exhausted an FTCA

claim against USPS when: 2. Sovereign Immunity

In any event, as argued by the United States, (Dkt. No. 6,

Attach. 2 at 2-3), even if Bullis brought an administrative

United States has not waived sovereign immunity for the amend.

type of claim advanced by her. Indeed, sovereign immunity

has not been waived for “[a]ny claim arising out of the loss, Accordingly, it is hereby

miscarriage, or negligent transmission of letters or postal

matter.” 28 U.S.C. § 2680(b). Because Bullis’ claim is solely ORDERED that defendants’ motion to substitute the United

based on the loss or failed delivery of her telephone, it falls States for Ollinger and Parker (Dkt. No. 6) is GRANTED;

squarely within this exception to the waiver of sovereign and it is further

immunity and must be dismissed for lack of subject matter

jurisdiction. See Aliev v. U.S. Postal Serv., No. 19-CV-1156,

ORDERED that the United States’ motion to dismiss is

2020 WL 1956301, at *3 (W.D.N.Y. Apr. 23, 2020) (“[T]o the

GRANTED; and it is further

extent [plaintiff] alleges USPS was negligent in delivering,

handling, or failing to deliver his mail, any such claim

ORDERED that Bullis’ complaint (Dkt. No. 2) is

is precluded by the postal matter exception and must be

DISMISSED; and it is further

dismissed for lack of subject matter jurisdiction.” (citation

omitted)).

ORDERED that the Clerk close this case; and it is further

Moreover, because the court lacks jurisdiction over this

ORDERED that the Clerk provide a copy of this Summary

Order to the parties.

matter, and better pleading cannot establish jurisdiction

without an entirely new set of facts and allegations, any

amendment to Bullis’ complaint would be futile. See Moran v.

IT IS SO ORDERED.

Proskauer Rose LLP, No. 1:17-cv-00423, 2017 WL 3172999,

at *3 (N.D.N.Y. July 26, 2017) (“[L]ack of subject matter All Citations

jurisdiction is a substantive defect that cannot be cured by

better pleading.” (citations omitted)). Accordingly, Bullis’ Not Reported in Fed. Supp., 2021 WL 230106

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2020 WL 1956301 received the television. Dkt. 1, at 4. Aliev seeks for his money

Only the Westlaw citation is currently available. to be returned—$208.90 for the postal fee and $696.99 as

United States District Court, W.D. New York. reimbursement for the television. Dkt. 1, at 4.

Sobir ALIEV, Plaintiff, On December 13, 2019, USPS moved to dismiss. Dkts. 10, 11.

v. On February 19, 2020, this Court entered a scheduling order

UNITED STATES POSTAL SERVICE, Defendant. directing Aliev to respond to the motion to dismiss no later

than March 6, 2020. Dkt. 16. This order provided that a failure

19-CV-1156 (JLS) to respond to the motion may result in dismissal of Plaintiff's

| complaint. Dkt. 16. To date, Aliev has not responded.

Signed 04/23/2020

Attorneys and Law Firms

DISCUSSION

Sobir Aliev, Buffalo, NY, pro se.

I. LEGAL STANDARDS

Mary Pat Fleming, Mary K. Roach, U.S. Attorney's Office,

Buffalo, NY, for Defendant. A. Unopposed Motions

Where the Court is presented with an unopposed motion, “it

may not find for the moving party without reviewing the

record and determining whether there is sufficient basis for

DECISION AND ORDER

granting the motion.” See Haidon v. Budlong & Budlong,

JOHN L. SINATRA, JR., UNITED STATES DISTRICT LLC, 318 F. Supp. 3d 568, 574-75 (W.D.N.Y. 2018). Where

JUDGE there is a 12(b) motion that has not been opposed, the Court

must review the merits of the motion and determine whether

*1 Pro se Plaintiff Sobir Aliev filed this action against the movant has carried its burden. See Anderson v. Pedalty,

the United States Postal Service (“USPS”) on August 28, No. 14-CV-00192, 2015 WL 1735192, at *1 (W.D.N.Y. Apr.

2019. Dkt. 1. USPS moved to dismiss pursuant to Federal 16. 2015) (citing Foster v. Phillips, No. 03 CIV 3629 MBM

Rule of Civil Procedure 12(b)(1) for lack of subject matter DF, 2005 WL 2978686, at *3 (S.D.N.Y. Nov. 7, 2005)). This

jurisdiction and Rule 12(b)(6) for failure to state a claim. Dkt. Court is aware that pro se litigants generally are entitled

10. to a liberal construction of their pleadings, which should

be interpreted to “raise the strongest arguments that they

For the following reasons, Defendant's motion to dismiss suggest.” Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.

is granted, and Plaintiff's complaint is dismissed without 1996).

prejudice.

B. Rule 12(b)(1) and 12(b)(6) Motions

A case is properly dismissed for lack of subject matter

BACKGROUND jurisdiction under Rule 12(b)(1) when the district court lacks

the statutory or constitutional power to adjudicate it. See Fed.

Aliev alleges in his complaint that on August 9, 2018, he

R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d

paid USPS $208.90 to ship a television to his wife. Dkt. 1, at

110, 113 (2d Cir. 2000). A plaintiff asserting subject matter

4. According to the receipt attached to his complaint, Aliev

jurisdiction has the burden of proving by a preponderance of

paid for Priority Mail International service to Uzbekhistan.

the evidence that subject matter jurisdiction exists. Id.

Dkt. 1, at 8. The package weighed 40 pounds and eight

ounces. Dkt. 1, at 8. This receipt indicated that the Priority

*2 To survive a motion to dismiss under Federal Rule of

Mail International service included $200 in insurance and

Civil Procedure 12(b)(6), a plaintiff must allege facts that—

an insurance notice reading: “Save this receipt as evidence

if accepted as true—are sufficient to “state a claim to relief

of insurance. For information on filing an insurance claim

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

go to https://www.usps.com/help/claims.htm.” Dkt. 1, at 7-8.

detailed factual allegations, “at a bare minimum the operative property resulting from negligence.

standard requires the plaintiff to provide the grounds upon But Congress explicitly carved out exceptions to this

which his claim rests through factual allegations sufficient waiver of sovereign immunity, including the “postal matter

to raise a right to relief above the speculative level.” Yang exception,” which preserves sovereign immunity for claims

Zhao v. Keuka College, 264 F. Supp. 3d 482, 490 (W.D.N.Y. “arising out of the loss, miscarriage, or negligent transmission

2017) (quoting Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d of letters or postal matter.” 28 U.S.C. § 2680(b); Przespo v.

Cir. 2008)). U.S. Post Office, 177 F. Supp. 3d 793, 796 (W.D.N.Y. 2016).

According to the Supreme Court in Dolan, Congress enacted

Where, as here, the defendant moves for dismissal under this exception with the intent to retain immunity for “injuries

Rule 12(b)(1), as well as on other grounds, the court arising, directly or consequentially, because mail either fails

should consider the Rule 12(b)(1) challenge first. See, e.g., to arrive at all or arrives late, in damaged condition, or at

Capellupo v. Webster Cent. Sch. Dist., No. 13-CV-6481 EAW, the wrong address.” Przespo, 177 F. Supp. 3d at 796 (citing

2014 WL 6974631, at *2 (W.D.N.Y. Dec. 9, 2014); Frederick Dolan, 546 U.S. at 489).

v. State, 232 F. Supp. 3d 326, 331 (W.D.N.Y. 2017) (“A

motion questioning the Court's subject matter jurisdiction *3 In this case, Aliev's claim is solely for the loss or

must be considered before other challenges since the Court failed delivery of a package. This claim falls squarely within

must have jurisdiction before it can properly determine the the “postal matter exception” to the waiver of sovereign

merits of a claim.”). immunity. Accordingly, to the extent Aliev alleges USPS was

negligent in delivering, handling, or failing to deliver his mail,

any such claim is precluded by the postal matter exception

II. THIS COURT LACKS JURISDICTION OVER

and must be dismissed for lack of subject matter jurisdiction

PLAINTIFF'S CLAIM

pursuant to Rule 12(b)(1). See Irons v. U.S. Postal Serv., No.

To the extent that Aliev's claim against USPS purports to

12-CV-4508 (KAM), 2012 WL 4344318, at *2 (E.D.N.Y.

be a common law tort claim, it must be brought under the

Sept. 21, 2012).

Federal Tort Claims Act (“FTCA”). See, e.g., Morillo v. eBay,

17-CV-4091 (MKB), 2017 WL 6622543, at *3 (E.D.N.Y.

Moreover, even in the absence of sovereign immunity, Aliev's

Dec. 28, 2017) (collecting cases). It is well-established that

complaint is also subject to dismissal for lack of subject

“suits against the United States Postal Service are suits against

matter jurisdiction for failure to exhaust administrative

the United States.” See Lombardi v. United States, No. 15-

remedies as required under the FTCA. See Thompson v.

CV-1047-A, 2016 WL 1604492, at *1 (W.D.N.Y. Apr. 22,

United States, 795 Fed. App'x 15, 20 (2d Cir. 2019).

2016) (citing Dolan v. U.S. Postal Serv., 546 U.S. 481,

This requirement is “jurisdictional and cannot be waived.”

484-85 (2006)). Under the principle of sovereign immunity,

Przespo, 117 F. Supp. 3d at 797; Celestine v. Mount Vernon

“it is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005). The

receipt and other attached documents to Aliev's complaint

prerequisite for jurisdiction.” Gildor v. U.S. Postal Serv.,

provide information regarding insurance coverage and filing

179 Fed. App'x 756, 758 (2d Cir. 2006) (quoting U.S. v.

claims for lost items. Dkt. 1, at 7-9. However, Aliev has not

Mitchell, 463 U.S. 206, 212 (1983)). Pursuant to the Postal

indicated that he initiated an inquiry or filed an administrative

Reorganization Act, the “FTCA” applies to tort claims arising

claim with USPS prior to initiating this action. Thus, the Court

out of activities of the Postal Service.1 See 39 U.S.C. §

lacks subject matter jurisdiction on this ground as well and

409(c). The FTCA provides a limited waiver of the federal

must dismiss the claim pursuant to Rule 12(b)(1).

government's sovereign immunity against certain tort claims

arising out of the conduct of its employees. See 28 U.S.C. §

Finally, to the extent Aliev's complaint contains a breach

1346(b)(1); Devlin v. U.S., 352 F.3d 525, 530 (2d Cir. 2003).

of contract claim,2 such a claim, not barred by sovereign

immunity, nevertheless fails on account of failure to exhaust

1 Plaintiff's complaint did not cite any statutory basis administrative remedies. See McBride v. U.S. Postal Serv.,

for his action against USPS. However, the FTCA No. 07-CV-0446 (NG), 2007 WL 1965337, at *2 (E.D.N.Y.

is the exclusive means for recovering damages June 29, 2007).

Plaintiff's complaint does not specify whether his the plaintiff had filed an initial inquiry but failed to complete

claims are tort or contract claims. Given that the administrative process proscribed by USPS regulations).

Plaintiff is proceeding pro se, this Court will Because Aliev has not pursued these remedies, and USPS has

interpret the complaint liberally and address both not conceded that Aliev's package was lost, the complaint

types of claims. must be dismissed pursuant to Rule 12(b)(1) for this reason

Claims against USPS for the value of the contents of lost mail too.

are permitted to the extent USPS consents to be liable, as set

forth in the postal laws and regulations. See, e.g., Kaplan v.

U.S. Postal Serv., No. 08-CV-6145T, 2010 WL 4116789, at *2

CONCLUSION

(W.D.N.Y. Oct. 19, 2010). In this case, postal regulations set

forth in the International Mail Manual, and incorporated by For the foregoing reasons, Defendant's motion to dismiss

reference into the United States Code of Federal Regulations, (Dkt. 10) is granted, and Plaintiff's complaint (Dkt. 1) is

govern the liability of the USPS for lost international mail. dismissed without prejudice. The Clerk is directed to close

Id.; see also Lam v. U.S. Postal Serv., No. 06-CV-0268 JG, the case.

2006 WL 27929199, at *4 (E.D.N.Y. Sept. 25, 2006). But

Aliev has not alleged that he has pursued the administrative

avenues provided in these regulations and the manual, let *4 SO ORDERED.

alone pursued them within the appropriate timeframe, in

All Citations

order to recover for the loss he alleges. See Djordjevic v.

Postmaster General, U.S. Postal Serv., 911 F. Supp. 72, 75 Not Reported in Fed. Supp., 2020 WL 1956301

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2024 WL 81837 BACKGROUND

Only the Westlaw citation is currently available.

United States District Court, S.D. New York. Plaintiff alleges that the events that are the bases for her

claims occurred in Jamaica, Queens County, New York, on

Yanerys PENA, Plaintiff, November 23, 2022. She also alleges the following:

v.

U.S. POSTAL SERVICE, Defendant.

I have made a money order to my

1:23-CV-10123 (LTS)

landlord for the rent for $1,000.00 ...

|

and they never received [it], so I

Signed January 8, 2024

went to the post[ ] office to request

information[.] I file the inquiry at

Attorneys and Law Firms

the post office to request a refund

Yanerys Pena, Bronx, NY, Pro Se. of my money order[.] I went to the

Police Department for the incident

information[.] I made a complaint I

ORDER OF DISMISSAL call the post office. I also went to the

post office they just send me a letter

LAURA TAYLOR SWAIN, Chief United States District that the money order was cash[ed] on

Judge: [November 23, 2022.] It's going to be

a year now and I haven[’]t he[ard]

*1 Plaintiff Yanerys Pena, of the Bronx, New York, who nothing from the US Postal Service.

is appearing pro se, filed this action invoking the court's

federal question jurisdiction. She sues the United States

Postal Service (“USPS”), seeking unspecified relief. By (ECF 1, at 5.)

order dated November 20, 2023, the Court granted Plaintiff's

request to proceed in forma pauperis (“IFP”), that is, without

prepayment of fees. For the reasons set forth below, the Court

dismisses this action. DISCUSSION

A. Sovereign immunity

The Court must dismiss Plaintiff's claims against the USPS

STANDARD OF REVIEW under the doctrine of sovereign immunity. This doctrine

bars federal courts from hearing all suits against the federal

The Court must dismiss an IFP complaint, or any portion of government, including suits against any part of the federal

the complaint, that is frivolous or malicious, fails to state a government, such as the USPS, except where sovereign

claim on which relief may be granted, or seeks monetary relief immunity has been waived. United States v. Mitchell, 445

from a defendant who is immune from such relief. 28 U.S.C. U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312

§ 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., U.S. 584, 586 (1941)); see Dolan v. USPS, 546 U.S. 481,

141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss 484 (2006) (“[T]he Postal Service enjoys federal sovereign

a complaint when the Court lacks subject matter jurisdiction immunity absent a waiver.”).

of the claims raised. See Fed. R. Civ. P. 12(h)(3). While the

law mandates dismissal on any of these grounds, the Court is The Court construes Plaintiff's complaint as asserting claims

obliged to construe pro se pleadings liberally, Harris v. Mills, for damages under the Federal Tort Claims Act (“FTCA”).

572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise The FTCA provides for a waiver of sovereign immunity

the “strongest [claims] that they suggest,” Triestman v. Fed. for certain claims for damages arising from the tortious

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal conduct of federal officers or employees acting within the

quotation marks and citations omitted, emphasis in original). scope of their office or employment. See 28 U.S.C. §§

transmission of letters or postal matter.” § 2680(b). “The to Section 2680(b)).

proper defendant in an FTCA claim is the United States....”

With respect to any other claims for damages that she

Holliday v. Augustine, No. 3:14-CV-0855, 2015 WL 136545,

asserts against the United States of America, Plaintiff has not

at *1 (D. Conn. Jan. 9, 2015). The Court therefore construes

alleged facts demonstrating that she filed an administrative

Plaintiff's claims against the USPS as brought against the

claim under the FTCA with a federal governmental entity

United States of America.

for damages and received a final written administrative

determination before bringing this action, nor has she alleged

*2 With respect to those claims in which the FTCA's

facts showing that it has been more than six months since she

waiver of sovereign immunity does apply, a plaintiff must

has filed such an administrative claim.

comply with that statute's procedural requirements before

a federal court can entertain an FTCA claim. See Johnson

Accordingly, Court dismisses all of Plaintiff's claims against

v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999),

the USPS and the United States of America under the doctrine

abrogated on other grounds, United States v. Kwai Fun Wong,

of sovereign immunity, for lack of subject matter jurisdiction,

575 U.S. 402 (2015). Before bringing a damages claim in a

and for seeking monetary relief from a defendant that is

federal district court under the FTCA, a claimant must first

immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(iii);

exhaust her administrative remedies by filing a claim for

Fed. R. Civ. P. 12(h)(3); Celestine, 403 F.3d at 82.

damages with the appropriate federal government entity and

must receive a final written determination. See 28 U.S.C. §

2675(a). Such an administrative claim must be in writing,

B. Leave to amend is denied

specify the amount of damages sought, and be filed within two District courts generally grant a pro se plaintiff an opportunity

years of the claim's accrual. 28 U.S.C. §§ 2401(b), 2675(a). to amend a complaint to cure its defects, but leave to amend

A claimant may thereafter challenge the Government's final is not required where it would be futile. See Hill v. Curcione,

administrative denial in a federal district court by filing an 657 F.3d 116, 123-24 (2d Cir. 2011). Because the defects in

action within six months after the date of the mailing of the Plaintiff's complaint cannot be cured with an amendment, the

notice of final administrative denial by the federal entity. See Court declines to grant Plaintiff leave to amend her complaint.

§ 2401(b). If no written final administrative determination is

made by the appropriate federal entity within six months of

the date of the claimant's filing of the administrative claim, the

claimant may then bring an FTCA action in a federal district CONCLUSION

court. See § 2675(a). While this exhaustion requirement is

The Court dismisses this action for the reasons set forth in

jurisdictional and cannot be waived, see Celestine v. Mount

this order. See 28 U.S.C. § 1915(e)(2)(B)(iii); Fed. R. Civ. P.

Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir.

12(h)(3).

2005), “the FTCA's time bars are non jurisdictional and

subject to equitable tolling,” Kwai Fun Wong, 575 U.S. at 420.

The Court certifies under 28 U.S.C. § 1915(a)(3) that any

appeal from this order would not be taken in good faith, and

To the extent that Plaintiff asserts claims for damages under

therefore IFP status is denied for the purpose of an appeal. See

the FTCA against the United States of America, arising from

Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

the USPS's alleged failure to deliver a money order that

Plaintiff mailed to her landlord, sovereign immunity has not

been waived as to such claims. See § 2680(b); De Perez v. SO ORDERED.

U.S. Post Office, No. 13-CV-2442, 2013 WL 2146918, at

*2 (E.D.N.Y. May 16, 2013) (dismissing the plaintiff's claim All Citations

under the FTCA against the USPS, arising from “the failure to

Slip Copy, 2024 WL 81837

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.