# Croney v. DeJoy

> District Court, N.D. New York · January 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10316309

## Case

- **Court:** District Court, N.D. New York
- **Decided:** January 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10316309

## How later opinions describe it (automated extraction)

- holding “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible”
- 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.”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10316309. Public record. Not legal advice.