Camera

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MIKE CAMERA, ) CASE NO.: 1:26-CV-00797

)

Plaintiff, ) JUDGE BRIDGET MEEHAN BRENNAN

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v. )

)

UNITED STATES OF AMERICA, ) OPINION AND ORDER

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Defendant. )

)

Before the Court is Defendant United States of America’s Motion to Dismiss. (Doc. 4.)

The motion is unopposed. For the reasons stated herein, the Motion to Dismiss is GRANTED.

I. BACKGROUND

On February 27, 2026, pro se plaintiff Mike Camera (“Plaintiff”) filed a Small Claims

Complaint (“Complaint”) in the Avon Lake Municipal Court against Defendant Marquitta

Hayward (“Hayward”). (Doc. 1-2, Complaint, at 7.)1 Hayward is a United States Postal Service

(“USPS”) employee. (Id.) Plaintiff sought compensation for lawn damage allegedly caused by a

USPS driver. (Id.; Doc. 4-1 at 19.) He alleged Hayward, in her capacity as a supervisor, allowed

a USPS driver to drive over his lawn on at least eight occasions. (Doc. 1-2 at 7.) Plaintiff

claimed $840.00 in damages. (Id.)

1 For ease and consistency, record citations are to the electronically stamped CM/ECF document

and PageID# rather than any internal pagination.

On March 23, 2026, the United States Attorney for the Northern District of Ohio certified

Hayward was a federal employee acting within the scope of her federal employment at the time

of the incidents described in Plaintiff’s Complaint. (Doc. 1-3 at 10.) On April 3, 2026, the

government removed the action to this Court. (Doc. 1.) On April 6, 2026, the government

substituted itself as Defendant in place of Hayward. (Doc. 3.)

On April 8, 2026, the government moved to dismiss Plaintiff’s claims without prejudice

under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon

which relief can be granted. (Doc. 4; Doc. 4-1 at 18-19.) The motion is supported by the

Declaration of Kimberly A. Herbst (“Herbst”), Tort Program and Adjudication Manager with the

USPS National Tort Center. (Doc. 4-2.) Plaintiff did not respond.

II. LAW AND ANALYSIS

A. Standard of Review

Pro se pleadings are liberally construed. Boag v. MacDougall, 454 U.S. 364, 365, 102 S.

Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); see also Pilgrim v. Littlefield, 92 F.3d 413, 416

(6th Cir. 1996); Garrett v. Belmont Cnty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652

(1972)). However, “the lenient treatment generally accorded to pro se litigants has limits.”

Pilgrim, 92 F.3d at 416 (citation omitted). Liberal construction for pro se litigants does not

“abrogate basic pleading essentials.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A

complaint must still contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” FED. R. CIV. P. 8(a)(2).

A Rule 12(b)(6) motion tests whether the complaint meets this standard. To survive a

Rule 12(b)(6) motion for failure to state a claim, the complaint must make out a plausible legal

claim, meaning the complaint’s factual allegations must be sufficient for a court “to draw the

reasonable inference that the defendant is liable[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.

Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127

S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Plausibility does not require any specific probability of

success, but it does demand “more than a sheer possibility that a defendant has acted

unlawfully.” Id.

When courts evaluate whether a complaint states a plausible claim, they must accept all

factual allegations as true. Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 534 (6th Cir.

2017) (quoting Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (6th Cir. 2016)). Courts must also

draw all reasonable inferences in favor of the plaintiff, and they must generally construe the

complaint in the light most favorable to the plaintiff. Id. Courts do not accept legal conclusions

or other conclusory allegations as true, D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir.

2014) (quoting Terry v. Tyson Farms, Inc., 604 F.3d 272, 275-76 (6th Cir. 2010)), and courts

need not make unwarranted factual inferences. Kottmyer v. Maas, 436 F.3d 684, 688 (6th Cir.

2006) (citation omitted).

A plaintiff generally waives a claim where he fails to respond to a defendant’s motion to

dismiss that claim. See Humphrey v. United States AG Office, 279 F. App’x 328, 331 (6th Cir.

2008) (“where . . . [a] plaintiff has not raised arguments in the district court by virtue of his

failure to oppose defendants’ motions to dismiss, the arguments have been waived”); see also

Scott v. Tennessee, 878 F.2d 382 (6th Cir. 1989) (unpublished table decision) (“if a plaintiff fails

to respond or to otherwise oppose a defendant’s motion, then the district court may deem the

plaintiff to have waived opposition to the motion”). This includes cases where the plaintiff is

pro se. See Weatherby v. Fed. Express, 454 F. App’x 480, 490 (6th Cir. 2012) (“[t]hough this

court provides some leeway to pro se litigants, Plaintiff must still make some effort at

argumentation or presentation of facts” and absent such effort, Plaintiff’s claims are waived); see

also Bryant v. McDonough, No. 20-cv-726, 2021 U.S. Dist. LEXIS 221273, 2021 WL 5359182,

at *9 (N.D. Ohio Nov. 17, 2021) (dismissing pro se plaintiff’s claim on motion to dismiss where

she failed to address the defendant’s arguments in opposition), aff’d, 72 F.4th 149 (6th Cir.

2023), abrogated on other grounds by Kellar v. Yunion, Inc., 157 F.4th 855 (6th Cir. 2025).

B. Analysis

The United States, as sovereign, is generally immune from suit absent its consent. See

United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 47 L. Ed. 2d 114 (1976) (citation

omitted); Clay v. United States, 199 F.3d 876, 879 (6th Cir. 1999). Congress waived the federal

government’s sovereign immunity under very limited circumstances for claims against it arising

from torts committed by federal employees while acting within the scope of their employment.

28 U.S.C. §§ 1346(b)(1), 2679(d)(1); see also United States v. Orleans, 425 U.S. 807, 813-14, 96

S. Ct. 1971, 41 L. Ed. 2d 390 (1976).

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80, waives the USPS’s

sovereign immunity from tort claims arising out of USPS activities. See Dolan v. United States

Postal Serv., 546 U.S. 481, 484-85, 126 S. Ct. 1252, 163 L. Ed. 2d 1079 (2006). Under the

FTCA, a plaintiff “shall not” bring tort claims against the federal government or one of its

employees until the party has exhausted administrative remedies. 28 U.S.C. § 2675(a). The

FTCA’s exhaustion requirement is mandatory and cannot be waived. See Kellom v. Quinn, 86

F.4th 288, 293 (6th Cir. 2023), cert. denied, 144 S. Ct. 2662, 219 L. Ed. 2d 1286 (2024) (citing

Copen v. United States, 3 F.4th 875, 880-81 (6th Cir. 2021) and 28 U.S.C. § 2675(a)). To

exhaust administrative remedies, a plaintiff must first file a claim with the USPS directly. See

Copen, 3 F.4th at 879-80 (quoting 28 U.S.C. § 2675(a)). He can only sue the USPS after

receiving a final denial from the USPS or if the USPS fails to make a final disposition within six

months of the claim filing. See id.

The government asserts Plaintiff failed to exhaust his administrative remedies with the

USPS before filing suit. (Doc. 4-1 at 21-23; Doc. 4-2 at ¶¶ 3-6). He was required to do so under

28 U.S.C § 2675(a). (Doc. 4-1 at 21-23.) Because Plaintiff’s suit is premature, it should be

dismissed without prejudice under Rule 12(b)(6), the government urges.2 (Id. at 18-19, 22-23.)

Plaintiff did not respond to the government’s Motion to Dismiss. Accordingly, he has

waived his claim. See Humphrey, 279 F. App’x at 331; Scott, 878 F.2d 382; Weatherby, 454 F.

App’x at 490. Notwithstanding his lack of response, his claim still fails.

Here, the government demonstrated Plaintiff did not exhaust his administrative remedies.

(See Doc. 4-2.) Herbst declared under penalty of perjury she searched multiple USPS databases

and found no record of Plaintiff filing a claim with USPS. (Doc. 4-2 at ¶¶ 1-7.) Plaintiff did not

first file an administrative claim with USPS before filing this suit. And he did not allege in his

Complaint he exhausted his administrative remedies. (See Doc. 1-2 at 7.) Plaintiff did not

comply with the FTCA’s mandatory exhaustion requirement. See 28 U.S.C § 2675(a); Kellom,

86 F.4th at 293. He failed to state a claim under Rule 12(b)(6).

2 The government alternatively moved to dismiss under Rule 12(b)(1), noting another line of

cases finding failure to exhaust administrative remedies was a jurisdictional bar to suit. (Doc. 4-

1 at 23 n.3.) The Sixth Circuit recently held failure to exhaust under 28 U.S.C. § 2675(a) does

not deprive a federal court of jurisdiction. See Kellom, 86 F.4th at 293. Accordingly, “[a] failure

to exhaust administrative remedies before filing a complaint under the FTCA renders the claim

subject to dismissal without prejudice under Rule 12(b)(6).” Al Zubair v. Davison, No. 25-cv-

1495, 2026 U.S. Dist. LEXIS 48687, 2026 WL 672824, at *6 (N.D. Ohio March 10, 2026)

(citations and quotations omitted); see also Bryant v. Collins, No. 25-CV-166, 2025 U.S. Dist.

LEXIS 198080, 2025 WL 2840755, at *2 n.2, *8 (N.D. Ohio Oct. 7, 2025) (dismissing claims

under Rule 12(b)(6) for failing to exhaust administrative remedies).

I. CONCLUSION

For the reasons stated herein, Defendant’s Motion to Dismiss (Doc. 4) is GRANTED and

this case is DISMISSED without prejudice.

IT IS SO ORDERED.

Date: June 30, 2026 ¢

BRIDGET MEEHAN NNAN

UNITED STATESDISTRICT JUDGE