Opinion
6:23-cv-1438 (TJM/TWD)
01-30-2024
NORMAN CRONEY, Plaintiff, v. LUIS DEJOY, Defendant.
NORMAN CRONEY, Plaintiff, pro se 16-A-0510 Marcy Correctional Facility.
APPEARANCES:
NORMAN CRONEY, Plaintiff, pro se 16-A-0510 Marcy Correctional Facility.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge.
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. 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.
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.
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.
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. 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.
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. 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'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.
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).
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. 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) (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.
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).
IT IS SO ORDERED.