Opinion
No. 2:03-CV-0234.
September 3, 2004
REPORT AND RECOMMENDATION
Plaintiff CHARLES F. NELSON, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, originally filed suit pursuant to Title 42, United States Code, section 1983 complaining against a multitude of defendants, some employed by the Texas prison system and many employed outside that institution. Plaintiff has been granted permission to proceed in forma pauperis.
Plaintiff's claims were later severed into several lawsuits, of which this is the sole remaining suit. Plaintiff alleges various letters he and his sister sent by certified mail, return receipt requested, were not properly delivered. Plaintiff states these letters contained requests to a court reporter for the transcript of portions of criminal proceedings against him. Plaintiff claims his First Amendment right of access to courts was violated. Plaintiff also asserts claims sounding in contract and tort and alleges a violation or violations of the Due Process clause of the Fourteenth Amendment.
Plaintiff seeks a monetary award in an unspecified amount and asks the Court to insure [his] rights are protected and that the State ceases and desists from unconstitutionally discriminating and retaliating against [him] for exercising his rights."
EVIDENTIARY HEARING
On February 24, 2004, the Court conducted an evidentiary hearing in the instant cause. At the hearing, plaintiff testified his letters to the court reporter were requests for copies of the criminal proceedings against him because he wanted to show his counsel had approached the bench saying he would file for shock probation at the end of a year and the judge had said she would consider it.
Plaintiff stated he was attempting to sue the Postmaster and the unnamed mail carrier responsible.
At the hearing, the Court noted plaintiff's claims might be barred by operation of limitations; that plaintiff had been able to file his state habeas action and, therefore, was not prevented from presenting his argument concerning shock probation; that there is no respondeat superior liability for the Postmaster on a civil rights claim; and that it appeared the post office might not be liable for the loss of mail. Plaintiff was given time to supplement his pleadings with any additional pleading to state his argued actions in contract and to support his civil rights claims. Plaintiff filed his response on March 5, 2004 and a motion to amend on June 1, 2004.
Review of the motion to amend shows plaintiff seeks to assert claims based on a piece of certified mail sent April 5, 2002. The Court has always considered this mailing to be part of plaintiff's claims, and plaintiff's motion to amend was granted by order issued of even date herewith.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendant.
THE LAW AND ANALYSIS
Specifically, plaintiff claims that, on May 27, 2000, plaintiff mailed three letters by certified mail, only one of which was delivered with return of a certified receipt, one addressed to the Dallas County District Clerk. A certified letter to the Court Reporter for the 283rd District Court and a certified letter to the Court Coordinator were "lost, unaccounted for." Plaintiff says, on October 31, 2000, the Court Reporter responded to his complaint with the Board of Certification, stating that she had not received any of the letters sent by plaintiff, including the certified mail, but that she was not responsible for picking up the Court's mail.
Plaintiff claims "[t]he failure to the U.S. Postal Service to perform as it expressly warranted it would for Certified Mail, has violated the Plaintiff's Access to Courts," as well as its contract with plaintiff.
Further, on April 5, 2002, plaintiff's sister, acting on his behalf, mailed a letter to Sharon Hazelwood for which the postal service failed to obtain a signature on the receipt but, instead, merely delivered to the postal box. Plaintiff says the postal system's computerized tracking service showed the letter had been placed in the correct mailbox on April 8, 2002. Plaintiff's sister received a refund of the money paid for delivery of the letter. Plaintiff claims that, by failing to obtain a signature and delivering the letter without getting a signature, the postal service denied plaintiff access to the courts.
The Court notes that, by his June 1, 2004 Request to Amend, plaintiff appears to allege that he performed this act; however, plaintiff's original complaint was prepared closed in time to the actual event and, unlike his June 1, 2004 pleading, is verified. Consequently, the Court accepts the version first asserted by plaintiff in his original complaint.
Plaintiff also asserts claims sounding in tort and contends his Due Process rights were violated.
Access to Courts Claims
Although plaintiff has asserted he was prevented from purchasing a portion of the transcript in his criminal proceedings, he has not shown this prevented him from presenting argument concerning shock probation in his habeas action. Instead, plaintiff has alleged he was able to file a state habeas case which was denied.
Moreover, the acts or omissions plaintiff has alleged against the unknown mail carrier or carriers responsible for the failure to provide the services purchased amount to, at most, mere negligence; however, a negligent act cannot furnish a basis for an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 982 S.Ct. 1999, 29 L.Ed. 2d 619 (1971). Humphries v. Various Federal USINS Employees, 164 F.3d 936 (5th Cir. 1999).
As to the Postmaster, plaintiff has noted alleged active participation by the Postmaster in the actions causing the deprivation of the plaintiff's constitutional rights or affirmative adoption of policies which were wrongful or illegal and which caused the constitutional deprivation. Theories of vicarious liability, such as respondeat superior, cannot support a Bivens action. Cronn v. Buffington, 150 F.3d 538 (5th Cir. 1998).
Plaintiff has not stated any Due Process claim, despite his use of the term in his complaint. Further, it does not appear any could be stated under the facts alleged.
Additionally, the Court notes that all of plaintiff's Bivens claims based on the three letters mailed May 27, 2000, are barred by operation of the statute of limitations. The statute of limitations for general personal injuries in the forum state is utilized in Bivens actions. Brown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999). In Texas, the general personal injury limitations period is two years, and accrual begins when the plaintiff has knowledge of the injury forming the basis for the action. Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (there is no federal statute of limitations for civil rights actions; therefore, the two-year Texas general personal injury limitations period is applied). The instant suit was submitted for mailing on or about December 26, 2002, and by operation of the Mailbox Rule, is deemed filed on that date, which was more than two years after which plaintiff can reasonably be said to have discovered he had not received any certified receipts.
Plaintiff's argument that postal regulations impose a two-year time limit on submission of a request for delivery information from the delivery record does not present a reason for tolling limitations or prevent accrual of his cause of action. Plaintiff's cause accrued when he had reason to know he had not received the services he had designated.
For all of the reasons set forth above, plaintiff's Bivens claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Concerning plaintiff's claims which sound in tort, plaintiff has not shown this Court has jurisdiction over these claims. The Federal Tort Claims Act contains an exclusion to the waiver of 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). Thus, plaintiff's negligence claims are barred because the federal government has retained sovereign immunity as to these claims. Insurance Co. of N. America v. U.S. Postal Service, 678 F.2d 756, 759 (5th Cir. 1982). Moreover, plaintiff has not alleged he has exhausted administrative remedies in compliance with the Title 28, United States Code, section 2675(a) requirement for commencement of a tort suit against the United States.
Title 28, United States Code section 2675(a) provides, in part, that "[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section." 28 U.S.C. § 2675(a).
As to plaintiff's remaining claims under contract, plaintiff has alleged his sister received a refund for the 2002 letter, and, therefore, that claim appears to be without an arguable basis in law.
Plaintiff has also alleged he has not received a refund for his three letters mailed on May 27, 2000. Plaintiff has not alleged he requested a refund in compliance with the provisions of PO14 2.7 of the Domestic Mail Manual. The Postal Service is liable for mail loss, etc. only to the extent it to which it agrees, in this instance, via the postal regulations. Marine Ins. Co. V.U.S., 410 F.2d 764 (C.Cl. 1969); Mastoloni Sons, Inc. V.U.S. Postal Service, 546 F. Supp. 415 (S.D.N.Y. 1982). The regulations of the Postal Service are the exclusive source for the terms upon which refunds are paid for postal products and services. Breaux v. U.S. Postal Service, 46 F. Supp.2d 641 (E.D.Tex. 1999); (citing Brandofino v. United States Postal Service, 14 F. Supp.2d 1160, 1164 n. 4 (D.Ariz. 1998) (citing Djordjevic v. Postmaster General, 911 F. Supp. 72, 75 (E.D.N.Y. 1995))). Absent the necessary compliance with administrative remedies set forth in the Domestic Mail Manual, plaintiff has failed to show this Court has jurisdiction over any claim sounding in contract.
Lastly, the Court notes plaintiff cannot maintain a claim against the unknown mail carrier or carriers under a theory based on contract because there was no privity of contract between plaintiff and the carrier. The plaintiff's contract was with the Postal Service, not the letter carrier. Consequently, plaintiff's contract claim against any unknown mail carrier lacks an arguable basis in law and is frivolous.
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Complaint filed by plaintiff CHARLES F. NELSON be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested.
IT IS SO RECOMMENDED.