Opinion
Case No. CV05-190-S-EJL.
July 25, 2005
INITIAL REVIEW ORDER
This case was reassigned to this Court to determine whether summary dismissal is appropriate. See 28 U.S.C. §§ 1915(e) and 1915A. The Court also reviews Plaintiff's Motion to Proceed in Forma Pauperis and Motion for Appointment of Counsel. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order.
I. REVIEW OF COMPLAINT
A. Background
Plaintiff alleges that the state prison mailed several boxes of his personal property to his home address. Kirsten (last name unknown), an employee of the Eagle Rock Post Office, left the boxes at the wrong address, causing the personal property to become lost. He asserts that Kirsten's gross negligence and recklessness deprived him of his Fourth, Eighth, and Fourteenth Amendment rights. Plaintiff previously filed a notice of tort claim with the State of Idaho, which provided him with no relief.
B. Applicable Law and Discussion
The Court is required to review prisoner and in forma pauperis complaints seeking relief against a governmental entity or an officer or employee of a governmental entity to determine whether summary dismissal is appropriate. 28 U.S.C. §§ 1915(e) and 1915A. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
The Court assumes that Post Office Employee Kirsten is an employee of the United States government. As a result, 42 U.S.C. § 1983 is inapplicable. Civil rights claims against United States employees must be asserted under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). However, a negligent act cannot furnish a basis for a Bivens action. See Humphries v. Various Federal US INS Employees, 164 F.3d 936 (5th Cir. 1999).
While Congress has provided for a general waiver of sovereign immunity as to the United States Post Office (USPS) that allows it "to sue and be sued in its own name," 39 U.S.C. § 401(1), the waiver remains limited as to tort claims, which must be brought under the Federal Tort Claims Act (FTCA). See Pereira v. U.S. Postal Serv., 899 F.2d 861, 863-64 (9th Cir. 1990). However, under the Federal Tort Claims Act, there is 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). In other words, such claims remain barred by sovereign immunity. See Insurance Co. of N. America v. U.S. Postal Service, 675 F.2d 756, 759 (5th Cir. 1982).
The exclusive remedy for loss or damage of mail is to request reimbursement from the USPS in compliance with the provisions of the Domestic Mail Manual. The regulations of the USPS are the exclusive source for the terms upon which refunds or damages are paid for postal products and services. Brandofino v. United States Postal Service, 14 F.Supp.2d 1160, 1164 n. 4 (D. Ariz. 1998); Breaux v. U.S. Postal Service, 46 F.Supp.2d 641 (D.Tex. 1999). The USPS is "exempt from the APA's general mandate of judicial review of agency actions." Currier v. Potter, 379 F.3d 716, 725 (9th Cir. 2004); 39 U.S.C. § 410(a).
Available at www.usps.gov, Domestic Mail Manual § 609, Filing Indemnity Claims for Loss or Damage. The DMM is incorporated by reference into the Code of Federal Regulations. 39 C.F.R. § 111.4.
Plaintiff might be able to bring his claims in federal court if he could identify a "substantive legal framework" of federal law that confers jurisdiction over his claims. Id. Plaintiff has not identified any law that would provide jurisdiction. Because there does not appear tbe an adequate legal basis supporting subject matter jurisdiction in this case, the Court will dismiss the Complaint. As a result, Plaintiff's other motions are moot.
II. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Complaint (Docket No. 3) is DISMISSED for lack of subject matter jurisdiction.
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion for in Forma Pauperis Status (Docket No. 1) is MOOT.
IT IS FURTHER HEREBY ORDERED that Plaintiff's Motion for Appointment of Counsel (Docket No. 6) is MOOT.