Davis v. U.S. Postal Serv.

LARRY DAVIS, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Civil Action 2:20-cv-1852

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 17, 2020

Judge George C. Smith

Chief Magistrate Judge Elizabeth P. Deavers

ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION

Plaintiff Larry Davis's request for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2) is GRANTED. (ECF No. 1.) Plaintiff is required to pay the full amount of the Court's $350 filing fee. 28 U.S.C. § 1915(b)(1).

Plaintiff's April 7, 2020, account statement reveals that he currently possesses the sum of $30.47 in his prison account, which is insufficient to pay the full filing fee. Pursuant to 28 U.S.C. § 1915(b)(1), the custodian of Plaintiff's inmate trust account (#A754429) at North Central Correctional Institution is DIRECTED to submit to the Clerk of the United States District Court for the Southern District of Ohio as an initial partial payment, 20% of the greater of either the average monthly deposits to the inmate trust account or the average monthly balance in the inmate trust account, for the six-months immediately preceding the filing of the Complaint.

After full payment of the initial, partial filing fee, the custodian shall submit 20% of the inmate's preceding monthly income credited to the account, but only when the amount in the account exceeds $10.00 until the full fee of $350.00 has been paid to the Clerk of this Court. 28 U.S.C. § 1915(b)(2). See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

Checks should be made payable to: Clerk, United States District Court. The checks should be sent to:

Prisoner Accounts Receivable

260 U.S. Courthouse

85 Marconi Boulevard

Columbus, Ohio 43215

The prisoner's name and this case number must be included on each check.

It is ORDERED that Plaintiff be allowed to prosecute his action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid. The Clerk of Court is DIRECTED to mail a copy of this Order to the prison cashier's office. The Clerk is further DIRECTED to forward a copy of this Order to the Court's financial office in Columbus.

This matter is also before the Court for an initial screen of Plaintiff's Complaint under 28 U.S.C. §§ 1915(e)(2), 1915A to identify cognizable claims and to recommend dismissal of Plaintiff's Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A. Having performed the initial screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A, for the reasons that follow, it is RECOMMENDED that Plaintiff's Complaint be DISMISSED in its entirety.

Plaintiff, a state inmate who is proceeding without the assistance of counsel, brings this action against the "United States Post Office,"¹ located at 850 Twin Rivers Drive, Columbus,Ohio 43215, and North Central Correctional Complex ("NCCC")². (ECF No. 1.) On the civil cover sheet, Plaintiff has checked a box indicating that the nature of his suit is "Civil Rights" and describes his cause of action as "civil rights of mail." (Id.) Plaintiff seeks relief of $37,000,000 "for the pain and mentel (sic) heath (sic) I have to go through." (Id.)

I.

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to "lower judicial access barriers to the indigent." Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing so, however, "Congress recognized that 'a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.'" Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)³ as part of the statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that--

* * *

(B) the action or appeal--

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte dismissal of an action upon the Court's determination that the action is frivolous or malicious, or upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule 8(a)(2), 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). Thus, Rule 8(a) "imposes legal and factual demands on the authors of complaints." 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require "'detailed factual allegations,' . . . [a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action,'" is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct." Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Courtholds pro se complaints "'to less stringent standards than formal pleadings drafted by lawyers.'" Garrett v. Belmont Cnty. Sheriff's Dep't., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; "'courts should not have to guess at the nature of the claim asserted.'" Frengler v. Gen. Motors, 482 F. App'x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II.

The entirety of Plaintiff's statement of claim, restated here verbatim, is as follows:

On or about 3-03-2020, I had paid the sum of $6.90 for certified mail to go out to my family so I know it would get there and I paid for it out of my inmate Account when I called the party wich the certified mail went out too I asked if they recived the mail and was told no so on 3-09-2020 I sent out it again in the same way and same cost and as of 4-7-2020 the certified mail which I have paid for to be sent still have not been recived North Central Correctional states it's not in there hands and the United States Post Office states that they can't find both pices of mail This may cause me not to be able to move closer to home and see my family wich is my right Before the heath of my family member dose the worse and I paid for this mail to get there and now its lost somewhere

(ECF No. 1, at PAGEID #18.)

A. Allegations directed to the USPS

As evidenced above, Plaintiff's allegations directed to the USPS are quite sparse. From a generous read of Plaintiff's filing, the best the Court can glean is that he asserts that the Columbus USPS branch located at 850 Twin Rivers Drive was responsible for the delivery of the certified mail to his family. It failed to make such delivery and lost the pieces of mail. This delivery failure may prevent Plaintiff from moving closer to home.

Plaintiff does not expressly state anywhere in his filing that he is proceeding pursuant to 42 U.S.C. § 1983. He merely indicates that he is asserting a civil rights cause of action relatingto the alleged failure of mail delivery. To the extent that Plaintiff's complaint can be construed as asserting a § 1983 claim against the USPS, the Court will begin its analysis there.

42 U.S.C. § 1983 permits the recovery of damages for constitutional violations by officers acting under color of state law. Hernandez v. Mesa, 140 S. Ct. 735, 747 (2020). "A § 1983 claim must present two elements: (1) that there was the deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law." Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003). Neither the United States nor its various federal agencies can be sued under § 1983 because they do not act under color of state law. Franklin v. Henderson, No. 00-4611, 2000 WL 861697, at *1 (6th Cir. June 20, 2001) ("The federal government and its officials are not subject to suit under 42 U.S.C. § 1983."); Dillard v. United States Postal Serv., No. 15-2649-JDT-DKV, 2016 WL 4180022, at *3 (W.D. Tenn. Aug. 5, 2016) (citing Franklin in concluding that USPS was not subject to suit under § 1983). The USPS is an agency of the United States pursuant to the Postal Reorganization Act, 39 U.S.C. § 101 et seq. See Dolan v. U.S. Postal Serv., 546 U.S. 481, 483, 126 S. Ct. 1252, 1255, 163 L. Ed. 2d 1079 (2006). Consequently, Plaintiff cannot pursue a § 1983 claim against the USPS. Dillard, 2016 WL 4180022, at *3.

A "'more limited'" "'federal...