McClintock v. United States, Case No. 3:18-cv-01937-SB

• Decision Date: 18 March 2020
• Docket Number: Case No. 3:18-cv-01937-SB
• Parties: CARMEN ELSA MCCLINTOCK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of Oregon

CARMEN ELSA MCCLINTOCK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

Case No. 3:18-cv-01937-SB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 18, 2020

AMENDED FINDINGS AND RECOMMENDATION

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Carmen Elsa McClintock ("McClintock"), a self-represented litigant, filed a complaint against a United States Postal Service ("USPS") employee from the Dallas, Oregon, post office. The Court substituted the United States as the appropriate defendant. The United States now moves to dismiss McClintock's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, or for failure to state a claim under Rule 12(b)(6). For the reasons set forth below, the Court recommends that the district judge grant the United States' motion to dismiss.

///

///

FACTUAL BACKGROUND

On November 1, 2018, McClintock filed this action, complaining that the USPS is delivering McClintock's mail to a temporary cluster box unit instead of delivering her mail to the mailbox affixed to her gate, based on an erroneous view that McClintock has engaged in threatening behavior.

On April 29, 2019, the United States filed a notice of substitution, substituting the United States for the USPS employee as the named defendant. On December 23, 2019, the United States moved to dismiss McClintock's complaint. The Court received McClintock's response on January 27, 2020.

ANALYSIS

I. LEGAL STANDARD

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes motions to dismiss for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that "[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists") (citations omitted). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to a motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

When reviewing the sufficiency of a complaint filed by a self-represented litigant, the court must liberally construe the pleading and accept as true all factual allegations contained therein. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

///

///

II. DISCUSSION

The United States argues that the Court lacks subject matter jurisdiction over this action because McClintock's claims relate to the delivery of her mail, and McClintock was required to file her complaint with the Postal Regulatory Commission. The Court agrees.

A. Subject Matter Jurisdiction

1. Applicable Law

Pursuant to the Postal Accountability and Enhancement Act of 2006, "[a]ny interested person . . . who believes the Postal Service is not operating in conformance with the requirements of the provision . . . may lodge a complaint with the Postal Regulatory Commission in such form and manner as the Commission may prescribe." 39 U.S.C. § 3662(a). Any complaints regarding "prompt, reliable and efficient services to patrons" fall under Section 3662's purview. 39 U.S.C. § 3662(a). The appropriate court for appellate review is the United States Court of Appeals for the District of Columbia. 39 U.S.C. § 3663.

2. Analysis

McClintock alleges that the USPS is wrongly delivering her mail to a temporary cluster box unit, instead of to the mailbox affixed to her gate, based on an erroneous view that McClintock has engaged in threatening behavior. (Compl. at 8-9.) The United States argues that McClintock's "complaint primarily raises service-related complaints that are not properly before the Court." (Def. Mot. to Dismiss at 6.)

In Striley v. United States Postal Service, the plaintiff alleged negligence and intentional tort claims against the USPS because the defendant "crammed his box full of advertising materials" and "failed to deliver an article of mail." Striley v. U.S. Postal Serv., No. 16-cv-07233-HRL, 2017 WL 513166, at *1 (N.D. Cal. Feb. 8, 2017). The district court granted the defendant's motion to dismiss, reasoning that the plaintiff's "claims are rate- and service-related." Id. at *3. The plaintiff was, in effect, "dissatisfied with aspects of the service he [wa]s receiving" and "[a]s such, [the plaintiff] must file his complaint before the Postal Regulatory Commission." Id.; see also LeMay v. U.S. Postal Serv., 450 F.3d 797, 800-01 (8th Cir. 2006) (affirming dismissal of complaint about Priority Mail service because the Postal Regulatory Commission has exclusive jurisdiction over service-related complaints); Murphy v. U.S. Postal Serv., No. C 14-02156 SI, 2014 WL 4437731, at *4 (N.D. Cal. Sep. 9, 2014) (dismissing with prejudice the plaintiff's discrimination and contract claims as service-related claims over which the district court lacks subject matter jurisdiction where the plaintiff alleged that a postal clerk refused to wait on him at the post office).

Similarly here, McClintock alleges that the USPS did not deliver McClintock's mail to the box affixed to her gate, and she now has to walk down the street to retrieve her mail. (Compl. at 9-10.) McClintock's complaint relates to the mail service that USPS provides to McClintock. As such, "[u]nder 39 U.S.C. Section 3662, the Postal Regulatory Commission has exclusive jurisdiction over such complaints" and "this court lacks subject matter jurisdiction and must dismiss the complaint." Striley, 2017 WL 513166, at *3; see also McDermott v. Potter, No. C09-0776RSL, 2009 WL 2971585, at *3 (W.D. Wash. Sept. 11, 2009) (dismissing complaint regarding postal services for lack of subject matter jurisdiction because "the [Postal Regulatory Commission] has exclusive jurisdiction").

McClintock's exclusive remedy is to file a complaint about her mail service with the Postal Regulatory Commission, and if dissatisfied with the response, she may appeal to the United States Court of Appeals for the District of Columbia.¹ 39 U.S.C. § 3663. Accordingly, theCourt recommends that the district judge dismiss McClintock's complaint for lack of subject matter jurisdiction.

B. Leave to Amend

The Court amends its original Findings and Recommendation to address McClintock's argument in her objections (ECF No. 24) that the Court should allow her to proceed with race and disability discrimination claims against U.S. Postal Service employee Wendy Day in her individual capacity.

There does not appear to be any viable claim that McClintock could state against Wendy Day based on the facts McClintock alleges in her complaint. Specifically, the U.S. Supreme Court has never recognized a "Bivens" claim (see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)) for unconstitutional race discrimination against a U.S. Postal Service employee, and the Supreme Court recently held that courts may not expand the Bivens remedy to new contexts. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857-60 (2017) ("The Court has made clear that [further] expanding the Bivens remedy is now a 'disfavored' judicial activity."); Rodriquez v. Hemit, No. C16-778 RAJ, 2018 WL 3618260, at *3 (W.D. Wash. July 30, 2018) ("The Supreme Court has recognized the appropriateness of Bivens claims in only three contexts: (1) police search and seizure in violation of the Fourth Amendment, Bivens, 403 U.S. at 388; (2) gender discrimination by a congressman in violation of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1978); and (3) deliberate indifference toward a prisoner's medical needs in violation of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 (1980)."); Cole v. Fed. Bureau of Investigation, CV 09-21-BLG-SEH-TJC, 2019 WL 1102569, at *4 (D. Mont. Feb. 7, 2019) ("'[T]he Fifth Amendment has never been the subject of a Bivens claim related to racial discrimination.'") (citation omitted); United States v. Sandwich Isles Commc'ns,398 F. Supp. 3d 757, 784 (D. Haw. 2019) (noting that courts have not recognized Bivens claims against individual federal officials for race discrimination).

With respect to McClintock's claims of disability discrimination, federal employees may not be sued in their individual capacity for claims of disability discrimination. See Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (holding that a public official may not be sued in her individual capacity for disability discrimination in violation of Section 504 of the Rehabilitation Act);² Sai v. Smith, No. 16-cv-01024-JST, 2018 WL 534305, at *8 (N.D. Cal. Jan. 24, 2018) ("Individuals may not be sued in their individual capacity for violations of the Rehabilitation Act.").³

Although the Court does not believe that McClintock can cure the deficiencies in her complaint or state a viable claim against Wendy Day in her individual capacity based on the factsshe alleges in her complaint, the Court recommends that the district judge provide McClintock one opportunity to amend her complaint if she believes she can state a claim against the United States, the U.S. Postal Service, or Wendy Day. See Rodriquez, 2018 WL 3618260, at *5 ("The Court is skeptical that Plaintiff can overcome the jurisdictional deficiencies in his Complaint. Nonetheless, in considering Plaintiff's pro se posture, the Court finds it premature to dismiss this case with prejudice at this juncture. . . . The Court shall thus afford Plaintiff one opportunity to amend his Complaint to cure the deficiencies identified above.").

CONCLUSION

For the reasons stated, the Court recommends that the district judge GRANT the United States' motion to dismiss (ECF No. 18), dismiss McClintock's complaint without prejudice, and set a deadline for McClintock to file an amended complaint.

SCHEDULING ORDER

The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections...