Thompson v. United States
| Decision Date | 11 July 2018 |
| Docket Number | 17 Civ. 5017 (KPF) |
| Parties | ADDISON THOMPSON, Plaintiff, v. UNITED STATES OF AMERICA, UNITED STATES POSTAL SERVICE, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Addison Thompson, proceeding pro se, seeks relief against the United States and the United States Postal Service ("USPS") (collectively, "Defendants") for the removal and improper storage of his artwork. Plaintiff alleges that in 2008, the USPS agreed to display the first installment of his two-part 9/11 memorial photographic mural ("Part I") at the Peter Cooper Post Office ("Cooper Post Office") in New York City. Plaintiff further alleges that in 2010, the USPS erected the second installment of his mural ("Part II") at the nearby Peter Stuyvesant Post Office ("Stuyvesant Post Office," and together with the Cooper Post Office, the "Post Offices"). Sometime in 2013, the Stuyvesant Post Office relocated, during which the components of Part II — consisting of Plaintiff's photographic images printed on canvas — were removed from the walls and stored in the basement of the new facility. The photographs were allegedly damaged through the process of their removal and storage, leading Plaintiff to seek relief under the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A. Given Plaintiff's pro se status and the solicitude required on account thereof, the Court construes the pleadings also to allege claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 500-596, and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680.
Pending before the Court is Defendants' motion to dismiss. For the reasons set forth in the remainder of this Opinion, Defendants are correct that the Court lacks subject matter jurisdiction to hear Plaintiff's claims. Accordingly, the Court grants Defendants' motion in full.
Plaintiff's grievances stem from the alleged damage to Part II of a two-part photographic mural created to memorialize the terrorist attacks of September 11, 2001. Each Part illustrates an individual panoramic landscape, with Part I depicting two broken stone towers and Part II conveying a scene in the Hudson River Valley, contrasting "the dramatic shadows cast by leaves as a fireworks of light symbolic of the 9/11 event." (Compl. 2). In 2008, Plaintiff verbally agreed with the USPS to install the first part of his "9/11 memorial photographic composite mural project" at the Cooper Post Office, consisting of 12 "high-resolution digital images printed on canvas to mimic the appearance of a painting." (Id. at 1-2). Two years later, in 2010, Plaintiff agreed to install a second part of the mural project, consisting of 13 similarly produced digital images printed on canvas, in the Stuyvesant Post Office. (Pl. Opp. 1-2). Plaintiff further agreed to "remove the murals, upon request." (Id. at 2).3
In 2011, the Stuyvesant Post Office relocated to "a smaller customer service center." (Compl. 2). Following the relocation, Plaintiff twice attempted to contact a facilities manager to inquire into the whereabouts of his mural. (Id. at 3). He received no response. (Id.). Plaintiff does not specify when he discovered the fate of his mural; however, at some point in 2013 or 2014, Plaintiff learned that his photographs were being kept in the basement of the 23rd Street Post Office, bound and placed in cloth Postal Service carts. (Id.). Plaintiff thereafter "attempted to make contact with the Postal Inspector to discuss the removal" of his photographs. (Id.). Plaintiff wrote to the 23rd Street Post Office directly to request permission "to recreate the murals or create new murals." (Id. at 3). His request was denied, but Plaintiff was "invited to recover his mural[ ] in the Post Office basement." (Id.). After finding an incomplete collection of the photographs in the basement "damaged on the front and torn on the back," Plaintiff refused to accept them. (Id.).
In 2015 and 2016, Plaintiff continued to communicate with the USPS — this time online — regarding the damaged mural. (Compl. 4). Plaintiff's initial efforts to contact the USPS through his online account succeeded, and he was eventually persuaded to direct his queries to the 23rd Street Post Office following the 2016 holiday season. (Id.). In January 2017, Plaintiff attempted to reinitiate contact with the 23rd Street Post Office, but his overture was met with silence, precipitating the present suit. (Id.). Throughout, Plaintiff has kept in his possession the negatives of the photographs at issue, and with them the ability to reprint the photographs and recreate the damaged murals. (See Dkt. #17 at 5:15-17 ( )).
On June 30, 2017, Plaintiff filed a Complaint against the USPS and the United States. (Dkt. #2). Defendants filed a motion to dismiss the Complaint on October 2, 2017. (Dkt. #8). Because they did so without having first filed a pre-motion letter, as required under Rule 4A of the Court's Individual Rules of Practice in Civil Cases, the Court terminated that motion. (Dkt. #11). Shortly thereafter, on October 6, 2017, Defendants filed a letter requesting a pre-motion conference (Dkt. #12), which conference was held on November 15, 2017 (see Dkt. #17 (transcript of conference)). The Court granted Defendants 60 days to determine whether they could accommodate Plaintiff's requests to reinstall his photographic mural. (Id.). On January 11, 2018, Defendants filed a letter declining to do so. (Dkt. #20).
The Court issued a briefing schedule for Defendants' motion to dismiss directing Defendants to file their opening brief by February 9, 2018, Plaintiff to file his opposition brief by March 16, 2018, and Defendants to file their reply by March 23, 2018. (Dkt. #21). All briefs were timely filed. (Dkt. #23, 25, 26).
In considering both a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, "the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has subject matter jurisdiction necessary to consider the merits of the action." Wong v. CKX, Inc., 890 F. Supp. 2d 411, 414-15 (S.D.N.Y. 2012). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Ultimately, a "plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Id.
In resolving a Rule 12(b)(1) motion, "the district court must take all uncontroverted facts in the complaint ... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). Given Plaintiff's pro se status, he is entitled to a special solicitude, one that requires "liberal construction of pleadings, [and] motion papers" to avoid the "forfeit[ure] [of] important rights through inadvertence" occasioned by pro se litigants' general inexperience and lack of formal legal training. Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Therefore, pleadings and submissions drafted by pro se litigants must be read "to raise the strongest arguments they suggest." McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (quoting Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007)). A district court must also "grant a pro se litigant leave to amend 'at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.'" Ganley v. City of New York, — F. App'x —, No. 17-1704, 2018 WL 2383533, at *2 (2d Cir. May 25, 2018) (summary order) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)).
When considering a motion to dismiss under Rule 12(b)(6), a court should "draw all reasonable inferences in Plaintiff's favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted). Thus, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court is not, however, obligated to accept legal conclusions disguised as factual allegations. See Rolon v. Hennenman, 517 F.3d 140, 148-49 (2d Cir. 2008); see also Iqbal, 556 U.S. at 678.
"While Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [a plaintiff's] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). "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.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover, ...
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