Jonas Dennis v. Postal Service, et al

Filing

UNPUBLISHED OPINION FILED. [13-30363 Affirmed ] Judge: CES , Judge: EGJ , Judge: SAH Mandate pull date is 06/09/2014 [13-30363]

Case: 13-30363

Document: 00512600674

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Date Filed: 04/17/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-30363
Summary Calendar

FILED
April 17, 2014
Lyle W. Cayce
Clerk

JONAS JERON DENNIS,
Plaintiff-Appellant,

v.

UNITED STATES POSTAL SERVICE; AMY MCDONALD,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:12-CV-1254
Before STEWART, Chief Judge, and JOLLY and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jonas Jeron Dennis appeals the dismissal of his
claims against the United States Postal Service (“Postal Service”) and one of
its employees, Amy McDonald (collectively, “Defendants”) brought pursuant to
the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 1346(b)(1). For the reasons
herein, we affirm the district court’s dismissal.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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I.
The Dennises brought suit under the FTCA, contending that mail carrier
McDonald had intercepted and failed to deliver and/or destroyed their mail on
at least three occasions. Defendants filed a motion to dismiss for lack of
jurisdiction and failure to state a claim under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). The district court referred the motion to a magistrate
judge for a report and recommendation. The magistrate judge recommended
dismissal of the claims against McDonald, explaining that the FTCA does not
create a cause of action against individual defendants acting within the scope
of their employment and that the Dennises had judicially admitted that
McDonald was being sued for actions taken during the course of her duties as
a postal carrier. The magistrate judge also recommended dismissal of the suit
against the Postal Service because the case fell under an exception to the
United States’ waiver of sovereign immunity. The Dennises objected to part of
the report—though not to the portion regarding judicial admission. After
reviewing the record de novo, the district judge dismissed the claims for the
reasons stated in the report. Dennis timely appealed. 1
II.
Dennis does not appeal the dismissal of the claim against the Postal
Service. He argues only that his claim against McDonald, as an individual,
should not have been dismissed. In particular, he contends that the district
court erred in holding that he judicially admitted that the actions he attributes
to McDonald were carried out in the scope of her employment.
Before evaluating the district court’s analysis, we must determine the
appropriate standard of review. Defendants argue that Dennis failed to object
specifically to the magistrate judge’s finding regarding Dennis’s judicial

1

Dennis alone appealed the judgment; his wife is not listed as an appellant.

2

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admission. While such a failure would normally limit our review to one for
plain error, we do not require specific objections as a prerequisite to full review
when the district court has engaged in de novo review.

Meister v. Texas

Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th Cir. 2000). Here, the district
court engaged in a de novo review. We will, therefore, also apply a de novo
standard of review. See id.
Under the FTCA, the United States is liable for injuries “caused by the
negligent or wrongful act or omission of any employee of the Government.” 28
U.S.C. § 1346(b)(1). Where an individual acts within the scope of their federal
employment, the FTCA authorizes suit against the United States. Id. Under
no circumstances does the FTCA create a cause of action against individuals.
See 28 U.S.C. § 2679(b). Therefore, to bring suit against McDonald for the
actions alleged in this case, Dennis would have to state another cause of action
against McDonald.
In the complaint, the opposition to the motion to dismiss, and the briefs
before this court, Dennis repeatedly states that this suit was brought pursuant
to the FTCA. Although he mentions that McDonald is a defendant in her
individual capacity, he never indicates any cause of action other than that
available in the FTCA. 2 Thus, we need not decide whether Dennis judicially
admitted that McDonald acted in the scope of her employment. We may affirm
for any reason supported by the record. United States v. Gonzalez, 592 F.3d
675, 681 (5th Cir. 2009) (per curiam). We hold that the district court properly

In the opposition to the motion to dismiss, Dennis alleges that McDonald acted
contrary to 18 U.S.C. §§ 1701 and 1708. These, however, are criminal statutes that do not
create a private right of action. See Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001)
(holding that private rights of action to enforce federal law must be created by Congress;
courts may not create a cause of action absent statutory intent).
2

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dismissed the claim against McDonald because the statute pursuant to which
the suit was brought does not create a cause of action against individuals.
Accordingly, we AFFIRM the district court’s dismissal.

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