PLATT v. UNITED STATES POSTAL SERVICE et al

Filing 22

ORDER granting defendant's 17 Motion to Dismiss and Directing further proceedings. No partial judgment shall issue at this time. Plaintiff shall report no later than 12/17/09 regarding claims (S.O.) cm. Signed by Judge Sarah Evans Barker on 12/1/2009. (MAC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

TIMOTHY C. PLATT, Plaintiff, vs. UNITED STATES POSTAL SERVICE and CHARLES SMITH, Defendants.

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No. 1:09-cv-347-SEB-DML

Entry Granting Motion to Dismiss and Directing Further Proceedings I. The defendants' motion to dismiss1 (dkt 17) is granted. This conclusion is based on the following facts and circumstances: 1. Insofar as defendant Charles Smith is sued in his official capacity, the claim against him is against the entity by which he is employed. Kentucky v. Graham, 473 U.S. 159, 166 (1985)(explaining that an official capacity suit is "in all respects other than name, to be treated as a suit against the entity . . . for the real party in interest is the entity"). That means, in this case, that any claim against defendant Smith in his official capacity is treated as a claim against his employer, the United States Postal Service ("USPS"). 2. The plaintiff's claim brought pursuant to 42 U.S.C. § 1981 against the USPS is barred by the United States' sovereign immunity. Harrison v. Potter, 323 F.Supp.2d 593, 604 (S.D.N.Y. 2004).

In ruling on the defendants' motion to dismiss, the court has not considered any evidentiary material outside the pleadings. Thus, the motion will not be converted to a motion for summary judgment.

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3. Additionally, no viable claim is asserted pursuant to § 1981 because the alleged misconduct on which the plaintiff's claim is based occurred solely under color of federal law, whereas § 1981 provides for liability for actions that took place under color of state law. Davis v. United States Dep't of Justice, 204 F.3d 723, 725 (7th Cir. 2000); Lee v. Hughes, 245 F.3d 1272, 1277 (11th Cir. 1998). Additionally, the claim under § 1981 is insufficient because the discrimination alleged by the plaintiff is not based on his race, but is based only on the alleged fact that he, as an employee of a postal service contractor, was treated differently than were employees of the USPS. An allegation of discrimination on this basis is outside the scope of the rights secured by § 1981. II. A. No partial final judgment shall issue at this time as to the claims resolved in Part I of this Entry. B. The plaintiff shall report as to the following no later than December 17, 2009: 1. Whether he asserts any claim pursuant to the theory recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 2. 3. sought. The defendant(s) against whom a Bivens claim is asserted. The nature of the Bivens claim (meaning the legal theory) and the relief

4. The factual basis of each Bivens claim ­ meaning "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). IT IS SO ORDERED.

Date: 12/01/2009 Distribution: Timothy C. Platt 2757 Dietz Street Indianapolis, IN 46203 Debra G. Richards United States Attorney's Office [e-mail]

_______________________________ SARAH EVANS BARKER, JUDGE United States District Court Southern District of Indiana