Alves v. United States Postal Service et al

Filing 28

Pending are the Plaintiff's Motion to Consolidate Cases (Docket # 12) and theDefendants' motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the Amended Complaint for lack of jurisdiction and for failure to state a claim upon which relief may be granted (Docket # 18). For the following reasons, the Defendants' Motion is ALLOWED and the Plaintiff's Motion is DENIED AS MOOT. See attached Order and Memorandum. (Chernetsky, James)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
DAVID A. ALVES,
Plaintiff,
v.
UNITED STATES POSTAL SERVICE
and JOHN KEHOE,
Defendants.

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Civil Action No. 12-12152-LTS

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
AND PLAINTIFF’S MOTION TO CONSOLIDATE
May 31, 2013
SOROKIN, C.M.J.
Pending are the Plaintiff’s Motion to Consolidate Cases (Docket # 12) and the
Defendants’ motion pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss the Amended
Complaint for lack of jurisdiction and for failure to state a claim upon which relief may be
granted (Docket # 18). For the following reasons, the Defendants’ Motion is ALLOWED and
the Plaintiff’s Motion is DENIED AS MOOT.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff, David A. Alves, is a resident of Taunton, Massachusetts. Docket # 2 at ¶

3.1 Defendant John Kehoe is a Postal Inspector employed by the Defendant United States Postal

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In keeping with the standard of review applicable to motions brought pursuant to Fed.
R. Civ. P. 12, the factual allegations of the Amended Complaint are recited herein as if true.
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Service. Id. at ¶ 4. On January 13, 2011, Kehoe sought and received a search warrant from the
United States District Court in Rhode Island relating to a package addressed to “John Couture,
443 Weir Street, Taunton, MA 02780,” which Kehoe believed contained a controlled substance.
Id. at ¶¶ 7-8. A subsequent search revealed that the package contained marijuana. Id. at ¶ 9.
On the same day, Massachusetts State Trooper Paul Baker sought and received an arrest
and search warrant from the Massachusetts District Court in Bristol County for any person who
accepted the package described, supra. Id. at ¶¶ 10, 12. Baker’s application referred to a
warrant to be executed at “44 Weir Street” (rather than 443 Weir Street), but also made reference
to a “package for 443 Weir Street.” Id. at ¶ 10. In his warrant application, Baker did not address
the fact that the property in question has more than one unit and more than one street address.
Id. at ¶ 11.
The warrant issued by the state court commanded a search for the following property:
All controlled substances which have been manufactured, dispensed, distributed,
acquired, in violation of Chapter 94C, specifically Marijuana, a Class D substance, which
is packaged inside of a Postal Package bearing the tracking number of EG821302754US,
address [sic] to John Couture 443 Weir Street, Taunton, MA, and found to contain
Marijuana. This will be anticipatory [sic] warrant with the triggering event being the
acceptance or acquisition of the package listed above. The warrant will be for the
retrieval of the above mentioned package containing Marijuana.
The warrant authorized the search for the package addressed to 443 Weir Street at:
44 Weir Street, Taunton, MA. A gray, two story, multi-unit building, with white trim and
a gray front door that faces Weir Street. The driveway is to the left of the building when
facing the front door. There is a 443 to the right side of the front door facing Weir Street.
Other officers involved in this investigation are familiar with the residence.
Finally, the warrant also identified the persons against whom the officers could serve the
warrant. Specifically, it authorized the search at the noted Weir Street address and “on the
person or in the possession of: Anyone who accepts the package for 443 Weir Street, Taunton,
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containing Marijuana.” Docket #18-3 at 2.
Also on the same day, Kehoe attempted delivery of the package at 443 Weir Street. Id. at
¶ 14. Kehoe (or at least the United States Postal service generally) was aware that the building at
that address had numerous apartments located at two different street addresses. Id. at ¶ 15.
Kehoe attempted to deliver the package at 2 Forest Street, Unit # 2 (located in the same building
as 443 Weir Street). Id. at ¶ 16.
Receiving no response at Unit # 2, Kehoe knocked on the door of 2 Forest Street, Unit #
4. Id. at ¶ 17. Alves (who was not a resident) answered the door. Id. at ¶¶ 18, 24. Kehoe asked
Alves if he was expecting a package, and Alves said that he was. Id. at ¶ 19. Kehoe handed
Alves a blank US Postal Form 3849 for his signature. Id. at ¶ 20. Alves gave the form to John
Rodriguez, the occupant of Unit # 4, who signed the form and returned it to Kehoe. Id. at ¶ 21.
Id. Kehoe delivered the package, which Rodriguez and Kehoe took into the apartment. Id. at ¶
22. Alves did not touch the package. Id. at ¶ 23. Shortly thereafter (and without ever touching
the package or signing for it), Alves was arrested. Id. at ¶ 26. Alves presented a somewhat
different set of allegations in his claim submission to the Postal Service. There he alleged that
after Rodriguez “took physical possession of the package [it] was immediately retrieved from the
premises by the Massachusetts State Police.” Docket #18-2 at 3.
Alves was charged with possession with intent to distribute a Class D substance,
conspiracy to violate the drug laws and violating the provisions of the drug laws in a school
zone, all in violation of Massachusetts law. Id. at ¶ 27. Alves remained in custody between
January 13, 2011 and April 13, 2011, when the charges against him were dismissed. Id. at ¶¶ 2829.

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On June 28, 2012, Alves brought suit against the United States Postal Service and Kehoe
in the United States District Court of Rhode Island. Docket # 1. On June 29, 2012, he amended
his Complaint. Docket # 2. He brought claims pursuant to the Federal Tort Claims Act alleging
that Kehoe negligently delivered the package to the wrong address, resulting in his arrest without
probable cause and detention, false imprisonment, abuse of process and malicious prosecution.
Id. at ¶ 31. Alves also brought the same claims pursuant to 42 U.S.C. § 1983. Id. at ¶ 34.
Also on June 29, 2012, Alves brought suit against Massachusetts State Police Troopers
Paul Baker and William Donnelly in the Commonwealth of Massachusetts’s Bristol County
Superior Court arising from the same nucleus of facts and pursuant to the Massachusetts Tort
Claims Act and 42 U.S.C. § 1983. Alves v. Baker et al., 12-cv-11308-LTS, Docket # 1-1. On
July 18, 2012, the State Police Defendants removed that action to this Court. 12-cv-11308-LTS,
Docket # 1.
On November 19, 2012, the above-entitled action was transferred to this District. Docket
# 10. On November 26, 2012, Alves moved to consolidate the above-entitled action with Alves
v. Baker, et al., (i.e., the removed action he’d brought against the State Trooper Defendants).
Docket # 12. On December 21, 2012, Kehoe moved to dismiss the Amended Complaint
pursuant to Fed. R. Civ. P. 12(b)(1) (as lacking subject matter jurisdiction) and 12(b)(6) (as
failing to state a claim upon which relief may be granted). Docket # 18.
II.

APPLICABLE STANDARD OF REVIEW
“Rule 12(b)(1) is the proper vehicle for challenging a court’s subject matter jurisdiction.”

Valentin v. Hospital Bella Vista, 254 F.3d 358, 362–363 (1st Cir.2001). Federal courts are
courts of limited jurisdiction, and for that reason, federal jurisdiction is never presumed.

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Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). The party asserting jurisdiction (here,
Alves) has the burden of demonstrating the existence of federal jurisdiction. Id. A court should
treat all well-pleaded facts as true and provide the Plaintiff the benefit of all reasonable
inferences. Fothergill v. United States, 566 F.3d 248, 251 (1st Cir.2009). Dismissal is only
appropriate when the facts alleged in the complaint, taken as true, do not support a finding of
federal subject matter jurisdiction. Id. Where, as here, “there is some doubt about” subject
matter jurisdiction, consideration of documents attached to the supporting memorandum is
appropriate (see Docket #s 18-1, 18-2). Coyne v. Cronin, 386 F.3d 280, 286 (1st Cir.2004);
Dynamic Image Technologies, Inc. v. U.S., 221 F.3d 34, 37 (1st Cir.2000) (when presented with
Rule 12(b)(1) motion, court “may consider extrinsic materials and, to the extent it engages in
jurisdictional factfinding, is free to test the truthfulness of the plaintiff's allegations”).
To survive a motion to dismiss under Rule 12(b)(6), 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, — U.S. —, 129 S.Ct. 1937, 1949 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The court “must accept all well-pleaded facts alleged in the Complaint as true
and draw all reasonable inferences in favor of the plaintiff.” Watterson v. Page, 987 F.2d 1, 3
(1st Cir.1993). This “highly deferential” standard of review “does not mean, however, that a
court must (or should) accept every allegation made by the complainant, no matter how
conclusory or generalized.” United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir.1992).
Dismissal for failure to state a claim is appropriate when the pleadings fail to set forth “factual
allegations, either direct or inferential, respecting each material element necessary to sustain
recovery under some actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25 (1st

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Cir.1997)(quoting Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988) (internal
quotation marks omitted). The tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Iqbal, 129 S.Ct. at 1949.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. The Court's assessment of the pleadings is “context-specific,”
requiring “the reviewing court to draw on its judicial experience and common sense.”
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009)(quoting Iqbal, 129 S.Ct. at 1949).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief." Id.
III.

DISCUSSION
Count One - Negligence Under the Federal Tort Claims Act 2
The United States, as sovereign, is immune from suit unless it has consented to be sued.

Skwira v. U.S., 344 F.3d 64, 72 (1st Cir.2003) (citing United States v. Mitchell, 445 U.S. 535,
538 (1980)). Although the Federal Tort Claims Act (FTCA) expressly permits individuals to sue
the government “for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment” (28 U.S.C. § 1346(b)), the FTCA also carefully
circumscribes its waiver of the sovereign immunity by carving out many statutory exceptions to

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The Amended Complaint contains a claim identified as “Count Two: 42 U.S.C. § 1983"
(see Docket # 2 at ¶¶ 33-34), but it does not contain a separately-delineated Count One. Context
makes clear, however, that Alves intended to bring Count One for negligence under the FTCA as
described supra, and the Parties have each briefed the motion as if that was the case. See, Id. at
¶¶ 31-32. The original Complaint contained the identical error. Docket # 1.
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the waiver. Id. These exceptions to the waiver of sovereign immunity include, “[a]ny claim
arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28
U.S.C. § 2680(b). Thus, the United States is immune from suits alleging negligent delivery of
the mail.
When Kehoe delivered the package on January 13, 2011, he was not executing a state
search warrant. The state warrant neither authorized nor commanded the delivery of the
package. Rather, the delivery of the package was the responsibility of the United States Postal
Service. Kehoe discharged that duty on behalf of the Postal Service. The state search warrant
authorized a search for the package after its delivery. Thus, each of Alves’s contentions
concerning the manner in which Kehoe delivered the package – i.e., that he went to the wrong
address, that he knocked on various doors, that he presented a blank US Postal Form 3849 –
concerns the delivery of the mail and not the execution of a search warrant. That law
enforcement officers presumably coordinated their execution of the warrant with the delivery of
the mail in question does not alter the fact that Kehoe’s actions were not themselves the
execution of the warrant, but rather the delivery of the mail.
Alves’s describes his claim as one of negligent delivery, in his opposition to the motion
to dismiss. See Docket # 22 at 8 (“The claim is that the Defendant Kehoe . . . delivered the
package to a wrong address) (emphasis added). Similarly, he asserted that “Kehoe knew, or
should have known[,] of the correct postal address for where he was delivering the package,” in
his FTCA presentment. Docket #18-2 at 3.
Because the Court concludes that Alves’ claim against Kehoe concerns the negligent
delivery of the mail, the Court need not address Kehoe’s alternative arguments that the

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discretionary functions exception to the FTCA also applies to bar Alves’s claim, or that the
conduct described does not successfully state a claim for negligence, abuse of process, malicious
prosecution or common law false arrest (each of which arises factually from Kehoe’s delivery of
the mail, and is barred for the reasons discussed, supra).3
Accordingly, the Court lacks subject matter jurisdiction over Count One of the
Complaint, and that claim is hereby DISMISSED.
Count Two - Section 1983
In Count Two of the Complaint, Alves brings a claim pursuant to 42 U.S.C. § 1983
against the United States Postal Service and Kehoe (in both his individual and official capacities)
for allegedly violating his Fourth Amendment rights. Docket # 2 at ¶¶ 33-34.
There is no viable Section 1983 claim against either the United States Postal Service
directly, or against Kehoe in his official capacity. An official capacity suit is simply another way
of pleading a claim against the governmental entity which employs the government official
defendant. See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell v. New York City Dep't
of Social Servs., 436 U.S. 658, 690 n. 55 (1978). 42 U.S.C. § 1983 provides a federal cause of
action against persons who violate an individual’s civil rights under color of state law. 42 U.S.C.
§ 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory . . . subjects, or causes to be subjected, any citizen of the United States

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This is not the case in which the Amended Complaint makes additional factual
allegations against Kehoe (separate from the delivery of the mail) to support the false arrest,
malicious prosecution and abuse of process claims. Rather, Alves contends that Kehoe “knew or
should have known that his actions would result in the deprivation of Plaintiff’s civil liberty,
freedom, and constitute a violation of 42 U.S.C. 1983 in addition to other federal and state laws.”
Docket #18-2 at 3.
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or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress”) (emphasis added). Not every
potential defendant, however, is a “person” within the meaning of Section 1983. The United
States Supreme Court applies a “longstanding interpretive presumption that ‘person’ does not
include the sovereign.” Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S.
765, 780 (2000). See, e.g., Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1105-06, 1107
(D.C.Cir.2005) (holding that a federal agency is not a “person” subject to § 1983 liability). The
United States has not waived its sovereign immunity with respect to suits brought under the civil
rights statutes, and such claims are barred by sovereign immunity. See Davis v. United States
Dep’t of Justice, 204 F.3d 723, 726 (7th Cir.2000); Affiliated Prof’l Home Health Care Agency
v. Shalala, 164 F.3d 282, 286 (5th Cir.1999). Accordingly, the Court lacks subject matter
jurisdiction over Count Two to the extent directed against the Postal Service and Kehoe in his
official capacity.
With respect to the claim against Kehoe in his individual capacity, Section 1983 claims
(by the terms of the statute) concern the actions of state agencies or employees and do not apply
to the United States or its agencies and employees such as Kehoe. See District of Columbia v.
Carter, 409 U.S. 418, 424-25 (1973) (the actions of the Federal Government and its officers are
at least facially exempt from proscriptions of Section 1983). Alves correctly asserts in opposing
Kehoe’s motion to dismiss that a plaintiff may nevertheless bring a Section 1983 action against
federal employees who conspire or act in concert with state officials to deprive a person of his
civil rights under color of state law. See Docket # 22 at 13 (citing McCloskey v. Mueller, 385

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F.Supp.2d 74, 86-87 (D.Mass.Sept. 6, 2005) (Lindsay J.)).
The Amended Complaint, however, does not contain allegations sufficient to plausibly
support such liability. Judge Lindsay noted in McCloskey that such a plaintiff must show that
“the federal officials acted or conspired to act under color of state law; it is not enough that they
simply acted in concert with state officials to deprive plaintiff of a constitutional right.”
McCloskey, 385 F.Supp.2d at 87 (citing Krohn v. United States, 578 F.Supp. 1441, 1447-48
(D.Mass.Oct. 4, 1983) (Zobel, J.) (emphasis in original) reversed in part on other grounds, 742
F.2d 24 (1st Cir.1984)). The only actions alleged to have been taken by Kehoe (i.e., obtaining a
federal warrant, delivering the mail to the wrong address, providing a blank postal form) were
taken in furtherance of his delivery of the mail. There is no plausible allegation in the Amended
Complaint that Kehoe conspired under state law with the state actors to deprive Alves of his
rights under the U.S. Constitution. Rather, in Count Two, Alves alleges a violation of his Fourth
Amendment rights arising from Kehoe’s delivery of the package, e.g., the manner in which he
delivered it and the address to which he delivered it. Neither of these actions were taken under
color of state law nor do they support a claim of conspiracy to deprive Alves of his federal rights
under color of state law.4

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Earlier in the Complaint, Alves does allege that Kehoe “did not have Probable [sic]
cause to arrest the Plaintiff.” Docket #2 at ¶ 25. The Amended Complaint, however, lacks any
express allegation that Kehoe actually arrested or charged Alves. See id. at ¶ 26. The
Application for Criminal Complaint was filed in state court by a Massachusetts State Trooper.
Docket #18-2 at 5. It does not contain Kehoe’s name. There is also an allegation that the
“unlawful arrest” and “subsequent prosecution” flowed from Kehoe’s actions. Id. at ¶ 31. Even
if these allegations support a reasonable inference that Kehoe assisted or participated in
someway in the arrest and prosecution of Alves, these threadbare allegations do not plausibly
state a claim either that Kehoe acted under color of state law to deprive Alves of his rights
secured by the Fourth Amendment or that he conspired with state officials to do the same.
Moreover, at the May 30 hearing on the motion, Alves’s counsel conceded that Kehoe did not
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Although the law on this point is unsettled, and although Alves contends that it is
sufficient for purposes of alleging that Kehoe acted under the color of state law that he alleges
concerted action by Keogh with state officials, Alves’s Section 1983 claim against Kehoe would
nevertheless fail for other reasons. A claim under Section 1983 has two “essential elements”: the
defendant must have acted under color of state law, and the Defendant’s conduct must have
deprived the plaintiff of rights secured by the Constitution or by federal law. Gagliardi v.
Sullivan, 513 F.3d 301, 306 (1st Cir.2008). The second element requires the plaintiff to show
“that the [defendant's] conduct was the cause in fact of the alleged deprivation.” Id. Because
Alves concedes (see n. 4, supra) that Kehoe did not arrest him, there is no liability for Kehoe
under Section 1983.5
Accordingly, Count Two also does not state a claim to the extent it brings claims against
Kehoe individually, and Count Two is DISMISSED.
IV.

CONCLUSION
For the foregoing reasons, the Defendants’ Motion to Dismiss (Docket # 18) is

ALLOWED. The Amended Complaint is DISMISSED. For that reason, the Plaintiff’s Motion
to Consolidate Cases (Docket # 12) is DENIED AS MOOT.

/s / Leo T. Sorokin
Leo T. Sorokin
Chief United States Magistrate Judge

arrest Alves.
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Alves does not bring a claim in Count Two arising from the search itself, nor does he
allege that Kehoe was the supervisor of the arresting officer(s).
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