Richter v. United States Postal Service
MEMORANDUM AND ORDER: This case is dismissed without prejudice for lack of federal subject-matter jurisdiction. Judgment shall be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(ADB)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES POSTAL SERVICE,
Plaintiff, a non-prisoner, has been given leave to proceed in forma pauperis.
(Filing 5.) The court now conducts an initial review of Plaintiff’s claims to determine
whether summary dismissal is appropriate under 28 U.S.C. § 1915(e)(2) (requiring
the court to dismiss actions filed in forma pauperis if they are frivolous or malicious,
fail to state a claim on which relief may be granted, or seek monetary relief against
a defendant who is immune from such relief).
I. SUMMARY OF COMPLAINT
Plaintiff sues the United States Postal Service for negligently failing to deliver
an order issued by this court in another one of her cases, causing the case to be
temporarily dismissed due to her failure to respond to the order. Plaintiff states that
the case was revived after she brought the matter to this court’s attention, but “[t]ime
was lost and it was costly” because had she properly received the court’s order, her
case “would have and should have been heard before the Chinese flu situation stalled
the Def. in that case’s investigation/and their Answer.”1 (Filing 1.)
Although Plaintiff does not identify which case was allegedly affected by
the lost mail, the court believes it to be Richter v. Social Security Administration,
No. 8:19CV340 (D. Neb.). In that case, see Filing 8 (Memorandum and Order
dismissing case for failure to file amended complaint) (now withdrawn); Filing 9
(Judgment dismissing case without prejudice) (now set aside and vacated); Filing 10
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Under 28 U.S.C. § 2674 (Westlaw 2020), part of the Federal Tort Claims Act
(“FTCA”), “[t]he United States shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same extent as a private
individual under like circumstances . . . .” However, such liability cannot result from
claims covered by the “postal-matter exception”—that is, “[a]ny claim arising out
of the loss, miscarriage, or negligent transmission of letters or postal matter.” 28
U.S.C. § 2680(b). This exception bars “suits for ‘injuries arising, directly or
consequentially’” from the United States Postal Service’s failure “‘to deliver mail in
a timely manner to the right address.’” Najbar v. United States, 649 F.3d 868, 870
(8th Cir. 2011) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 487, 489 (2006)).
Claims to which the postal-matter exception applies should be dismissed for lack of
subject-matter jurisdiction. Najbar, 649 F.3d at 870.
Here, Plaintiff’s claim is one explicitly barred by the postal-matter
exception—a claim for injury arising from the United States Postal Service’s failure
to timely and correctly deliver this court’s order in one of Plaintiff’s cases pending
before this court. Therefore, Plaintiff’s claim must be dismissed for lack of subjectmatter jurisdiction.2
IT IS ORDERED:
(Plaintiff’s objection to Order dismissing case without prejudice for failure to file
amended complaint, stating she never received Order allowing such amendment);
Filing 13 (granting Plaintiff’s objection, which was construed as Fed. R. Civ. P.
59(e) or 60(b) motion; allowing amended complaint to be filed within 30 days).
Even if Plaintiff’s claim was not barred under the above provisions, it would
be dismissed for failure to exhaust her administrative remedies. Nielsen v. United
States, 639 F. Supp. 2d 1020, 1023 (D. Neb. 2009) (describing FTCA administrativeexhaustion requirement, which is prerequisite to filing of FTCA claim).
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This case is dismissed without prejudice for lack of federal subjectmatter jurisdiction.
Judgment shall be entered by separate document.
DATED this 14th day of October, 2020.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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