ABULKHAIR v. UNITED STATES POSTAL SERVICE et al
Filing
25
OPINION. Signed by Judge Kevin McNulty on 2/27/15. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Aseem A. ABULKHAIR
Civ. No. 2:13-7796
(KM)(MAH)
Plaintiff,
V.
OPINION
UNITED STATES POSTAL SERVICE and
UNITED STATES OF AMERICA,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the motion of Defendants
United States Postal Service and United States of America (collectively
the “government”) (ECF No. 12) to dismiss the complaint (ECF No. 1) of
Plaintiff Aseem A. Abulkhair pursuant to Fed. R. Civ. P. 12(b)(6). I decide
the motion without oral argument. See Fed. R. Civ. P. 78. For the
reasons set forth below, the motion to dismiss is GRANTED and the
complaint is DISMISSED WITHOUT PREJUDICE.
I.
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BACKGROUND
The plaintiff, Aseem A. Abulkhair, is a resident of New Jersey.
(Compi.
¶ 1).
Abulkhair sues the Postal Service and the United States as
the “employer, governing body, and supervisor” of the Postal Service.
(Compl.
¶5).2
The facts that follow are taken from the complaint (ECF No. 1). They are
assumed to be true solely for the purposes of the motion to dismiss.
Abulkhair emphasizes that each of his allegations apply to the Postal
Service, the United States, as well as unknown co-conspirators. (Compi. ¶16).
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Abulkhair alleges that the government is tampering with his
incoming and outgoing mail because he is a Muslim of Middle Eastern
origin. (Id.
¶ 18).
He alleges that this began “in early 2002 or following the
events of September 11th,” and that it continues to this day. (Id.).
Specifically, he alleges that the government embarked on a “secret
campaign of opening [Abulkhair’s] private mail.
.
.
including all letters
coming from state and federal court and all correspondence coming
within the United States and abroad.” (Id.
¶ 19).
Abulkhair also alleges
that the government intercepted his outgoing mail and “subject[ed] him
to other forms of extreme mental, physical, and economic coercion and
cruelty” by delaying this outgoing mail, which resulted in his incurring
late fees on payments to his creditors. (Id. ¶20).
Abulkhair also alleges that the Postal Service and the United
States entered into a conspiracy with others whose “true names and
capacities” he does not know, and who are therefore not included as
defendants in this action. (Id. ¶J8, 10).
In response to the alleged mail tampering, Abulkhair complained to
the local post office staff and showed them his opened mail. (Id. ¶21). The
local staff provided Abulkhair with contact information for the postal
inspector’s office. (Id.) Abulkhair alleges that after several attempts to
contact the postal inspector’s office, he has not received a reply. (Id.
¶f 2 1—22).
Abulkhair alleges the following causes of action: (1) invasion of
privacy (Id. ¶J24—27); (2) negligence (Id. ¶J28—30); (3) negligent
supervision (Id. ¶J31—35); (4) negligence per se (Id. ¶J36—40); (5)
intentional infliction of emotional distress (Id. ¶{4 1—43); and (6) negligent
infliction of emotional distress (Id. ¶44—48). Abulkhair asks for
For simplicity, I will refer to the defendants as the “government.” I do not
address any potential claims against unnamed individuals.
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damages, an injunction, and any other relief the Court deems just and
proper. (Id. Prayer for Relief).
II.
DISCUSSION
a. Rule 12(b)(6) standard
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or
in part, if it fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing that no
claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n. 9 (3d Cir. 2011). For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true
and all reasonable inferences are drawn in favor of the plaintiff. N.J.
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760
F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiff’s right to relief above a speculative level, so that a claim
is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility
standard is met “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin
to a ‘probability requirement’.
.
.
it asks for more than a sheer
possibility.” Iqbal, 556 U.S. at 678.
As the Third Circuit instructed post-Iqbal, “conclusory or ‘bare
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bones’ allegations will no longer survive a motion to dismiss: ‘threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.’ To prevent dismissal, all civil
complaints must now set out ‘sufficient factual matter’ to show that the
claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 662). “Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.”’ Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).
A plaintiff alleging a conspiracy must plead more than “vague
inferences and allegations.” Coulter v. Allegheny Cnty. Bar Ass’n, 496 F.
App’x 167, 169 (3d Cir. 2012) (citing Twombly, 550 U.S. at 556). “Bare
assertions of joint action or a conspiracy are not sufficient to survive
dismissal at the pleading stage.” Id. Rather, the plaintiff must
“demonstrate[] the existence of any concerted effort” among the
defendants. Id.
Abulkhair is of course appearing pro
Se.
A pro se complaint is “to
be liberally construed,” and, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 93—94 (2007). Nevertheless, it must
meet some minimal standard. “While a litigant’s pro se status requires a
court to construe the allegations in the complaint liberally, a litigant is
not absolved from complying with Twombly and the federal pleading
requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372
F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
b. Rule 12(b)(6) analysis
The government moves to dismiss Abulkhair’s complaint because it
is devoid of substantive factual allegations. Because Abulkhair includes
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The government also moves to dismiss Abulkhair’s negligent inffiction of
emotional distress claim on the grounds that this Court does not have
jurisdiction over the claim under the Federal Tort Claims Act. (Defs. Mot. 8,
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only conclusory allegations in his complaint, he fails to state any
plausible claim for relief.
Abulkhair states that, for over a decade, the Postal Service, the
United States, and unknown agents and employees have been tampering
with his incoming and outgoing mail because he is a Muslim and from
the Middle East. (Compl. ¶f 18—20). His only individual reference is to a
local Clifton, New Jersey Postmaster—whom he simply alleges to be a co
conspirator. (Id. ¶9). The remaining paragraphs in his complaint contain
an explanation of his complaints to his local post office staff (Id. ¶J2 1—22)
and general accusations such as “Defendants, and each of them,
unlawfully and intentionally and/or negligently violated Plaintiff’s privacy
and confidential life by their immoral uncivilized conduct and indecency.”
(Id. ¶j19—2O).
As the government points out, Abulkhair does not allege who
tampered with his mail, how any alleged co-conspirator tampered with
the mail, or the dates of the alleged tampering—other than to generally
state that it has been occurring for over a decade. (Defs. Mot. 5—7, ECF
No. 12). He certainly does not allege any facts to support a plausible
inference that any individuals or agencies conspired to tamper with his
mail. Without any details of who, what, when, where, or why to support
his allegations, this Court cannot make any inferences that would
support a plausible claim for relief.
The additional allegations Abulkhair makes in his opposition to the
government’s motion to dismiss do not save his complaint. (P1. Opp. 1—2,
ECF No. 14). Abulkhair attempts to support the allegations in his
complaint by stating that it took eleven days for a letter sent by the U.S.
Attorney’s Office to reach his home and that a letter he sent took seven
ECF No. 12). Because Abulkhair’s entire complaint so clearly fails to state a
claim under Rule 12(b)(6), I do not address the jurisdictional issues with
Abulkhair’s individual tort claims.
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days to reach a post office in New York. (Id.). This, he argues, illustrates
the “outrageous, unexplained and unjustifiable immoral spying and
invasion of privacy” and “constitute[s] substantial proof and concrete
evidence to this Court of Defendants’ relentless violations.” (Id.). Of
course, this Court may only consider the allegations contained in
Abulkhair’s complaint on a Rule 12(b)(6) motion. However, even if these
additional assertions were included in Abulkhair’s complaint, this Court
still would not be able to infer a plausible claim from them.
Abulkhair also argues that although he does not currently know
the names of the individuals allegedly responsible for tampering with his
mail, that he will obtain this information through discovery. (Id. 6).
However, Abulkhair does not allege sufficient facts to make it to the
discovery phase. “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but it does not
unlock the doors of discovery for a plaintiff armed with nothing more
than conclusions.” Iqbal, 556 U.S. at 678—79.
As was the case in Abulkhair v. President of U.S., 494 F. App’x 226
(3d Cir. 2012) and Abulkhair v. Bush, 413 F. App’x 502 (3d Cir. 2011),
Abulkhair’s conclusory statements here fall far short of the Iqbal and
Twombly pleading standard. See Abulkhair v. President of U.S., 494 F.
Appx at 230 (“Abulkhair’s conclusory statements that only Muslims
experienced delays was not enough to state a claim under the Fifth
Amendment.”); Abulkhair v. Bush, 413 F. App’x at 507 (“As in Iqbal,
Abulkhair’s conclusory assertions against the federal officials have not
‘nudged [his] claims of invidious discrimination across the line from
conceivable to plausible,’ so as to be entitled to a presumption of truth,
as is required to survive a motion to dismiss.” (citing Iqbal, 129 S. Ct. at
1950—51)).
Indeed, the complaint only alleges the sort of “naked assertion[s]’
devoid of ‘further factual enhancement’” that Iqbal and Twombly deemed
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impermissible. Iqbal, 556 U.S. at 662 (citing Twombly, 550 U.S. at 555).
This is not a matter of the sufficiency of the factual allegations; this
complaint sets forth virtually no substantive factual allegations at all. It
does not state or even suggest a plausible claim.
III.
CONCLUSION
For the foregoing reasons, the motion to dismiss the complaint is
GRANTED, and the complaint is DISMISSED WITHOUT PREJUDICE.
Dated: February
27
,
2015
KEVIN MCNULTY
United States District Judge
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