Chapman v. Greenville SC United States Postal Service et al

Filing 23

ORDER adopting 15 Report and Recommendation. Plaintiff's action is DISMISSED without prejudice and without issuance and service of process. Further, Plaintiff's 14 Motion for Default Judgment and 21 Motion for Sanctions, Motion for Default Judgment are DENIED as moot. Signed by Honorable Timothy M Cain on 5/30/17. (kmca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Tonya R. Chapman,

)
)
Plaintiff,
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vs.
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Greenville SC United States Postal Service, )
Jennifer J. Aldrich, Ann E. Mandernach,
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Defendants.
)
)

Civil Action No. 6:17-556-TMC

ORDER

Plaintiff, proceeding pro se, filed this action against in forma pauperis under 28 U.S.C. §
1915. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter
was referred to a magistrate judge for pretrial handling. Before the court is the magistrate
judge’s Report and Recommendation (“Report”), recommending that the court dismiss Plaintiff’s
action without prejudice and without issuance and service of process. (ECF No. 15). Plaintiff
was advised of her right to file objections to the Report, (ECF No. 15 at 6), and has filed timely
objections (ECF No. 18). On March 21, 2017, Plaintiff filed a motion for default judgment.
(ECF No. 14). On April 27, 2017, Plaintiff filed a motion for discovery sanctions and motion for
default judgment. (ECF No. 21).
The magistrate judge makes only a recommendation to the court. The Report has no
presumptive weight and the responsibility to make a final determination in this matter remains
with this court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The court is charged with
making a de novo determination of those portions of the Report to which specific objection is
made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the
magistrate judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). However, the

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court need not conduct a de novo review when a party makes only “general and conclusory
objections that do not direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a
timely filed, specific objection, the magistrate judge’s conclusions are reviewed only for clear
error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
In his Report, the magistrate judge recommends summary dismissal of Plaintiff’s claim
against the United States Postal Service (“USPS”). (ECF No. 15 at 2–3). Under the principle of
sovereign immunity, individuals may not sue the United States or its agencies, including the
USPS, without their consent. Global Mail Ltd. V. U.S. Postal Serv., 142 F.3d 208, 210 (4th Cir.
1998). While the Federal Tort Claims Act (“FTCA”) waives sovereign immunity for certain tort
claims arising out of the activities of the USPS, sovereign immunity is not waived for claims
based on the “failings in the postal obligation to deliver mail in a timely manner to the right
address . . . .” Dolan v. Postal Serv., 546 U.S. 481, 487 (2006); see 28 U.S.C. § 2680(b)
(explicitly excluding from the FCTA’s waiver of immunity claims “arising out of the loss,
miscarriage, or negligent transmission of letter or postal matter.”). Because the present action
clearly concerns the USPS’s failure to properly deliver Plaintiff’s mail, Plaintiff’s claims against
the USPS are barred by 28 U.S.C. 2680(b) and the magistrate judge recommends summary
dismissal. In addition, as the Magistrate Judge also notes, because the United States is the only
proper defendant in a suit brought under the FTCA, Miller v. United States, 710 F.2d 656, 657,
n.1 (10th Cir. 1983), the United States Postal Service is not a proper party to this action.
The magistrate judge also recommends summary dismissal of the action against
defendants Jennifer Aldrich (“Aldrich”) and Ann Mandernach (“Mandernach”) because Plaintiff
has failed to allege a violation of federal law or a viable state law claim with respect to these

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defendants, thus failing to state a claim on which relief may be granted.

28 U.S.C. §

1915(e)(2)(B). Further, in response to Plaintiff’s claims that Aldrich and Mandernach have
violated discovery rules, the magistrate judge noted that at the time that this action was filed,
Plaintiff had no other pending cases in this court and made no allegations that this is the proper
court in which to move for sanctions in actions pending in other courts.
In her objections, Plaintiff requests that Defendants be served by U.S. Marshals and that
her action be allowed to continue “[f]or the following claims of negligence, breach of contract
and fraud.” (ECF No. 18 at 1). Plaintiff then reiterates her claim and quotes cases defining
“contract.” However, Plaintiff fails to specifically object to any dispositive portion of the
magistrate judge’s Report. Plaintiff does not address the exclusions from the FTCA’s waiver of
immunity with respect to defendant USPS. Nor does Plaintiff object to the magistrate judge’s
finding that, even construing Plaintiff’s complaint liberally, Plaintiff fails to present any claim or
violation directly attributable to Aldrich or Mandernach. Therefore, Plaintiff’s objections are
overruled and the court adopts the Report. The summary dismissal of Plaintiff’s claim moots
Plaintiff’s pending motions for sanctions and default judgment (ECF Nos. 14 and 21).1
After a thorough review of the Report and the record in this case, the court adopts the
magistrate judge's Report (ECF No. 15) and incorporates it herein. Accordingly, Plaintiff’s
action is DISMISSED without prejudice and without issuance and service of process. Further,

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In any event, in her first motion for default judgment, Plaintiff claims that Defendants continue to ignore her
previously filed claim against the USPS. (ECF No. 14 at 1). However, the court summarily dismissed Plaintiff’s
previous claim against the USPS on February 2, 2017. Chapman v. Greenville SC U.S. Postal Service, C.A. 6:163712-TMC (D.S.C. Feb. 2, 2017). “When a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or
otherwise, the clerk shall enter the party's default.” Fed. R. Civ. P. 55(a). However, as service was never authorized
in the present or previous case (C.A. No. 17-556, ECF No. 15; C.A. No. 16-3712, ECF No. 9) none of the
defendants failed to plead pursuant to the aforementioned rule. See Fed. R. Civ. P. 12; Fed. R. Civ. P. 55.
Furthermore, in Plaintiff’s motion for sanctions and default judgment (ECF No. 21), she asserts that Defendants
violated a discovery order however identifies no such order from the court which Defendants failed to obey.
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Plaintiff’s motion for default judgment (ECF No. 14) and motion for sanctions and default
judgment (ECF No. 21) are DENIED as moot.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
May 30, 2017
Anderson, South Carolina

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.

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