Dortch v. United States Postal Service

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ISAAC DORTCH,
Plaintiff, 	Hon. Paul L. Maloney
v. 	Case No. 1:25-cv-1071
UNITED STATES POSTAL SERVICE,
Defendant.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiff commenced this action against the United States Postal Service (USPS) in the
Kent County Circuit Court on or about July 3, 2025. (ECF No. 1-1 at PageID.4–6.) USPS removed
the action to this Court on September 10, 2025, pursuant to 28 U.S.C. §§ 1441(a) and 1442(a)(1).
Presently before me is USPS’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and (b)(6). (ECF No. 12). Plaintiff did not file a response within the time permitted by
Local Civil Rule 7.2(c). Instead, he filed applications for entry of default and default judgment
against USPS, which have not been entered. (ECF Nos. 16 and 17.)
For the following reasons, and pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the
Court grant USPS’s motion and dismiss the complaint.
I. 	Background
Plaintiff’s complaint consists of the following paragraph:
A [USPS] employee intentionally creased open and examined a restricted certified
court document to let the people on social media that matter know what the
document entailed and that it wasnt (sic) a case in order to prevent or hinder me
fighting my case by having them stay one step ahead ultimately making me take a
different and more expensive means for proof of service because of trust issues with
their professionalism which is obstruction of correspondence[.]
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(ECF No. 1-1 at PageID.6.) Plaintiff alleges that these acts constituted “prejudice” and
“discrimination” resulting in financial and emotional distress. (Id.)
II. 	Motion Standard
In its motion, USPS asserts that Plaintiff alleges a tort claim based on a USPS employee’s
handling or transmission of his mail that is subject to the Federal Tort Claims Act’s (FTCA)
exhaustion and sovereign immunity waiver provisions. USPS brings its motion pursuant to both
Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to
state a claim. For the reasons I set forth previously in Carver v. United States, No. 1:21-cv-869,
2022 WL 706995, at *2–3 (W.D. Mich. Feb. 11, 2022), report and recommendation adopted, 2022
WL 704226 (W.D. Mich. Mar. 9, 2022), I conclude that because the FTCA’s exhaustion
requirement is not jurisdictional, a motion to dismiss based on a plaintiff’s failure to exhaust an
FTCA claim is subject to the Rule 12(b)(6) standard for failure to state a claim. As for USPS’s
sovereign immunity argument, it is properly considered under Rule 12(b)(1) as it pertains to the
Court’s subject matter jurisdiction.
A motion to dismiss under Rule 12(b)(1) for lack of jurisdiction may come in the form of
either a “facial attack” or a “factual attack.” O'Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir.
2009). A facial attack “questions merely the sufficiency of the pleading.” Id. at 376.
“[W]hen reviewing a facial attack, a district court takes the allegations in the
complaint as true. . . . If those allegations establish federal claims, jurisdiction
exists.” However, “conclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to dismiss.”
Id. (internal citations omitted). “A factual attack, on the other hand, is not a challenge to the
sufficiency of the pleading’s allegations, but a challenge to the factual existence of subject matter
jurisdiction.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Here, USPS’s motion
raising sovereign immunity presents a facial attack on jurisdiction.
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Pursuant to Federal Rule of Civil Procedure 12(b)(6), a claim must be dismissed for failure
to state a claim on which relief may be granted unless the “[f]actual allegations [are] enough to
raise a right to relief above the speculative level on the assumption that all of the complaint’s
allegations are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal citations
and footnote omitted). As the Supreme Court has held, to satisfy this rule, 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, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). This plausibility
standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. If the complaint simply “pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility and plausibility
of entitlement to relief.” Id. (internal quotation marks omitted). As the Court further observed:
Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Rule 8 marks a
notable and generous departure from the hypertechnical, 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. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where 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. at 678–79 (internal citations omitted).
Because Plaintiff is proceeding pro se, the Court must construe his pleading more liberally
than it does for pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). But this
liberal pleading standard “is not without its limits, and does not ‘abrogate basic pleading essentials
in pro se suits.’” Clark v. Johnston, 413 F. App’x 804, 817 (6th Cir. 2011) (quoting Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989)). Stated differently, “[l]iberal construction does not require a
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court to conjure allegations on a litigant’s behalf.” Erwin v. Edwards, 22 F. App’x 579, 580 (6th
Cir. 2001).
III. 	Discussion
A. 	FTCA
The doctrine of sovereign immunity precludes suit against the United States without its
consent. Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991). A court therefore lacks subject
matter jurisdiction over a suit against the United States unless it expressly consents to suit. United
States v. Testan, 424 U.S. 392, 399 (1976). The FTCA provides a limited waiver of the United
States’ sovereign immunity and vests district courts with subject matter jurisdiction over certain
tort claims against the United States. Levin v. United States, 568 U.S. 503, 506 (2013). The Act
gives federal courts “exclusive jurisdiction over claims against the United States for ‘injury or loss
of property . . . caused by the negligent or wrongful act or omission’ of federal employees acting
within the scope of their employment.” Id. (citing 28 U.S.C. § 1346(b)(1)). Because “the United
States is the only proper defendant in a suit alleging negligence by a federal employee,” the United
States, instead of the USPS, is the proper defendant in this action. Allgeier v. United States, 909
F.2d 869, 871 (6th Cir. 1990) (citing 28 U.S.C. § 2679(a)). Plaintiff’s claim is in the nature of a
tort; thus, his complaint against USPS is subject to dismissal for this reason alone.
The FTCA also requires a claimant to exhaust his claim with the appropriate federal agency
before filing suit in federal court:
An action shall not be instituted upon a claim against the United States for money
damages 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, unless the claimant shall have
first presented the claim to the appropriate Federal agency and his claim shall have
been finally denied by the agency in writing and sent by certified or registered mail.
. . .
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28 U.S.C. § 2675(a). See Kellom v. Quinn, 86 F.4th 288, 293 (6th Cir. 2023) (noting that although
the FTCA’s exhaustion requirement is a claims processing rule rather than a jurisdictional
requirement, it “is still mandatory”). Here, Plaintiff fails to allege that he exhausted his claim with
the USPS prior to filing this action. Accordingly, his tort claim is subject to dismissal for lack of
exhaustion.
USPS also contends that the claim is subject to dismissal because the United States has not
waived its sovereign immunity for the sort of claim Plaintiff alleges. Although the FTCA waives
the United States’ sovereign immunity in limited circumstances for tort claims against the federal
government, Section 2680(b) limits the scope of the waiver. That provision states that “[t]he
provisions of this chapter and section 1346(b) of this title shall not apply to . . . [a]ny claim arising
out of the loss, miscarriage, or negligent transmission of letters or postal matter.” The Supreme
Court has noted that by this provision, “Congress intended to retain immunity, as a general rule,
only for injuries arising, directly or consequentially, because mail either fails to arrive at all or
arrives late, in damaged condition, or at the wrong address.” Dolan v. United States Postal Serv.,
546 U.S. 481, 489 (2006). “This exception to the FTCA’s waiver of immunity also applies to
claims of intentional loss, delay, or theft of mail.” Fox v. U.S. Postal Serv., No. 18-10901, 2018
WL 6843372, at *6 (E.D. Mich. Oct. 31, 2018) (citing Levasseur v. U.S. Postal Serv., 543 F.3d 23
(1st Cir. 2008)) (holding that the theft or concealment of mail falls within the exception of section
2680(b)); see also Turay v. United States Postal Serv., No. 3:20-cv-1084, 2020 WL 6731722, at
*2 (D. Ore. Sept. 4, 2020); Moreland v. U.S. Post Off. Gen., No. 14-13147, 2015 WL 2372322, at
*3 (E.D. Mich. May 18, 2015).
Plaintiff’s allegations fall within the exception to waiver set forth in Section 2680(b) as
they indicate that he is complaining of intentional loss, theft, or miscarriage of his mail,
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necessitating a different and more expensive form of service for his court document. Therefore,
the claim is subject to dismissal because the Court lacks jurisdiction to entertain it.
B. 	Discrimination
As noted above, Plaintiff also alleges discrimination of some sort against USPS. This
allegation is nothing more than a legal conclusion without any supporting facts that falls short of
Rule 8(a)(2)’s basic pleading requirements. Plaintiff’s complaint fails to provide USPS “fair notice
of the basis for . . . [P]laintff’s claim[].” Pringle v. American Red Cross, 79 F. App’x 184, 185 (6th
Cir. 2003) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). While “the pleading
standard Rule 8 announces does not require ‘detailed factual allegations,’ . . . it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555). This is all the complaint provides. Thus, Plaintiff fails to assert
a plausible discrimination claim.
III. 	Conclusion
For the foregoing reasons, I recommend that the Court grant USPS’s motion to dismiss
(ECF No. 12) and dismiss Plaintiff’s complaint.
Dated: November 3, 2025 	/s/ Sally J. Berens
SALLY J. BERENS
U.S. Magistrate Judge
NOTICE
OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within 14 days of the date of service of this notice. 28 U.S.C. § 636(b)(1)(C). Failure to
file objections within the specified time waives the right to appeal the District Court’s order.
See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).
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