Phillips et al v. United States Postal Service

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------x
DOMINIQUE PHILLIPS and THE
WENDLER FAMILY,1
Plaintiffs,
MEMORANDUM & ORDER
-against-
24-cv-7039 (NRM) (SDE)
UNITED STATES POSTAL SERVICE,
A/K/A or D/B/A: “United States,”
Defendant.
-----------------------------------------------------------x
NINA R. MORRISON, United States District Judge:
This case is brought pursuant to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b), 2671 et seq., and involves a claim for wrongful death arising from
the passing of Plaintiff’s spouse in 2019. 	Plaintiff Dominique Phillips attributes his
wife’s death to alleged “daily abuse and [] harassment” she experienced at the hands
of “supervisors and postmasters” with whom she worked at the United States Postal
Service (“USPS”). 	Compl. at 2, ¶ 2, ECF No. 1.2 	Phillips claims that his wife was
1 Plaintiff Phillips is proceeding pro se. 	Pro se parties may not represent
other individuals or entities. 	Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998);
Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997). 	By Order dated October 25,
2024, the Hon. Lois Bloom advised Plaintiff Phillips that, if counsel did not appear
on behalf of the Wendler family by November 25, 2024, or if a member of the Wendler
family did not sign an amended complaint, she would recommend dismissing the
claims asserted on behalf of the Wendler family. 	ECF No. 8 at 1. 	Counsel has not
appeared, nor has an amended complaint been filed. 	However, because the Court
lacks subject matter jurisdiction over the claims asserted in this action, the Court
declines to dismiss the claims asserted on behalf of the Wendler family by Phillips,
though this is a sufficient alternative ground for such dismissal of those claims.
2 Page references are to ECF pagination unless otherwise noted.
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 1 of 6 PageID #:
<pageID>

2
targeted for harassment because she attended settlement conferences before various
federal judges in 2017 “to show spousal support” in relation to Phillips’s claims that
he was wrongfully terminated by his former employer, the Long Island Railroad, and
his former union, the United Transportation Union – Local 722. 	Id. ¶¶ 3–5.
The 	undersigned 	previously 	dismissed 	another 	suit, 	alleging 	identical
underlying facts, brought by Phillips against the USPS for lack of subject matter
jurisdiction but gave Phillips leave to amend his complaint to “describ[e] the efforts
he made to exhaust his administrative remedies [under the FTCA].” 	Phillips v.
United States Postal Serv., No. 21-CV-5681 (NRM) (ARL), 2022 WL 17477658, at *4
(E.D.N.Y. 	Dec. 	6, 	2022). 	The 	undersigned 	subsequently 	dismissed 	Phillips’s
amended complaint because it neither “name[d] the United States as a defendant,
nor [did] it assert that [Phillips] previously filed a tort claim with the USPS [as
required by the FTCA].” 	Phillips v. United States Postal Serv., No. 21-CV-5681
(NRM) (ARL), 2023 WL 3007172, at *1 (E.D.N.Y. Apr. 19, 2023), aff’d, No. 23-819,
2024 WL 1613897 (2d Cir. Apr. 15, 2024).
Phillips filed the instant suit on October 4, 2024. 	See generally Compl.
Phillips states that his wife “passed away on October 4, 2019.” 	Id. ¶ 7. 	Phillips also
concedes that he “filed his FTCA claim on April 22, 2023.” 	Id. ¶ 12. 	Defendant
moves to dismiss the Complaint, Mot. to Dismiss, ECF No. 27, and asserts, inter alia,
that Phillips failed to timely file an administrative claim with the USPS and,
therefore, this Court lacks jurisdiction over Phillip’s claim. 	Def. Mem. in Supp. of
Mot. to Dismiss (“Def. Mem.”) 15–20, ECF No. 28.
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 2 of 6 PageID #:
<pageID>

3
“The FTCA operates as a limited waiver of sovereign immunity,” and one of
the FTCA’s limitations, among others, is the so-called “presentment” requirement.
Rainwater v. United States, No. 08-CV-5115 (PKC), 2010 WL 5248585, at *3 (S.D.N.Y.
Dec. 15, 2010); see also Perez-Lopez v. Bialor, No. 20-CV-02518 (HG) (RML), 2023 WL
2682922, at *5 (E.D.N.Y. Mar. 29, 2023) (discussing this requirement). 	Federal law
provides for a two-year statute of limitations from the time that a tort claim against
the federal government accrues for a prospective plaintiff to alert the government of
a claim. 	28 U.S.C. § 2401(b) (providing that “[a] tort claim against the United States
shall be forever barred unless it is presented in writing to the appropriate Federal
agency within two years after such claim accrues”). 	“Under the FTCA, . . . a
wrongful death action accrues upon the date of decedent’s death.” 	Sovulj v. United
States, No. 98-CV-5550 (FB), 2003 WL 21524835, at *2 (E.D.N.Y. July 2, 2003).3 	The
3 It is true that, “under federal law, the limitations period governing a
plaintiff’s FTCA claims will be equitably tolled so long as defendants’ concealment of
their wrongdoing prevented plaintiff from becoming aware of, or discovering through
the exercise of reasonable diligence, his cause of action.” 	Sovulj, 2003 WL 21524835,
at *2 (citation modified) (quoting Kronisch v. United States, 150 F.3d 112, 123 (2d Cir.
1998) and citing Drazan v. United States, 762 F.2d 56, 59 (7th Cir. 1985)); see also
Roque v. United States, 676 F. Supp. 2d 36, 42 (D. Conn. 2009) (holding that a cause
of action for wrongful death under the FTCA did not accrue until the plaintiff learned,
more than two years after decedent’s death, of acts and omissions by Bureau of
Prisons staff that plaintiff alleged amounted to negligence). 	Here, however, Phillips
does not allege any concealment by the USPS that prevented him from discovering
his cause of action. 	To the contrary, Phillips alleges that, “from 2017 to 2019, until
the day [his wife] passed away, . . . she confided in [Phillips] . . . [about] the ongoing
daily abuse and workplace harassment.” 	Compl. ¶ 2. 	Assuming Phillip’s allegation
that his wife’s death was “due to the harassment that she endured at USPS from
2017 to 2019,” id. ¶ 7, is true, as this Court must on a Rule 12(b)(6) motion to dismiss,
Phillips was fully aware of both the conduct of USPS employees and his wife’s death
on October 4, 2019, meaning any wrongful death claim accrued on that date.
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 3 of 6 PageID #:
<pageID>

4
presentment requirement is “strict,” Abdalla v. United States, No. 23-CV-03551
(NRM) (VMS), 2025 WL 327933, at *5 (E.D.N.Y. Jan. 29, 2025), and “[f]ailure to
comply with [presentment] results in dismissal of the suit,” Sea Gate Beach Club
Corp. v. United States, 190 F. Supp. 3d 310, 314 (E.D.N.Y. 2016) (second alteration
in original) (quoting Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717,
728 (E.D.N.Y. 2015)). 	“This procedural hurdle applies equally to litigants with
counsel and to those proceeding pro se.” 	Adeleke v. United States, 355 F.3d 144, 153
(2d Cir. 2004).
Phillips acknowledges that he filed his administrative claim past the deadline
but asserts he is entitled to equitable tolling. 	Compl. ¶ 12. 	Phillips asserts that the
COVID-19 pandemic “prevented him from filing his FTCA on time” because “he was
[] unable to obtain the FTCA from the Court’s website, or from the U.S. Courthouses
at the Clerk’s Office in Brooklyn, nor Central Islip.” 	Id. ¶ 11. 	Phillips also alludes
to “his lack of legal training” as a pro se litigant and the fact that he “was unaware
that he was required to first file and serve an FTCA tort claim on the USPS before
filing his complaint” as reasons for his untimely presentment. 	Pl. Corrected Reply
Br. (“Pl. Mem.”) 17, ECF No. 32.
Phillips is correct that “the FTCA’s time bars are nonjurisdictional and subject
to equitable tolling.” 	Perez-Lopez, 2023 WL 2682922, at *6 (quoting United States v.
Wong, 575 U.S. 402, 420 (2015)). 	“[A] litigant is entitled to equitable tolling . . . only
if the litigant establishes two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 4 of 6 PageID #:
<pageID>

5
prevented timely filing.” 	Hardie v. United States, 859 F. App’x 612, 614 (2d Cir.
2021) (summary order) (quoting Menominee Indian Tribe of Wis. v. United States, 577
U.S. 250, 255, (2016)). 	A plaintiff bears the burden of establishing both elements.
Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017). 	Here, Phillips has failed
to identify extraordinary circumstances that prevented his timely filing of his
administrative claim with the USPS.
Phillips identifies two reasons for his untimeliness. 	First, he cites the
COVID-19 pandemic. 	Id. ¶ 11. 	However, “[a] plaintiff must plead more than the
existence of the pandemic to show the extraordinary circumstances required for
equitable tolling.” 	Eisner v. United States, No. 21-CV-06834 (OEM) (ARL), 2025 WL
638547, at *7 (E.D.N.Y. Feb. 26, 2025) (quoting Rodriguez v. Hudson Valley Chrysler,
20-CV-9646 (NSR), 2021 WL 5910173, at *3 (S.D.N.Y. Dec. 14, 2021)). 	Phillips has
“never actually articulated how the pandemic personally affected [him],” Jamieson v.
United States Postal Serv., 20-CV-06184 (NGG) (RML), 2022 WL 43767, at *2
(E.D.N.Y. Jan. 5, 2022), and thus has not demonstrated any kind of causal connection
between 	the 	purported extraordinary 	circumstances 	and his 	failure 	to 	file an
administrative claim with the USPS, Gunn v. Aquafredda, 19-CV-10039 (CS), 2021
WL 3115488, at *5 (S.D.N.Y. July 21, 2021).
Second, 	Phillips 	asserts 	that, 	because 	he 	“is 	not 	an 	attorney 	and 	is
representing himself . . . , he should [be] given some leeway regarding the formalities
of filing a lawsuit against a federal agency.” 	Pl. Mem. at 17. 	Phillips also argues
that he “only learned about the FTCA after receiving [the undersigned’s] December
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 5 of 6 PageID #:
<pageID>

6
6, 2022, Memorandum and Order.” 	Id. 	However, equitable tolling cannot be
premised solely on “lack of education, pro se status, or ignorance of the right to bring
a claim.” 	Watson, 865 F.3d at 133. 	And Phillips has cited no other exceptional
circumstances that would clear the high bar needed for equitable tolling to apply.
In sum, Phillips is not entitled to equitable tolling to render timely his April
22, 2023 administrative claim. 	Because Phillips has failed to comply with the strict
presentment requirement of the FTCA, he has failed to state a claim upon which
relief can be granted, and Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is
granted. 	The Clerk of Court is respectfully directed to enter judgment, to mail a copy
of the judgment and this order to the pro se Plaintiff, and to close this case. 	The
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of an appeal. 	See Coppedge v. United States, 369 U.S. 438, 444–45
(1962).
SO ORDERED.
/s/ Nina R. Morrison
NINA R. MORRISON
United States District Judge
Dated: 	January 5, 2026
Brooklyn, New York
Case 2:24-cv-07039-NRM-SDE Document 45 Filed 01/05/26 Page 6 of 6 PageID #:
<pageID>