IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

DEUNTAE THOMAS, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-2144-L-BN 

§ 

UNITED STATES POSTAL SERVICE, § 

ET AL., § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Plaintiff Deuntae Thomas filed a pro se Complaint for Violation of Civil Rights 

against the United States Postal Service (the USPS); its general counsel and “all 

known and unknown named agents of the USPS,” in their individual and official 

capacities; and the USPS Consumer and Industry Contact Office, in Coppell, Texas 

[Dkt. No. 3]. 

Thomas cites, without much elaboration, multiple federal statutes (including 

criminal ones) and alleges, among other things, that, beginning in 2019, the 

defendants conspired to violate his “constitutional rights and [ ] other unalienable 

equal civil rights to deliver mail for free or at a reduced rate pursuant to 

congressionally established mandates”; “made numerous felony statements and 

felony misrepresentations to cause [him] to not engage in [his] rights to deliver [his] 

mail matters for free or at reduced rate as congressionally established”; intentionally 

“obstructed, destroyed, defaced, and delayed [his] mail matters, mail matters 

belonging to the United States pursuant to 18 USC 1692 in conspiracy to defeat [his] 

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enjoying [his] rights to deliver mail matters at a free or reduced rate (where examples 

include tearing mail, writing/striking over mail, writing false statements on mail 

face, not delivering mail in a timely manner, placing labels and other stickers on mail 

or over addressee/addressor labeling) where no provision of law exists to engage as 

such”; and violated their oaths of office and to defend the Constitution of the United 

States of America. Id. at 3-8. 

He seeks millions of dollars in monetary damages, to press criminal charges, 

and an apology. See id. at 10. 

Because Thomas moved for leave to proceed in forma pauperis (IFP), United 

States District Judge Sam A. Lindsay referred this lawsuit to the undersigned United 

States magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a 

standing order of reference. 

The Court will grant Thomas leave to proceed IFP under separate order. And 

the undersigned enters these findings of fact, conclusions of law, and recommendation 

that the civil claims against the United States, its agencies, and its employees in their 

official capacities should be dismissed for lack of jurisdiction and that the civil claims 

for monetary damages against the individual defendants in their individual 

capacities should be dismissed with prejudice. 

Legal Standards and Analysis 

First, insofar as the complaint cites federal criminal statutes, “decisions 

whether to prosecute or file criminal charges are generally within the prosecutor’s 

discretion, and, as a private citizen, [Thomas] has no standing to institute a federal 

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criminal prosecution and no power to enforce a criminal statute.” Gill v. State of Tex., 

153 F. App’x 261, 262-63 (5th Cir. 2005) (per curaim) (citing Linda R.S. v. Richard 

D., 410 U.S. 614, 619 (1973); United States v. Batchelder, 442 U.S. 114, 124 (1979)); 

see also Lefebure v. D’Aquilla, 15 F.4th 650, 654 (5th Cir. 2021) (In Linda R.S., “the 

Court repeatedly emphasized ‘the special status of criminal prosecutions in our 

system.’ It is a bedrock principle of our system of government that the decision to 

prosecute is made, not by judges or crime victims, but by officials in the executive 

branch. And so it is not the province of the judiciary to dictate to executive branch 

officials who shall be subject to investigation or prosecution.... As a result, courts 

across the country have dutifully enforced this rule in case after case – refusing to 

hear claims challenging the decision not to investigate or prosecute another person.” 

(collecting cases; citations omitted)). 

Relatedly, insofar as Thomas intends to bring civil claims under these criminal 

statutes, he fails to include allegations showing that he has a private right of action 

under any such statute. See Ennis Transp. Co. Inc. v. Richter, No. 3:08-cv-2206-B, 

2009 WL 464979, at *1 (N.D. Tex. Feb. 24, 2009) (“It is well established that generally 

there is no private cause of action for the violation of a federal criminal statute, and 

thus no jurisdiction for federal courts to preside over a suit between private parties 

when the only federal law allegedly violated is criminal. In rare circumstances, 

however, where a criminal statute has ‘a statutory basis for inferring’ the existence 

of a civil action, violation of a criminal statute may give rise to a private cause of 

action.” (citations omitted)); see, e.g., Tucker v. U.S. Court of Appeals for Tenth 

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Circuit, 815 F. App’x 292, 294 (10th Cir. 2020) (“Sections 241 and 242 are criminal 

statutes that do not provide for private civil causes of action.” (citations omitted)). 

Turning to the civil claims, “[t]he United States enjoys sovereign immunity 

from suit, meaning it cannot be sued without consent.” Gonzalez v. United States, 851 

F.3d 538, 543 (5th Cir. 2017) (citations omitted). So, “[t]o maintain a suit in district 

court against the United States, a plaintiff must bring claims under a statute in 

which Congress expressly waives the United States’ sovereign immunity.” Ortega 

Garcia v. United States, 986 F.3d 513, 522 (5th Cir. 2021) (citation omitted); see also 

Carver v. Atwood, 18 F.4th 494, 497 (5th Cir. 2021) (“Sovereign immunity is indeed a 

jurisdictional bar.” (citation omitted)). 

The same is true as to claims against its agencies, such as the USPS – “an 

independent establishment of the executive branch of the United States,” Brooks v. 

Wehner Multifamily, LLC, No. 7:18-cv-102-O-BP, 2018 WL 6613360, at *1 (N.D. Tex. 

Nov. 29, 2018) (citing 39 U.S.C. §§ 101, 201; Dolan v. U.S. Postal Serv., 546 U.S. 481, 

484-85 (2006)), rec. accepted, 2018 WL 6603827 (N.D. Tex. Dec. 17, 2018) – and 

against employees of an agency of the United States sued in their official capacities, 

see Gibson v. Fed. Bureau of Prisons, 121 F. App’x 549, 551 (5th Cir. 2004) (per 

curiam) (A plaintiff “may not bring an action against the United States, [an agency 

of the United States], or [that agency’s employees] in their official capacities as such 

claims are barred by the doctrine of sovereign immunity.” (citing Corr. Servs. Corp. 

v. Malesko, 534 U.S. 61, 71-72 (2001); Hafer v. Melo, 502 U.S. 21, 25 (1991))). 

Thomas identifies no applicable statute, under which sovereign immunity has 

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been waived. 

And neither potentially applicable statute – the Postal Reorganization Act of 

1970 (the PRA) or the Federal Tort Claims Act (the FTCA) – allows a plaintiff to bring 

constitutional claims against the USPS. See Johnson v. Runyon, 91 F.3d 131 (table), 

1996 WL 405218, at *1 (4th Cir. July 19, 1996) (per curiam) (“Although [the PRA], 

specifically 39 U.S.C. § 401(1) (1988), authorizes the USPS ‘to sue and be sued in its 

official name,’ this Act does not completely eviscerate sovereign immunity. Rather, 

39 U.S.C. § 409(c) (1988) restricts this waiver to tort claims cognizable under the 

[FTCA].” (citing Ins. Co. of N. Am. v. U.S. Postal Serv., 675 F.2d 756, 758 (5th Cir. 

1982))); Jenoriki v. U.S. Postal Inspection Serv., 24 F.3d 240, 1994 WL 243467, at *1 

(5th Cir. May 23, 1994) (observing that “[t]he sovereign immunity of the USPS has 

been waived only to the extent of the FTCA” (citing Ins. Co. of N. Am., 675 F.2d at 

758) but that “[a] constitutional claim does not arise under the FTCA and is barred 

by sovereign immunity” (cleaned up; citing McAfee v. 5th Circuit Judges, 884 F.2d 

221, 223 (5th Cir. 1989))); A African-American U.S. Citizen v. Tennessee, No. 3:08-cv196, 2009 WL 676619, at *1 (E.D. Tenn. Mar. 11, 2009) (“To the extent plaintiff seeks 

to bring suit against the United States or the U.S. Postal Service under the U.S. 

Constitution, neither the United States nor the U.S. Postal Service has waived 

sovereign immunity for constitutional torts.” (citing FDIC v. Meyer, 510 U.S. 471, 

477-78 (1994); Eure v. U.S. Postal Serv., 711 F. Supp. 1365, 1369-70 (S.D. Miss. 1989) 

(citing, in turn, Ins. Co. of N. Am., 675 F.2d at 758))). Cf. Rittgers v. United States, 

131 F. Supp. 3d 644, 653 (S.D. Tex. 2015) (“It is well-established that the FTCA is a 

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limited waiver of sovereign immunity.” (citing United States v. Orleans, 425 U.S. 807, 

813 (1976))). 

Next, insofar as Thomas does bring claims against federal officers or employees 

in their individual capacities seeking money damages for violations of his 

constitutional rights, Bivens v. Six Unknown Named Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971), first allowed “an implied damages remedy under the 

Constitution itself,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). 

But Bivens, unlike 42 U.S.C. § 1983, is not a Congressional statute that 

“entitles an injured person to money damages if a state official violates his or her 

constitutional rights.” Id. at 1854 (“Congress did not create an analogous statute for 

federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not 

provide a specific damages remedy for plaintiffs whose constitutional rights were 

violated by agents of the Federal Government.”). 

The United States Supreme Court “has approved of an implied damages 

remedy under the Constitution itself” only three times – in Bivens, to enforce “a 

damages remedy to compensate persons injured by federal officers who violated the 

prohibition against unreasonable search and seizures” in violation of the Fourth 

Amendment; in Davis v. Passman, 442 U.S. 228 (1979), holding “that the Fifth 

Amendment Due Process Clause gave [a Congressman’s administrative assistant] a 

damages remedy for gender discrimination”; and in Carlson v. Green, 446 U.S. 14 

(1980), holding “that the Eighth Amendment Cruel and Unusual Punishments 

Clause gave [a prisoner] a damages remedy for failure to provide adequate medical 

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treatment.” Abbasi, 137 S. Ct. at 1854-55; see also Egbert v. Boule, 142 S. Ct. 1793, 

1799-1800 (2022) (observing that from Bivens to then, the Supreme Court has 

“declined 11 times to imply a similar cause of action for other alleged constitutional 

violations” – Egbert made 12 (collecting cases)). 

In Abbasi, the Supreme Court further “stressed that any extension of Bivens

to new factual scenarios is now a ‘“disfavored” judicial activity.’” Maria S. ex rel. EHF 

v. Garza, 912 F.3d 778, 783 (5th Cir. 2019) (quoting Abbasi, 137 S. Ct. at 1857 

(quoting, in turn, Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009))); accord Egbert, 142 S. 

Ct. at 1800 (“[O]ur cases have made clear that, in all but the most unusual 

circumstances, prescribing a cause of action is a job for Congress, not the courts.”);

Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (“Bivens was the product of an 

‘ancien regime’ that freely implied rights of action. That regime ended long ago. 

Today, Bivens claims generally are limited to the circumstances of the Supreme 

Court’s trilogy of cases in this area....” (citations omitted)), cert. denied, 141 S. Ct. 

2669 (2021); Byrd v. Lamb, 990 F.3d 879, 881 (5th Cir. 2021) (per curiam) (“The 

Supreme Court has cautioned against extending Bivens to new contexts.” (citing 

Hernandez v. Mesa, 140 S. Ct. 735, 744 (2020) (Hernandez II); Abbasi, 137 S. Ct. at 

1861)); Butler v. S. Porter, 999 F.3d 287, 293 (5th Cir. 2021) (“Indeed, in recent 

decades, the Supreme Court has ‘consistently refused to extend Bivens to any new 

context.’” (quoting Malesko, 534 U.S. at 68; citation omitted)).

So, as to whether Thomas may assert claims for money damages against any 

individual defendant for alleged constitutional violations, the Court should consider 

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the “two part inquiry for determining whether to allow a Bivens cause of action: (1) 

whether the instant case involves a ‘new context’ that is distinct from prior Bivens

cases and (2) whether any ‘special factors’ preclude extending Bivens to this ‘new 

context.’” Maria S., 912 F.3d at 784 (citation omitted); accord Oliva, 973 F.3d at 441-

42 (“Courts confronting Bivens claims generally ‘must ask two questions. First, do 

[the plaintiff’s] claims fall into one of the three existing Bivens actions? Second, if not, 

should we recognize a new Bivens action here?’” (quoting Cantú v. Moody, 933 F.3d 

414, 422 (5th Cir. 2019))); Byrd, 990 F.3d at 881 (“Only where a claim arises in a new 

context should courts then proceed to the second step of the inquiry, and contemplate 

whether there are ‘any special factors that counsel hesitation about granting the 

extension.’” (quoting Hernandez II, 140 S. Ct. at 743)). 

“The proper test for determining whether a case presents a new 

Bivens context is” whether it is “different in a meaningful way from 

previous Bivens cases decided by” the Supreme Court. Abbasi, 137 S. Ct. 

at 1859. A meaningful difference may include the Constitutional right 

at issue, the statutory or other legal mandate under which the officer 

was operating, or the presence of potential special factors that previous 

Bivens cases did not consider. Id. at 1860. “[E]ven a modest extension is 

still an extension.” Id. at 1864. 

Canada v. United States, 950 F.3d 299, 307 (5th Cir. 2020) (citation modified). 

In short, “the proper test is whether the case differs in a meaningful way from 

Bivens, Davis, or Carlson.” Id. (citing Abbasi, 137 S. Ct. at 1859; Loumiet v. United 

States, 948 F.3d 376, 381-82 (D.C. Cir. 2020)). In practice, “[v]irtually everything else” 

– any case falling outside the specifics of these three cases – “is a ‘new context.’” Oliva, 

973 F.3d at 442 (citing Abbasi, 137 S. Ct. at 1865); see also Byrd, 990 F.3d at 883 

(Willett, J., specially concurring) (“The Bivens doctrine, if not overruled, has certainly 

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been overtaken.” And, at least in this circuit, after Oliva, “‘[v]irtually everything’ 

beyond the specific facts of the Bivens trilogy ‘is a “new context”’ .... And new context 

= no Bivens claim.” (footnote omitted)). 

Thomas’s allegations, some of which are set out above, reflect that this case 

presents a “next context,” distinct from prior Bivens cases. 

The Court must therefore “contemplate whether there are ‘any special factors 

that counsel hesitation about granting the extension.’” Byrd, 990 F.3d at 881 

(emphasis added; quoting Hernandez II, 140 S. Ct. at 743); see Butler, 999 F.3d at 294 

(“Importantly, ‘[e]ven before Abbasi clarified the special factors inquiry, we agreed 

with our sister circuits that the only relevant threshold – that a factor counsels 

hesitation – is remarkably low.” (emphasis added; citation omitted)). 

Indeed, as the Supreme Court recently framed the inquiry, “under the proper 

approach, a court must ask ‘[m]ore broadly’ if there is any reason to think that 

‘judicial intrusion’ into a given field might be ‘harmful’ or ‘inappropriate.’” Egbert, 142 

S. Ct. at 1805 (quoting United States v. Stanley, 483 U.S. 669, 681 (1987)). “If so, or 

even if there is the ‘potential’ for such consequences, a court cannot afford a plaintiff 

a Bivens remedy.” Id. at 1805-06 (emphasis provided by Egbert; quoting Abbasi, 137 

S. Ct., at 1859-60, 1864-65). 

At least one special factor makes judicial intrusion inappropriate here. And 

only one is required. 

In Maynard v. United States, No. 3:CV-06-2331, 2008 WL 4453199 (M.D. Pa. 

Sept. 30, 2008), for example, in which the plaintiffs, a husband and wife, asserted a 

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claim under the Equal Protection Clause against USPS employees and agents based 

on the wife’s being denied access to a post office while accompanied by her service 

dog, the court held that, “[b]ecause Congress has provided explicit statutory remedies 

for complaints against the USPS pursuant to 39 C.F.R. § 255.6., a Bivens claim cannot 

be maintained against the USPS employees and agents,” id. at *6 (citations omitted). 

This statutory remedy explicitly applies to discrimination based on a disability. 

It’s a special factor, nevertheless. Cf. Oliva, 973 F.3d at 444 (The “‘silence of Congress 

is relevant’ to the special-factors inquiry.” (quoting Abbasi, 137 S. Ct. at 1862)). 

As to applicable alternative relief more broadly, the PRA allows for claims 

consistent with the FTCA. And that the FTCA may not allow for Thomas’s 

constitutional claims does not negate its presence as a special factor. See Dolan, 546 

U.S. at 484-85. That is because “the separation of powers is itself a special factor.” 

Oliva, 973 F.3d at 444 (citing Abbasi, 137 S. Ct. at 1862). So courts “must consider 

what Congress has done and what Congress has left undone.” Id. Cf. Watkins v. 

Carter, No. 20-40234, 2021 WL 4533206, at *2 (5th Cir. Oct. 4, 2021) (per curiam) 

(“[T]here are special factors that counsel hesitation. The existence of the Federal Tort 

Claims Act weighs against inferring a new cause of action. See Cantú, 933 F.3d at 

423 (citing 28 U.S.C. § 2680(h)). Additionally, the existence of the BOP’s 

Administrative Remedy Program provides an alternative method of relief to Bivens

actions. Malesko, 534 U.S. at 74; 28 C.F.R. § 542.10 (2001).” (citations modified)). 

In sum, because this “case is a new context and there [is at least one] special 

factor[] that counsel[s] hesitation, [Thomas] does not have a viable Bivens claim 

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against the [individual defendants].” Watkins, 2021 WL 4533206, at *3. 

Recommendation

The Court should dismiss the claims against the United States, its agencies, 

and its employees in their official capacities for lack of jurisdiction; and dismiss the 

claims for monetary damages against the individual defendants in their individual 

capacities with prejudice. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: October 5, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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