IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

HR MAILING SERVICES, ET AL. §

§

Plaintiffs, §

§

VS. § NO. 3-05-CV-2464-N

§

UNITED STATES POSTAL SERVICE §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge for initial screening

pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The

findings and recommendation of the magistrate judge are as follow:

I.

This is a pro se civil action brought by Henry Reed IV and Carla Reed, Individually and

d/b/a HR Mailing Services, against the United States Postal Service. On December 16, 2005,

plaintiffs tendered a three-page complaint and multiple attachments to the district clerk. Plaintiffs

later filed an amended complaint and an application to proceed in forma pauperis. Because the

information provided by plaintiffs in their pauper's affidavit indicates that they lack the funds

necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed

the complaint to be filed. The court now determines that this case should be summarily dismissed

for lack of subject matter jurisdiction.

 

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II.

HR Mailing Services, a presort service bureau, previously sought and obtained authorization

to present Value Added mailings to the United States Postal Service. In January 2003, plaintiffs

were told by a postal supervisor, in the presence of customers and others, that they were banned

from the Dallas Bulk Mail Center. Plaintiffs now sue for slander, fraud, and intentional infliction

of emotional distress. By this suit, plaintiffs seek $1 billion in compensatory and punitive damages

for the irreparable harm caused to their business.

A.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

 

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sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

B.

The United States Postal Service has the general power to sue and be sued in its official

name. See 39 U.S.C. § 401(a)(1). However, in actions sounding in tort, the remedies and

restrictions of the Federal Tort Claims Act ("FTCA") apply. Id. § 409(c); see also Insurance Co.

of North America v. United States Postal Service, 675 F.2d 756, 758 (5th Cir. 1982). One such

restriction retains sovereign immunity for "[a]ny claim arising out of . . . abuse of process, libel,

slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h).

The only claims alleged by plaintiffs in their complaint are slander, fraud, and intentional

infliction of emotional distress. Plaintiffs are precluded from suing the United States Postal Service

for slander and fraud under the express terms of the FTCA. Because plaintiff's intentional infliction

of emotional distress claim is based on the same conduct, that claim is also barred. See Stidham v.

United States, No. 00-31080, 2001 WL 360682 at *1 (5th Cir. Mar. 13, 2001), citing Truman v.

United States, 26 F.3d 592, 595-96 (5th Cir. 1994). Accordingly, this case should be dismissed for

lack of subject matter jurisdiction.

RECOMMENDATION

Plaintiffs' complaint should be summarily dismissed for lack of subject matter jurisdiction

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

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

 

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grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: February 13, 2006.

 

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