2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2015

Assem Abulkhair v. United States Postal Service

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Recommended Citation

"Assem Abulkhair v. United States Postal Service" (2015). 2015 Decisions. Paper 762.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/762
BLD-264 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1651

___________

ASSEM A. ABULKHAIR,

Appellant

v.

UNITED STATES POSTAL SERVICE; UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-13-cv-07796)

District Judge: Honorable Kevin McNulty

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect

or Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

July 9, 2015

Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

(Opinion filed: July 20, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Assem A. Abulkhair, proceeding pro se and in forma pauperis, appeals the District 

Court’s order dismissing his complaint. For the reasons set forth below, we will 

summarily affirm the District Court’s order.

Abulkhair filed this action against the United States Postal Service and the United 

States asserting various claims of invasion of privacy, negligence, and infliction of 

emotional distress pursuant to the Federal Tort Claims Act, based on allegations that the 

government tampered with his mail because he is a Muslim of Middle Eastern origin. 

The defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the 

complaint. The District Court granted the defendants’ motion to dismiss and entered an 

order dismissing the complaint without prejudice, but it did not expressly grant leave to 

amend. Rather than filing an amended complaint, Abulkhair filed a notice of appeal. 

Normally, an order that “dismisses a complaint without prejudice is neither final 

nor appealable” under 28 U.S.C. § 1291. Borelli v. City of Reading, 532 F.2d 950, 951 

(3d Cir. 1976). Such an order becomes final and appealable, however, if the plaintiff 

intends to “stand on his complaint” instead of amending it. Id. at 951-52. Here, instead 

of seeking leave to amend his complaint, Abulkhair filed a timely notice of appeal. He 

also submitted a response insisting that the complaint complied with the pleading 

requirements and foregoing the opportunity to amend his complaint. Therefore, the 

District Court’s order is final and appealable because Abulkhair elected to stand on his 

complaint. Frederico v. Home Depot, 507 F.3d 188, 192-93 (3d Cir. 2007) (concluding 
3

that a plaintiff had elected to stand on her complaint where she did not seek to correct the 

purported pleading deficiencies, but instead repeatedly asserted that her complaint was

sufficient as filed). Thus, we have jurisdiction over Abulkhair’s appeal.

Having determined that jurisdiction is proper, we may summarily affirm the 

decision of the District Court if no substantial question is presented on appeal. 3d Cir. 

L.A.R. 27.4; I.O.P. 10.6. We exercise plenary review over the District Court’s dismissal 

order. See Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). To survive a 

motion to dismiss, “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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The 

plausibility standard “asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Id. A claim has facial plausibility when the plaintiff pleads factual content 

that “allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id.

The District Court properly dismissed Abulkhair’s complaint. The complaint fails 

to rise above general allegations and conjecture to offer any factual allegations that could 

plausibly support Abulkhair’s alleged tort claims. Abulkhair alleged that, for over a 

decade, the United States Postal Service and the United States, acting through an 

unknown number of its agents and employees, including an unnamed postmaster at his 

local post office, tampered with his mail because he is a Muslim of Middle Eastern 
4

origin. Abulkhair complained to the local post office staff and various government 

offices about the tampering, which he alleged consisted of opening his private mail and 

intercepting and delaying his outgoing mail. Apart from identifying Abulkhair’s local 

post office, however, the complaint contains no allegations that “nudge[]” his claim of a

decade-long mail tampering scheme “across the line from conceivable to plausible.” 

Iqbal, 556 U.S. at 680 (internal quotation marks omitted). The pleading standard “does 

not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Id. at 678. Here, that is all Abulkhair has 

pleaded. As the District Court correctly determined, the complaint’s allegations 

regarding the alleged campaign to tamper with Abulkhair’s mail amount only to the sort 

of “‘naked assertion[s]’devoid of ‘further factual enhancement’” that fail to meet the 

minimum pleading standards. Id. at 678 (quoting Twombly, 550 U.S. at 557). 

There being no substantial question presented on appeal, we will summarily affirm 

the District Court’s order dismissing Abulkhair’s complaint. See 3d Cir. L.A.R. 27.4; 

I.O.P. 10.6. Appellant’s motion to supplement the record is denied.