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Witt v. Palmer

United States District Court, S.D. Alabama, Southern Division

June 27, 2019

LOUIS WITT, Plaintiff,
v.
TRACY S. PALMER, Defendant.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         On March 21, 2019, Defendant United States of America[1] filed a Motion to Dismiss Plaintiff's complaint in this action. (Doc. 4). This motion has been referred to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72. Because Defendant presented and relied upon material outside of the pleadings, the motion has been treated as a motion for summary judgment, pursuant to Rule 12(d) of the Federal Rules of Civil Procedure. (See Doc. 6). For the reasons set forth below, the undersigned Magistrate Judge RECOMMENDS that Defendant's motion be GRANTED.

         I. Background

         On August 9, 2018, Plaintiff Louis Witt, proceeding pro se, filed a complaint in the Small Claims Court of Escambia County, Alabama, against Tracy S. Palmer, as the Post Master of Flomaton, Alabama. (Doc. 1 at p. 5). In his complaint, he seeks the recovery of $100 because the Post Master did not deliver his mail after he moved his mailbox to the intersection of McCall Beach Road and Amber Beach Road, which was approximately one mile from its original location. (Id.). The United States of America removed Witt's action to this Court on February 21, 2019, pursuant to 28 U.S.C. § 1442(a)(1). (Doc. 1). On that same date, the United States filed a Notice of Substitution of Party Defendant, substituting itself as the defendant in place of Tracy S. Palmer as to the claims raised against her in the complaint. (Doc. 2). On March 21, 2019, the United States filed a Motion to Dismiss this action. (Doc. 4). Plaintiff filed no response to the motion to dismiss. However, because the motion to dismiss was supported by matters outside of the pleadings, pursuant to Rule 12(d), the motion was treated as one for summary judgment. (Doc. 6). Witt was ordered to file an affidavit setting forth the facts of his claim and any opposition he had to the facts set forth by the United States if he wished to oppose the motion. (Doc. 6 at p. 2). He did not file any response or opposition in this Court; however, on June 20, 2019, he filed a document in the Small Claims Court of Escambia County, the court in which he commenced his action, indicating that he no longer wishes to pursue his case. (Doc. 7-1 at p. 2 (“Louis Witt not to purse case”)).

         II. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The United States, as the party seeking summary judgment, bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “After the nonmoving party has responded to the motion for summary judgment, the court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” AGSouth Genetics, LLC v. Cunningham, No. CA 09-745-C, 2011 WL 1833016, at *2 (S.D. Ala. May 13, 2011).

         In this case, the non-moving party, Witt, has not responded to the motion for summary judgment. However, “[s]ummary judgment is not automatically granted by virtue of a non-movant's silence.” Williams v. Aircraft Workers Worldwide, Inc., 832 F.Supp.2d 1347, 1352 (S.D. Ala. 2011). “Even in an unopposed motion [for summary judgment], ... the movant is not absolve[d] ... of the burden of showing that it is entitled to judgment as a matter of law.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (citations and internal quotation marks omitted); see also United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004) (“[T]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed, but, rather, must consider the merits of the motion ... [and] ensure that the motion itself is supported by evidentiary materials.”); Commentary to 2010 Amendments to Fed.R.Civ.P. 56(e) (“summary judgment cannot be granted by default even when there is a complete failure to respond to the motion”). Even so, a court is not obligated to construct arguments or theories or to conjure up evidence that a party has chosen not to present on its own accord.

         Accordingly, Witt's failure to offer evidence or any authority in opposition to the motion filed by the United States leaves the Court with the sole task of determining whether the motion is supported by sufficient evidentiary material to support a finding on the merits that the United States is entitled to judgment in its favor as a matter of law. See One Piece of Real Property, 363 F.3d at 1101-02; SE Prop. Holdings, LLC v. Stradley, Civ. A. No. 11-0219-WS-N, 2012 WL 1605561, at *2-3 (S.D. Ala. May 7, 2012).

         III. Undisputed Material Facts

         In July of 2018, Witt moved his mailbox from a public access road to a private road and behind a gate that can be locked. (Doc. 4-1 at pp. 1-2). The new location was approximately 1.8 miles round trip from its original location. (Doc. 4-1 at p. 2). Witt was told both in person and by letter that the postal service could not deliver mail to the new location. (Doc. 4-1 at pp. 2-3). A request for a change in rural delivery is done on a PS Form 4027, Petition for Change in Rural Delivery. (Doc. 4-1 at p. 3). The PS Form 4027 explains that “[p]roposed extensions of rural routes should ordinarily serve an average of at least one family for each additional mile of travel, including retrace. An extension is generally not approved by the U.S. Postal Service when the road to be traveled is private or is not maintained and in good condition.” (Doc. 4-2). Witt moved his mailbox back to its original location in or about November of 2018. (Doc. 4-1 at p. 3).

         Witt did not file an administrative claim with the United States Postal Service. (Doc. 4-3 at pp. 1-2). Instead, he proceeded with filing a claim seeking $100 in damages in the Small Claims Court of Escambia County, Alabama. (Doc. 1 at p. 5).

         IV. Conclusions of Law

          The United States based its motion to dismiss Witt's action on two grounds: 1) failure to state a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”) and 2) failure to exhaust administrative remedies. The Court will address the exhaustion argument first.

         1. Failu ...


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