United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE
March 21, 2019, Defendant United States of
America 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
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”)).
Summary Judgment Standard
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).
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.
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,
Undisputed Material Facts
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).
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).
Conclusions of Law
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