Ziglar v. United States Postal Service ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Christerphor Ziglar, No. CV-21-01223-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 United States Postal Service, 13 Defendant. 14 15 16 Pending before the Court is Defendant United States Postal Service’s Motion to 17 Dismiss for Lack of Jurisdiction/Failure to State a Claim (Doc. 25). For the reasons below, 18 the motion is granted. 19 BACKGROUND 20 Plaintiff, Mr. Christerphor Ziglar, claims that the United States Postal Service 21 violated his protected religious beliefs by refusing to serve him after he declined to wear a 22 mask inside a federal building. (Doc. 1 at 4.) He claims that when he attempted to file a 23 complaint about this violation, a “co-chair” named Tina Sweeney refused to give Plaintiff 24 the name of the manager that discriminated against him. (Id.) Since then, Plaintiff claims 25 he has faced harassment from postal carriers, including threats of harm. (Id.) Given these 26 events, he seeks $100,000 in damages for emotional distress. (Id.) 27 Plaintiff filed his Complaint on July 13, 2021. After that, the Court gave Plaintiff 28 several warnings that he had not properly executed service under the Federal Rules of Civil 1 Procedure and granted several extensions so that he could execute proper service. (Docs. 2 5, 12, 15.) On January 12, 2022, the Court stayed the case until February 18, 2022, in light 3 of a significant personal tragedy Plaintiff experienced. (Doc. 24.) Defendant subsequently 4 filed the pending Motion to Dismiss under Federal Rules 12(b)(1) and 12(b)(6), including 5 a proper notice of conferral. (Doc. 25.) Plaintiff filed no response. 6 DISCUSSION 7 Because federal courts are courts of limited jurisdiction, a complaint is subject to 8 dismissal where the Court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). 9 Whether a court has subject matter jurisdiction may be considered on a facial or factual 10 basis. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a 11 facial attack, the challenger asserts that the allegations contained in a complaint are 12 insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the 13 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke 14 federal jurisdiction.” Id. Here, Defendant makes a facial attack by claiming that Plaintiff’s 15 suit must fail because the Postal Service is entitled to sovereign immunity, which deprives 16 the Court of subject matter jurisdiction. 17 Suits against the United States and its agencies are barred by sovereign immunity 18 unless permitted by an explicit waiver of immunity from suit. FDIC v. Meyer, 510 U.S. 19 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The United States Postal Service, as an 20 agency of the United States, is entitled to sovereign immunity. FDIC, 510 U.S. at 475; 21 United States v. Testan, 424 U.S. 392 (1976) (“In a suit against the United States, there 22 cannot be a right to money damages without a waiver of sovereign immunity.”). By failing 23 to respond, Plaintiff has not established that any statutory waiver of sovereign immunity is 24 applicable. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996) (“The party invoking 25 the Court’s jurisdiction bears the burden of proving the actual existence of subject matter 26 jurisdiction.”). And, in any event, Defendant has demonstrated that none is applicable 27 under the relevant statute, 42 U.S.C § 2000a. Friday v. United States, No. 92-888-FR, 28 - 2 - 1993 U.S. Dist. LEXIS 6320, 1993 WL 165656, at *2 (D. Or. May 7, 1993), aff'd, 21 F.3d 1113 (9th Cir. 1994) (noting that the United States did not waive its immunity for constitutional torts such as discrimination in public accommodations under 42 U.S.C. § ‘ 2000a-2). ° CONCLUSION ° Accordingly, IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. 25) 8 is granted. ° IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 10 and enter judgment accordingly. Dated this 23rd day of March, 2023. 12 _ -\ 13 A Whacrsay Sooo) Whirray SvOt) 14 . □□□ Murray now Chief United states District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-