Greenlee v. United States Postal Service , 247 F. App'x 953 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 7, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICH AR D G REENLEE,
Plaintiff-Appellant,
No. 06-3347 & 07-3029
v. (D .C. N o. 05-CV -2509-JW L &
06-CV-2167-CM )
U N ITED STA TES PO STA L (D . Kan.)
SERVICE,
Defendant-Appellee.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Richard Greenlee, proceeding pro se, appeals the district court’s dismissal
of two separate but substantially similar actions asserting various claims against
the United States Postal Service (“Postal Service”). W e consolidate these appeals
for the purposes of judgment and now AFFIRM the district court’s decision.
*
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 32.1.
These actions are the fourth and fifth suits that Greenlee has filed against
the Postal Service, G reenlee’s former employer. 1 The crux of Greenlee’s two
complaints, like those in his prior three actions, appears to be that the Postal
Service caused (or failed to protect him from) “the stalling out of his
transportation on numerous occasions by the military and defense [satellite]
systems,” broke into his truck with a master key, and used postal employees and
patrons to spy on him.
In the first of these two actions, the Postal Service moved to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Granting the 12(b)(1) motion,
the district court concluded that it lacked subject matter jurisdiction over any
plausible construction of G reenlee’s claims. It then denied the Postal Service’s
motion for filing restrictions against G reenlee, but cautioned a different result if
“plaintiff files yet another case with similar unintelligible and delusional
allegations against the defendant.”
Greenlee brought the second of these two actions just six months after
filing the first action, leveling the same general allegations. 2 In granting the
1
This court has affirmed dismissals of Greenlee’s prior actions in Greenlee
v. U.S. Postal Serv., No. 94-3139, 1995 W L 3960 (10th Cir. Jan. 4, 1995);
Greenlee v. U.S. Postal Serv., 83 F. App’x 308 (10th Cir. 2003); and Greenlee v.
U.S. Postal Serv., 176 F. App’x 927 (10th Cir. 2006).
2
The two actions were docketed with different district judges. It is unclear
if the judge in the first action knew of the second action at the time he denied
filing restrictions.
-2-
Postal Service’s 12(b)(6) motion, the district court concluded that Greenlee’s
complaint was barred by collateral estoppel. In addition, the court granted the
Postal Service’s motion for filing restrictions because Greenlee’s claims had now
“become overlapping in addition to ‘delusional.’” 3
As w e have noted on many occasions, “[a] pro se litigant’s pleadings are to
be construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). To
survive a motion to dismiss under Rules 12(b)(1) and (6), however, the pleadings
must nonetheless state a basis for subject matter jurisdiction and an actionable
claim. Fed. R. Civ. P. 12(b)(1), (6). W e have again review ed the virtually
incomprehensible allegations that are set forth in Greenlee’s filings, and again
agree with the district court that Greenlee’s complaints fall well short of this
standard.
Like the district court, we construe the bulk of Greenlee’s claims as arising
in tort. Although Congress has generally waived the Postal Service’s inherent
sovereign immunity, tort claims against the Postal Service must be brought
pursuant to the Federal Tort Claims Act (“FTCA”). See 39 U.S.C. § 409(c);
Dolan v. U.S. Postal Serv., 546 U.S. 481, 484 (2006). To the extent that Greenlee
3
Greenlee appears to challenge these filing restrictions in his reply brief.
However, given the frequency, redundancy, heft, and sheer implausibility of
Greenlee’s complaints, these modest restrictions are more than appropriate to
protect the limited resources of the district court as well our own. See W inslow
v. Hunter, 17 F.3d 314, 315 (10th Cir. 1994).
-3-
asserts that the Postal Service neglected to protect him from the nefarious actions
of other federal entities, he has failed to demonstrate timely exhaustion of his
administrative remedies under the FTCA. See 28 U.S.C. § 2401(b). The district
court thus lacks jurisdiction over these claims. See 28 U.S.C. § 2675(a). As for
Greenlee’s allegations that the Postal Service has intentionally and directly
harmed him and his property, his claims fall outside the FTCA— and the district
court’s jurisdiction— because of the FTCA’s intentional tort exception. See 28
U.S.C. § 2680(h); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 853-54 (10th Cir. 2005).
The remainder of Greenlee’s claims, cryptically citing several employment
antidiscrimination statutes, relate to his termination by the Postal Service and its
subsequent refusal to rehire him. Given that Greenlee was terminated over fifteen
years ago and has failed to plead exhaustion of his administrative remedies, he
has not satisfied the jurisdictional requirements of Title VII, see 42 U.S.C. §
2000e-16(c) (civil actions must be filed within 90 days of a final determination by
the EEOC), the Age Discrimination in Employment Act (“ADEA”), see 29 U.S.C.
§ 633a(b)(3); Jones v. Runyon, 32 F.3d 1454, 1456 (10th Cir. 1994) (applying
Title VII’s exhaustion requirement and limitations period to the ADEA), or the
Americans with Disabilities Act (“ADA”) and Rehabilitation Act, see Barnes v.
Gorman, 536 U.S. 181, 184-85 (2002) (the Rehabilitation Act’s procedures
govern ADA claims against federal employers); Johnson v. Orr, 747 F.2d 1352,
-4-
1356-57 (10th Cir. 1984) (applying Title VII’s jurisdictional requirements to the
Rehabilitation Act). Nor will construing his arguments as arising under the Due
Process Clause establish jurisdiction, as sovereign immunity bars Bivens claims
against federal agencies. See FDIC v. M eyer, 510 U.S. 471, 484-85 (1994).
Because Greenlee’s two actions raise effectively identical allegations and
arguments, the district court lacks subject matter jurisdiction over the second
action for the same reasons. W e therefore need not consider whether his claims
in the second action were also barred by collateral estoppel.
W ith regard to his “motion to set off or counterclaim,” we gather that
Greenlee w ishes to assert additional damages because the Clerk of Court
allegedly failed to respond to a motion for extension of his time to file a reply
brief. Leaving aside the dubious substantive merits of the motion, the court did
grant G reenlee’s requested extension a week before he filed the motion.
Greenlee’s motion is therefore moot.
For these reasons, the judgment of the district court is AFFIRM ED, and
Greenlee’s “motion to set off or counterclaim” is DENIED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-5-