United States District Court, E.D. Michigan, Southern Division
MacDonald, Plaintiff, Pro Se.
Orlando Adams, Defendant, represented by Vanessa Miree Mays,
United States Attorney's Office.
REPORT AND RECOMMENDATION
STEVEN WHALEN, Magistrate Judge.
Melvin MacDonald, an employee of the United States Postal
Service ("USPS"), filed a petition for a personal
protection order ("PPO") in State court, against
his supervisor, Defendant Orlando Adams, who removed the case
to this Court on November 13, 2015. Before the Court is
Defendant's Motion to Dismiss [Doc. #2], which has been
referred for a Report and Recommendation under 28 U.S.C. Â§
636(b)(1)(B). For the reasons discussed below, I recommend
that the motion be GRANTED and that the Plaintiff's
complaint be DISMISSED WITH PREJUDICE.
petition for a PPO [Doc. #1], Plaintiff alleges that in July
of 2015, Defendant Adams, a supervisor at the USPS facility
where Plaintiff worked, "came after" him, and was
forced to leave by other employees. He states that in October
of that year, Adams walked behind Plaintiff's work
station and said, "I'm watching you." Plaintiff
states that Adams was suspended as a result of the July
incident. In his petition, Plaintiff asked the State court to
restrain Adams from following him, communicating with him,
approaching him in public, and appearing at his workplace and
Adams removed the case to this Court under 28 U.S.C. Â§
1442(a)(1), based on a colorable federal defense. In this
motion, Defendant seeks dismissal based on sovereign
STANDARD OF REVIEW
Plaintiff has the burden of establishing subject matter
jurisdiction. Moir v. Greater Cleveland Regional Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990). Where, as
here, a defendant brings a facial challenge to jurisdiction
under Fed.R.Civ.P. 12(b)(1), the Court accepts the
plaintiff's allegations in the complaint as true,
similarly to a motion under Rule 12(b)(6). Gentek Bldg.
Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th
Adams is a supervisor with the USPS, and as such, construes
the Plaintiff's petition to have named him in his
official capacity. In his response to this Motion [Doc. #5],
Plaintiff contends that Adams continues to harass him, but
does not contest that Adams is being sued in his official
capacity. Nor does Plaintiff respond to Defendant's
argument that Adams is protected by sovereign immunity.
Moreover, a suit against a government employee that seeks
injunctive relief is considered to have been brought against
that employee in his or her official capacity. See
Kirby v. City of Elizabeth, 388 F.3d 440, 452, n. 10
(4th Cir. 2004), citing Frank v. Relin, 1 F.3d 1317,
1327 (2d Cir. 1993)(equitable relief against government
employee could only be obtained in his official capacity).
brought against the employee of a governmental entity in his
or her official capacity is a suit against the entity itself.
Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
Sovereign immunity protects the United States and its
agencies from lawsuits, unless immunity is waived by
Congress. Lane v. Pena, 518 U.S. 187, 192 (1996).
Congress has not waived immunity for the USPS. Defendant
cites Cubb v. Belton, 2015 WL 4079077 (E.D. Mo.
2015), where the Court found that no act of Congress,
including the Postal Reorganization Act, operates to waive
sovereign immunity for the USPS. In Cubb, a postal
employee petitioned for a PPO against a supervisor, seeking
to restrain him from contacting him at work. The Court
dismissed the case for lack of subject matter jurisdiction.
Cubb cited two other cases involving USPS employees
who, like Plaintiff, sought PPOs against their supervisors:
Hendy v. Bello, 555 Fed.App'x 224 (4th Cir.
2014), and Grace v. Hughes, 2014 WL 7333845, *2
(E.D. Mo. 2014). The Courts in both cases found that there
was no Congressional waiver of sovereign immunity as to the
USPS, and dismissed the complaints for lack of subject matter
has offered no response to Defendant's sovereign immunity
argument, and has not carried his burden of establishing
subject matter jurisdiction. I agree with the reasoning of