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MacDonald v. Adams

United States District Court, E.D. Michigan, Southern Division

August 31, 2016

MELVIN MacDONALD, Plaintiff,
v.
ORLANDO ADAMS, Defendant.

          Melvin MacDonald, Plaintiff, Pro Se.

          Orlando Adams, Defendant, represented by Vanessa Miree Mays, United States Attorney's Office.

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN, Magistrate Judge.

         Plaintiff 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. § 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.

         I. FACTS

         In his 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 residence.

         Defendant Adams removed the case to this Court under 28 U.S.C. § 1442(a)(1), based on a colorable federal defense. In this motion, Defendant seeks dismissal based on sovereign immunity.

         II. STANDARD OF REVIEW

         A 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 Cir. 2007).

         III. DISCUSSION

         Defendant 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).

         A suit 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 jurisdiction.

         Plaintiff 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 ...


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