F I L E D
United States Court of Appeals
Tenth Circuit
August 31, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
JOSEPH CURIALE,
Plaintiff-Appellant,
v.
No. 05-4130
(D.C. No. 2:04-CV-971 TC)
JACK POTTER, United States
(District of Utah)
Postmaster General, and UNITED
STATES POSTAL SERVICE,
Defendant-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.
Joseph Curiale, without stating under what law he brings his claims, alleges
that the United States Postal Service (“USPS”) “besmirched [his] honourable
characterability,” and discriminated against him and his wife on the basis of an
unnamed disability. He seeks $2,999,000.00 in damages. The district court
reviewed Curiale’s complaint and dismissed under 28 U.S.C. § 1915, determining
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. 36.3.
that he had failed to state a claim for which relief may be granted. Curiale
appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the
dismissal for substantially the same reasons as the district court.
Curiale does not state the factual basis for his claims on appeal. The
complaint, although confusing and difficult to read, appears to indicate that the
mail carriers in Vernal, Utah, will not deliver packages directly to his door based
on an incident involving Plaintiff at a Post Office. The allegations are the same
as those underlying his appeal before this court last month in Curiale v. Walker,
2005 WL 1332350 C.A.10 (June 07, 2005). In that case, in which the defendant
was the former governor of Utah, we dismissed because “last we checked, the
Governor of Utah had no authority or responsibility with respect to the delivery of
the U.S. mail.” Curiale 2005 WL 1332350 at *2. The defendant before us in this
case is the USPS, which does have substantial authority and responsibility with
respect to the delivery of the U.S. mail. We proceed therefore to the merits of
Curiale’s claim.
Curiale submitted to the district court a letter from the U.S. Postal Service
stating that the postmaster suspended delivery due to Curiale’s repeated
threatening behavior. An exhaustive search of relevant postal regulations and
directives led us to Section 623.3 of the Postal Operations Manual (“POM”),
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entitled “Withdrawal of Delivery Service: Safety or Security.” That Section
provides, in its entirety:
Delivery service may be suspended when there is an immediate threat
(including, but not limited to, threats due to loose animals) to the
delivery employee, mail security, or postal property. Suspension of
service should be limited to an area necessary to avoid the immediate
threat. Postmasters should request corrective action from responsible
parties and restore normal service as soon as appropriate.
United States Postal Service, Postal Operations Manual, Issue 9, § 623.3 (2002).
There is no reason to think that this directive was applied unfairly to
Curiale. At most, he alleges that its neutral application inconvenienced him
particularly because of his disability. We note that the Supreme Court has a long
jurisprudence emphasizing the importance of protecting the honor and bodily
integrity of our nation’s mail carriers. As early as the nineteenth century, the
Court noted:
[I]f the President or the Postmaster General is advised that the mails
of the United States, possibly carrying treasure, are liable to be
robbed and the mail carriers assaulted and murdered in any particular
region of the country, who can doubt the authority of the President or
of one of the executive departments under him to make an order for
the protection of the mail and of the persons and lives of its
carriers . . . with a posse comitatus properly armed and equipped, to
secure the safe performance of the duty of carrying the mail wherever
it may be intended to go?
In re Neagle, 135 U.S. 1, 65 (1890). 1
1
Although the USPS is now an independent agency operated by an
(continued...)
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If the executive may provide for a posse comitatus – properly armed and
equipped – to secure the safe performance of mail-carrying, a fortiori we cannot
“doubt the authority” of the USPS to make a much more modest order such as the
one in this case. Furthermore, we, in the absence of any evidence to the contrary,
decline to call into doubt the legitimacy of the USPS’s determination that Curiale
posed a threat to the persons of its carriers. We note that the agency in its letter
to Curiale did suggest that Curiale take corrective action, as required by the POM.
The district court concluded that even “constru[ing] his pleadings
liberally . . . the complaint must be dismissed for failure to state a claim on which
relief may be granted.” Under 28 U.S.C. § 1915(e)(2)(B), a court must dismiss a
case at any time it determines that an action is frivolous or malicious or fails to
state a claim on which relief may be granted. We review a district court’s
§ 1915(e) determination for abuse of discretion. McWilliams v. Colorado, 121
F.3d 573, 574-75 (10th Cir. 1997). We conclude that the district court did not
abuse its discretion by dismissing Curiale’s claim under § 1915(e)(2)(B), and the
1
(...continued)
autonomous public corporation, it is still a constitutionally provided-for
government agency, see U.S. Const., art. I, § 8, cl. 7, and Neagle thus remains
relevant precedent.
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judgment of the district court is AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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