Smith v. United States Postal Service et al, No. 1:2016cv00087 - Document 9 (D. Mont. 2016)
Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Complaint 2 DISMISSED for lack of jurisdiction. Any appeal of this decision would not be taken in good faith Signed by Judge Susan P. Watters on 7/5/2016. (TAG, ) =
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Smith v. United States Postal Service et al Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONT ANA BILLINGS DIVISION FILED JUL 0 5 2016 Clef1<, US . Distr;Ci o~'Strict Court Billin::Sontana FREDERICK PAUL SMITH, CV 16-87-BLG-SPW Plaintiff, ORDER vs. UNITED STATES POSTAL SERVICE, Defendant. Plaintiff Frederick Paul Smith filed a Motion to Proceed in District Court without Prepaying Fees or Costs and a proposed Complaint. (Docs. 1, 2). United States Magistrate Judge Carolyn Ostby entered Findings and Recommendations on June 21, 2016, in which she recommended that this Court dismiss Smith's Complaint on the basis of sovereign immunity. (Doc. 4). Pursuant to 28 U.S.C. § 636(b)(l), Smith had 14 days to file written objections after Judge Ostby's Findings and Recommendations were filed. On June 27, 2016, Smith filed his objections and cited 18 U.S.C. § 1709, which is a criminal statute. (Doc. 4). Smith is entitled to de novo review of the Findings and Recommendations to which he objects. After de novo review, this Court adopts Judge Ostby's Findings and Recommendations and dismisses the Complaint. 1 Dockets.Justia.com ~------------------------------------- I. Discussion In his objections, Smith cites to 18 U.S.C. § 1709, which is a criminal statute, and does not provide him with a civil cause of action. After reviewing Smith's Complaint, this Court agrees with Judge Ostby that Smith's claims against the Postal Service for the loss of his sapphire are barred by sovereign immunity. See 28 U.S.C. § 2680(b). Since the United States has not waived its sovereign immunity, the Court lacks subject matter jurisdiction. II. Conclusion The Court finds no clear error. Accordingly, IT IS HEREBY ORDERED that: 1. Judge Ostby's Findings and Recommendations (Doc. 4) are ADOPTED IN FULL. 2. Smith's Complaint (Doc. 2) is DISMISSED for lack of jurisdiction. 3. The Clerk of Court shall close this matter and enter judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. 4. The Clerk of Court is further directed to have the docket reflect that the Court certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. No reasonable person could suppose an appeal would have merit. The record makes plain the instant Complaint lacks arguable substance in law or fact. 2 ---------------------------- >f-/~ DATED this ,5' day of July 2016. ~ r VdA56-~ 7 SUSANP. WATTERS United States District Judge 3
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