United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge.
Karen Lundregan brings this pro se action against
Defendant United States of America for failure to deliver her
mail. ECF No. 1-1 at 2. Defendants filed a Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) on September 12, 2018. ECF
No. 15. A Rule 12/56 letter was mailed to Plaintiff on
September 14, 2018, notifying her of her right to respond and
warning that a failure to respond could result in dismissal
of the action. ECF No. 16. Eight months later, Plaintiff has
still not responded to the Motion to Dismiss. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Defendant's Motion to Dismiss, ECF No. 15, is
alleges that the United States Postal Service has failed to
deliver her mail “due to malice, intentional delay,
” and “intentional wrongful actions, ”
resulting in “severe emotional and physical
distress.” ECF No. 1-1 at 2. Plaintiff seeks recovery
of all of her goods held by the post office and damages in
the amount of $5, 000. Id.
federal court must have subject-matter jurisdiction to decide
a matter before it. Lightfoot v. Cendant Mortg.
Corp., 137 S.Ct. 553, 562 (2017). If it does not, then
the court must dismiss the case. Fed.R.Civ.P. 12(b)(1). In a
challenge to the factual basis for subject-matter
jurisdiction such as this one, it is the plaintiff's
burden to prove that subject-matter jurisdiction exists.
See Richmond, Fredericksburg & Potomac R.R. Co. v.
United States, 945 F.2d 765, 768 (4th Cir. 1991). In a
facial challenge to subject-matter jurisdiction, a court must
determine if the complaint fails to allege facts upon which
subject-matter jurisdiction can be based. See Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009). The
Court is to “regard the pleadings' allegations as
mere evidence on the issue, ” and applies “the
standard applicable to a motion for summary judgment, under
which the nonmoving party must set forth specific facts
beyond the pleadings to show that a genuine issue of material
fact exists.” Richmond, 945 F.2d at 768..
pro se plaintiff is held to a “less
stringent” standard than a lawyer, and the Court must
liberally construe a pro se plaintiff's
pleadings. Erickson v. Pardus, 551 U.S. 89, 94
(2007). But these principles are not without limits, and
courts cannot “conjure up questions never squarely
presented to them.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Plaintiff's claim appears to most resemble one for the
tort of replevin. See ECF No. 1-1 at 2 (marking box
for “replevin” on the complaint); id. at
3-4 (show cause orders in action of replevin). Claims for
torts against the United States are governed by the Federal
Tort Claims Act, which “waives sovereign immunity and
gives district courts jurisdiction to hear tort claims
brought against the government.” Jackson v. United
States, 248 F.Supp.3d 167, 170 (D.D.C. 2017). But to
take advantage of the FTCA's waiver of sovereign
immunity, plaintiffs must first exhaust their administrative
remedies. Kokotis v. United States Postal Service,
223 F.3d 275, 278 (4th Cir. 2000). Plaintiffs must exhaust
their administrative remedies by filing an administrative
tort claim within two years of the incident. Id.
This claim consists of a Standard Form 95 or other written
notification of an incident, accompanied by a claim for money
damages in a sum certain for injury or loss of property. 28
C.F.R. § 14.2(a). Plaintiff has not alleged that she
completed a Form 95 or delivered any other written
notification to the government. ECF No. 1-1. Furthermore, the
government has filed an affidavit swearing that a search of
official public records revealed that, in fact, no such
administrative tort claim has been “filed by or on
behalf of Karen Lundregan.” ECF No. 15-2 ¶ 4;
see also Witthohn v. Fed. Ins. Co., 164 Fed.Appx.
395, 396 (4th Cir. 2006) (On a motion to dismiss, a court
“may consider official public records, documents
central to plaintiff's claim, and documents sufficiently
referred to in the complaint so long as the authenticity of
these documents is not disputed.”). Because Plaintiff
has not proven that she has exhausted her administrative
remedies, the Court does not have jurisdiction to consider
her claims and her complaint must be dismissed.
Motion to Dismiss, ECF No. 15, is granted. A separate Order
 Plaintiff originally named the United
States Post Office located at 500 N. Washington Street in
Rockville, Maryland, and two United States Postal Service
employees, Postmaster Michael Benevento and Napoleon
Thompson, as Defendants. The Court granted the United States
of America's Motion to ...