                                                                        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not binding precedent, except under the doctrines of law of the case, res judicata,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”),




                                         -2-
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...)

                                         -3-
       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.

                                         -4-
judgment of the district court is AFFIRMED.



                                   ENTERED FOR THE COURT


                                   Carlos F. Lucero
                                   Circuit Judge




                                     -5-
