Richmond v. Indiana Department of Corrections et al

Filing 6

OPINION AND ORDER: The Court: DISMISSES the claims against the United States Department of Labor; DISMISSES the United States Department of Labor; GRANTS Mark Richmond until 6/30/2015, to file an amended complaint; and CAUTIONS Mark Richmond that if he does not respond by that deadline, the remaining claims will be remanded to the LaPorte Superior Court. Signed by Judge Rudy Lozano on 6/3/2015. (cc: Plaintiff)(rmc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MARK RICHMOND,

)
)
Plaintiffs,
)
)
vs.
)
)
INDIANA DEPARTMENT OF CORRECTIONS, )
et al.,
)
)
Defendants.
)

CAUSE NO. 3:15-CV-227

OPINION AND ORDER
This matter is before the court on the complaint (DE 3) filed
by Mark Richmond, a pro se prisoner, on April 27, 2015, in the
LaPorte Superior Court under cause number 46D02-1504-CT-825 and
removed to this court by the United States Department of Labor on
May 28, 2015. For the reasons set forth below, the court: (1)
DISMISSES the claims against the United States Department of Labor;
(2) DISMISSES the United States Department of Labor; (3) GRANTS
Mark Richmond until June 30, 2015, to file an amended complaint;
and (4) CAUTIONS Mark Richmond that if he does not respond by that
deadline, the remaining claims will be remanded to the LaPorte
Superior Court.

BACKGROUND
Mark Richmond is an inmate at the Indiana State Prison. From
July 17, 2006, to October 28, 2013, he was enrolled in the
Paralegal Apprenticeship Program at the prison. He alleges that

program was registered with the United States Department of Labor.
His

participation

Coordinator

Kristal

in

the

Kajer

program

ended

discontinued

when

the

Apprenticeship

program.

Richmond

alleges that when he started the program, he entered into a
contract. He filed this case in the LaPorte Superior court seeking
to recover for a breach of that contract. The United States
Department of Labor removed the case to this Court pursuant to 28
U.S.C. § 1442(a)(1) because it is an agency of the United States.

DISCUSSION
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and
citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A,
the court must review the merits of a prisoner complaint and
dismiss it if the action is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief
against a defendant who is immune from such relief.
Richmond did not attach a copy of the contact which he alleges
was breached and therefore it is unclear why he believes that the
United States Department of Labor had a contract with him. However,
what

is

clear

is

an

apprenticeship

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contract

executed

by

an

apprentice

in

a

program

registered

with

the

United

States

Department of Labor is not a contract with the Department of Labor.
Rather it is “a written agreement, complying with §29.7 between an
apprentice and either the apprentice’s program sponsor, or an
apprenticeship
sponsor(s),

committee

which

acting

contains

the

as

agent

terms

and

for

the

conditions

program
of

the

employment and training of the apprentice.” 29 C.F.R. § 29.2.
Moreover, “[n]owhere in [29 C.F.R. Part 29] is [the Department of
Labor Bureau of Apprenticeship and Training] granted authority to
contract

with

private

individuals

concerning

apprenticeship

training or their wages during such training.” Lopinson v. United
States, 15 Cl. Ct. 712, 715 (1988). “Hence, no implied-in-fact
contract existed or could exist.” Id. Furthermore, to the extent
the

Richmond

has

named

the

Department

of

Labor

because

it

administered the national standards under which his apprenticeship
program was operating, “[a]n attempt to implement standards which
promote the common good and general welfare clearly constitutes a
sovereign act.” Id. at 716. As such, the department has sovereign
immunity and cannot be sued. See F.D.I.C. v. Meyer, 510 U.S. 471,
475 (1994).
As explained, this complaint does not state a claim against
the Department of Labor. Therefore the Department of Labor, and the
claims against it, must be dismissed. However, because Richmond did
not attach a copy of the contract which he alleges was breached, it

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remains possible (however unlikely) that he did have a contract
(other than his apprenticeship contract)

directly with the

Department of Labor. If he does, he may file an amended complaint
setting forth those allegations and attaching a copy of the contact
showing that the Department of Labor directly entered into a
contract with him. See Luevano v. Wal-Mart, 722 F.3d 1014 (7th Cir.
2013). If he does this, the Department of Labor may be restored as
a defendant in this case. But if not, then there are no longer any
federal defendants or claims remaining.
This case was removed to this Court solely because the
Department of Labor is an agency of the United States. Without the
Department of Labor, it would not be appropriate for this Court to
exercise supplemental jurisdiction over the remaining defendants
and claims. See Al’s Serv. Ctr. v. BP Prods. N. Am., Inc., 599 F.3d
720, 727 (7th Cir.2010). (“When all federal claims in a suit in
federal court are dismissed before trial, the presumption is that
the

court

will

relinquish

federal

jurisdiction

over

any

supplemental state-law claims.”) and Doe-2 v. McLean County Unit
Dist. No. 5 Bd. of Dirs., 593 F.3d 507, 513 (7th Cir. 2010)
(“Ordinarily, when a district court dismisses the federal claims
conferring original jurisdiction prior to trial, it relinquishes
supplemental jurisdiction over any state-law claims under 28 U.S.C.
§ 1367(c).”) Therefore unless one of the parties can overcome that
presumption by explaining why the Court should retain supplemental

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jurisdiction, this case will be remanded to the LaPorte Superior
Court if Richmond does not file an amended complaint which can
state a claim against the Department of Labor.

CONCLUSION
For the reasons set forth above, the Court: (1) DISMISSES the
claims against the United States Department of Labor; (2) DISMISSES
the United States Department of Labor; (3) GRANTS Mark Richmond
until June 30, 2015, to file an amended complaint; and (4) CAUTIONS
Mark Richmond that if he does not respond by that deadline, the
remaining claims will be remanded to the LaPorte Superior Court.

DATED: June 3, 2015

/s/RUDY LOZANO, Judge
United State District Court

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