Long v. Hillsman et al

Filing 12

ORDER ENTERED: Plaintiff's motion 6 to remand is granted. Defendants' motion 8 for screening by this court under 28 U.S.C. 1915A and plaintiff's motion 10 to deem individual defendants properly before the court for service are moot. This case is remanded to the District Court of Leavenworth County, Kansas. ***Terminating Case. Signed by Senior District Judge Sam A. Crow on 4/12/2011. (Mailed to pro se party Charles Gordon Long by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CHARLES GORDON
LONG,
Plaintiff,
v.

CASE NO.

11-3051-SAC

J. BENSON HILLSMAN,
et al.,
Defendants.
O R D E R
This civil complaint was filed pro se by an inmate of the
United States Penitentiary, Leavenworth, Kansas (USPL).

The action

was initially filed on January 27, 2011, in the Leavenworth County
District Court, Leavenworth, Kansas.

Summons was served upon

defendants who are USPL employees, and they were directed to file an
Answer.

On March 1, 2011, the federal defendants filed a Notice of

Removal to this court.

The defendants request that this court

screen the complaint pursuant to 28 U.S.C. § 1915A(a) and “dismiss
any or all of the claims it finds are legally frivolous or otherwise
subject to dismissal.”

They also request that trial be had in

Wichita, Kansas.
Mr. Long seeks damages as well as declaratory and injunctive
relief from defendants Hillsman and Bailey.
for his complaint, he alleges as follows.

As the factual basis
In May, June, and

December 2010, defendants wrote and published and caused to be
distributed

the

“defamatory

statement

that

the

plaintiff

committed a sex-related crime and was a ‘Sex Offender’.”

had
This

occurred even though Hillsman had access in May 2010 to Mr. Long’s
“rap sheet” in his Central File showing that he has never been

convicted of a sex crime and is not a sex offender, and both
defendants knew the information was not true.
that

as

a

result

of

defendants’

Plaintiff alleges

publishing

this

defamatory

information, he has suffered and will continue to suffer injury to
his reputation as well as mental distress and anguish.

Plaintiff

seeks damages and preliminary and permanent injunctive relief.

He

also seeks declaratory relief under Kansas law.
Mr. Long has filed a Motion to Remand this matter to the state
district court.

He alleges that defendants’ Notice of Removal is

deficient, and that defendants have failed to allege that they are
being sued for acts or omissions carried out pursuant to their
official duties or that any grounds for a federal defense exists.
Plaintiff further alleges that his complaint clearly alleges the
state torts of defamation and invasion of privacy.
The federal officer removal statute, 28 U.S.C. § 1442(a),
provides that a civil action commenced in a State court against any
officer of any agency of the United States sued in an official or
individual capacity “for any act under color of such office” may be
removed to the district court of the United States.
1442(a)(1).

28 U.S.C. §

However, “[o]nly state-court actions that originally

could have been filed in federal court may be removed to federal
court by defendant.”
386, 392 (1987).

See

Caterpillar Inc. v. Williams, 482 U.S.

In general, original jurisdiction is lacking

unless there is diversity of citizenship or a federal question.
Id.; Topeka Housing Authority v. Johnson, 404 F.3d 1245, 1248 (10th
Cir. 2005).

In Caterpillar, Inc., the United States Supreme Court

stated:
The presence or absence of federal-question jurisdiction
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is governed by the “well-pleaded complaint rule,” which
provides that federal jurisdiction exists only when a
federal question is presented on the face of the
plaintiff’s properly pleaded complaint.
See Gully v.
First National Bank, 299 U.S. 109, 112-113 (1936). The
rule makes the plaintiff the master of the claim; he or
she may avoid federal jurisdiction by exclusive reliance
on state law.
Id.

When the federal court lacks subject-matter jurisdiction over

a removed case, the court must remand the case to the state court.
See 28 U.S.C. § 1447(c); Topeka Housing Authority, 404 F.3d at 1247.
Mr. Long brought this tort action in state court.

In his

complaint, he has alleged no facts suggesting that defendants were
acting under color of their federal office.

He has not asserted

that he is suing defendants under either Bivens or the FTCA.

He

cites a state statute only.

The court has examined the Notice of

Removal filed by defendants.

It does not show that this court has

jurisdiction over plaintiff’s claims or that this matter arises
under federal law.

It does not indicate that a scope-of-employment

certification has issued.

Instead, defendants merely argue that

this court should screen the complaint and determine if there is any
federal basis for these claims. Plaintiff chose the state forum and
the jurisdictional basis for his claims, and correctly points out
that he has not alleged that defendants’ acts were taken in their
official capacities.
Motion for Remand.

Defendant has not responded to plaintiff’s
The court finds that plaintiff’s Motion to

Remand must be granted.

Because the motion to remand is granted,

the court declines to consider the merits of defendant’s motion for
screening and finds it moot.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s Motion to
Remand (Doc. 6) is granted.
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IT IS FURTHER ORDERED that defendant’s Motion for Screening by
this court under 28 U.S.C. § 1915A (Doc. 8) and plaintiff’s Motion
to Deem Individual Defendants Properly Before the Court for Service
(Doc. 10) are moot.
The case is remanded to the District Court of Leavenworth
County, Kansas.

A certified copy of the order of remand shall be

mailed by the clerk to the clerk of the State court.
IT IS SO ORDERED.
Dated this 12th day of April, 2011, at Topeka, Kansas.

s/Sam A. Crow
U. S. Senior District Judge

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