Foley v. Thompson
Filing
26
MEMORANDUM OPINION & ORDER: (1) The Plaintiff's Motion to Remand to State Court (Record No. 23 ) shall be DENIED; and (2) A telephonic conference is scheduled in this matter for WEDNESDAY, MAY 22, 2013, AT THE HOUR OF 10:00 A.M. Couns el shall be prepared to discuss the status of discovery and feasible dates for all remaining deadlines. Counsel shall access the conference by calling AT&T Teleconferencing at 1-877-336-1839; entering the access code 4162817 (followed by #); and when requested, entering the security code 1212 (followed by #). Signed by Magistrate Judge Edward B Atkins on 5/16/2013.(AKR)cc: COR, diary
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at FRANKFORT
CIVIL ACTION NO: 3:12-12-EBA
ROBERT FOLEY,
V.
PLAINTIFF,
MEMORANDUM
OPINION AND ORDER
LADONNA THOMPSON, Warden,
DEFENDANT.
**********
This matter is before the undersigned on Plaintiff Robert Foley’s Motion to Remand to
State Court. [Record No. 23]. The Plaintiff insists that because he is not pursuing a federal cause
of action, even though his claim is based solely on violations of the Eighth and Fourteenth
Amendments, that jurisdiction is not proper in this Court. [Record No. 23]. Defendant LaDonna
Thompson responded in opposition, asserting that even though the Plaintiff uses a state cause of
action, it is clear from the face of the complaint that he is really alleging federal causes of action
and trying to avoid federal jurisdiction by terming them as state causes of action. [Record No.
25]. For the reasons discussed below, the Plaintiff’s motion will be denied.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff Robert Foley was convicted in 1992 of two (2) counts of first degree murder in
Laurel County, Kentucky Circuit Court, and in 1994 of four (4) counts of first degree murder in
Madison County, Kentucky Circuit Court. See Foley v. Commonwealth, 306 S.W.3d 28, 29 (Ky.
2010); Foley v. Commonwealth, 953 S.W.2d 924, 928 (Ky. 1997). As a result, he is currently an
inmate at the Kentucky State Penitentiary under six (6) sentences of death. See Foley, 306
S.W.3d at 29, 29 n.1. Both convictions have been affirmed on direct and post-conviction review.1
The current action was filed in Franklin County, Kentucky Circuit Court on February 9,
2012 against Defendant LaDonna Thompson in her official capacity as the Commissioner of the
Kentucky Department of Corrections. [Record No. 1-2, at 1]. Foley seeks declaratory and
injunctive relief under KENTUCKY RULE
OF
CIVIL PROCEDURE 57 and 65.01, and KENTUCKY
REVISED STATUTE §§ 418.040 and 418.055 for alleged violations of Foley’s Eighth and
Fourteenth Amendment rights under the United States Constitution. [Record No. 1-2, ¶ 1].
Foley’s claims are based on the failure of the Kentucky Department of Corrections to obtain hip
replacement surgery for Foley since his February 2011 diagnosis with a degenerative right hip.
[Record No. 1-2, ¶¶ 16-17]. Foley alleges that the Kentucky Department of Corrections
recognizes that Foley is in immediate need of hip surgery and that his condition causes him
considerable pain, but has failed to take action to secure surgery for Foley. [Record No. 1-2, ¶¶
13-14, 17]. Foley seeks relief in the form of a declaratory judgment pronouncing that the
Kentucky Department of Corrections has failed to provide him with medical care necessary
under the Eighth and Fourteenth Amendments, and an order requiring the Department of
Corrections to “provide hip replacement surgery for Foley and to take the necessary steps to
ensure that the surgery takes place.” [Record No. 1-2, ¶¶ 23-39].
On March 14, 2012, Thompson removed the action from Franklin Circuit Court to the
United States District Court for the Eastern District of Kentucky under federal question
1
See for example: Direct review affirmances: 942 S.W.2d 876 (Ky. 1996), cert. denied by 522 U.S. 893 (1997); 953
S.W.2d 924, cert. denied by 523 U.S. 1053 (1998).
State post-conviction affirmances: 17 S.W.3d 878 (Ky. 2000), cert. denied by 531 U.S. 1055 (2000), overruled in
part on other grounds by Stopher v. Conliffe, 170 S.W.3d 307 (Ky. 2005); 2003 WL 21993756 (Ky. Aug. 21,
2003); 2009 WL 1110333 (Ky. April 23, 2009); 2010 WL 1005873 (Ky. March 18, 2010).
Federal post-conviction affirmances: Foley v. Parker, 488 F.3d 377 (6th Cir. 2007), cert. denied by Foley v.
Simpson, 553 U.S. 1068 (2008); Foley v. White, No. 6:00-cv-552-DCR, 2013 WL 990828 (E.D. Ky. March 12,
2013).
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jurisdiction of 28 U.S.C. §§ 1441-1446. [Record No. 1, at 1]. Foley filed a response, expressing
disapproval at the removal of the suit to federal court, on March 22, 2012. [Record No. 2].
However, Foley did not move the Court to remand the action to back to state court until April 22,
2013. [Record No. 23]. In his motion, Foley asserts that the complaint does not allege a violation
of and does not seek relief pursuant to federal law, instead seeking relief under state rules and
statutes. [Record Nos. 2; 23]. Thompson filed a response in opposition, asserting that, while the
complaint does not use a federal cause of action, it is clear from the face of the complaint that
Foley is alleging violations of federal law and federal causes of action. [Record No. 25]. Now
being fully briefed, the matter is ripe for consideration. [See Record No. 24].
II. LEGAL STANDARD
Federal subject matter jurisdiction is government by the well-pleaded complaint rule,
which dictates that federal question jurisdiction can only be established if a question of federal
law is apparent on the face of a properly pleaded complaint. Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987); see also Saffold v. Fortenberry, No. 2:97CV856-B-B, 1998 WL 527276, at
*1 (N. D. Miss. July 17, 1998). As the “the master of the claim,” a plaintiff “may avoid federal
jurisdiction by exclusive reliance on state law.” Caterpillar, 482 U.S. at 392. A complaint
pleaded under state law can still establish proper federal question jurisdiction where a
“substantial and disputed question of federal law is a ‘necessary element’ of one of the wellpleaded state claims.” Doe v. Corp. of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints, No. CV. 07-1499-PK, 2008 WL 4549075, at *3 (D.Or. Oct. 9, 2008) (quoting
Franchise Tax Bd. V. Constr. Laborers Vacation Trust, 463 U.S. 1, 13 (1983) (superseded by
statute on other grounds)). Jurisdiction is established if “a right or immunity created by the
Constitution or law of the United State [is] an element, and an essential one, of the plaintiff’s
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cause of action.” Gully v. First Nat’l Bank, 299 U.S. 109, 112 (1936). Ultimately, “[t]he question
is, does a state-law claim necessarily raise a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any congressionally
approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods. V.
Darue Eng’g & Mfg., 545 U.S. 308 314 (2005). However, “the assertion of a claim under a
federal statute [or federal constitutional provision] alone is sufficient to empower the District
Court to assume jurisdiction over the case.” Holland/Blue Streak v. Barthelemy, 849 F.2d 987,
989 (5th Cir. 1988) (internal quotation omitted) (citations omitted).
III. ANALYSIS
In his complaint, Foley raises his claims under Kentucky statutes and rules of procedure.
[See Record No. 1-2]. However, it is clear that the statutes and rules under which the claims are
raised are merely mechanisms for suing for any type of injunctive and declaratory relief. See KY.
REV. STAT. §§ 418.040; 418.055; KY. R. CIV. P. 57; 65.01; see also Record No. 1-2, ¶¶ 5-8.
Further, the complaint alleges violations of Foley’s constitutional rights under the United States
Constitution as the sole basis for relief. [Record No. 1-2, at ¶¶ 23-37]. In the claim for relief,
there is no mention of Foley’s rights under Kentucky’s laws or Constitution, and particularly
telling is that Foley only cites to federal case law and federal principles as a substantive basis for
relief. [Record No. 1-2, ¶¶ 23-37]. It is clear from the face of the complaint, therefore, that while
Foley uses Kentucky law as a mechanism for bringing his claim, the right that he is suing to
enforce is federally created and the violation of his federal rights is an essential and necessary
element of Foley’s claims.
Accordingly, federal jurisdiction is proper and remand is not
appropriate.
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Foley’s assertion that his reliance on state causes of action makes federal jurisdiction
inappropriate is misguided. The cause of action is important, but not determinative, in creating
jurisdiction. It is the substance of the claims and the asserted right or immunity that is most
decisive in determining jurisdiction. Further, while the causes of action may be created by state
law, Foley has clearly not relied exclusively on state law. If Foley had cited violations of his
rights under Kentucky’s statutes or constitution, there would be exclusive reliance on state law.
However, the only asserted violations are that of federal law, and therefore, Foley’s claim relies
heavily on federal, not state, law. Consequently, Foley’s complaint, on its face, establishes
federal jurisdiction and remand is not proper.
IV. CONCLUSION
Therefore, having considered the matter fully, and for the reasons stated above,
IT IS ORDERED AS FOLLOWS:
(1)
The Plaintiff’s Motion to Remand to State Court [Record No. 23] shall be
DENIED; and
(2)
A telephonic conference is scheduled in this matter for WEDNESDAY, MAY
22, 2013, AT THE HOUR OF 10:00 A.M.
Counsel shall be prepared to discuss the status of
discovery and feasible dates for all remaining deadlines. Counsel shall access the conference by
calling AT&T Teleconferencing at 1-877-336-1839; entering the access code 4162817 (followed
by #); and when requested, entering the security code 1212 (followed by #).
Signed May 16, 2013.
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