Peterson v. Volunteers of America of Greater New Orleans, Inc., et al

Filing 15

ORDER AND REASONS granting 6 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 2/22/2017. (Attachments: # 1 Remand Letter) (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARCIA PETERSON

CIVIL ACTION

V.

NO. 16-17611

VOLUNTEERS OF AMERICA
OF GREATER NEW ORLEANS, INC.,
ABC INSURANCE COMPANY, ROBERT
YOUNG, AND AKANJI OLUBENGA

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion to remand. For the
following reasons, the motion is GRANTED.
Background
The

plaintiff

was

a

resident

at

a

Residential

Re-Entry

Facility (Halfway House) run by Volunteers of America of Greater
New Orleans, Inc. (VOA of GNO) from September 2015 to February
2016. VOA of GNO contracted with the Federal Bureau of Prisons
(BOP) to operate the Halfway House where federal prisoners reside
before completing his or her term of imprisonment.
The plaintiff alleges that while a resident of the Halfway
House she was subjected to repeated incidents of sexual harassment,
verbal abuse, and retaliation by the onsite house manager, Robert
Young. For contested reasons, the plaintiff spent the majority of
her time at the Halfway House and did not leave during normal
working hours for a job like most of the residents did. The
plaintiff broadly states that she was required to remain on site
during the day while the defendant alleges that because of the
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plaintiff’s age (62 years old), the Halfway House did not require
her to have a job. Instead of having a job and giving a portion of
her paycheck to the Halfway House for residential fees, she gave
a portion of the benefits she received from the government every
month.
In

her

complaint

originally

filed

in

state

court,

the

plaintiff alleges that most of the time she was the only female
who was at the Halfway House during normal working hours. This
situation allegedly led to ongoing abuse and harassment by Young,
a defendant in this case. After finally learning of her rights to
be free from harassment, the plaintiff attempted to, and in some
instances

did,

submit

complaints

about

the

harassment

Young

committed. The plaintiff claims that in retaliation for reporting
her harassment, Young subjected her to further verbal abuse and
harassment as well as harassment by the director of operations at
the Halfway House, Akanji Olubenga. To support her state law
claims,

the

plaintiff

references

and

incorporates

specific

standards for community confinement facilities, which she alleges
the defendants violated; these standards were promulgated by the
Department of Justice pursuant to the Prison Rape Elimination Act
(PREA). The plaintiff alleges that because of these violations,
she suffered from, and continues to suffer from, severe posttraumatic stress, fear, anxiety, and depression.

2

The defendant removed the lawsuit to this Court and asserted
jurisdiction under 28 U.S.C. §§ 1331 and 1442. The Court considers
the merits of each jurisdictional basis in turn.
I.

Jurisdiction Under 28 U.S.C. § 1331
A.

A defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the
action. See 28 U.S.C. § 1441(a). The removing party bears the
burden of showing that federal jurisdiction exists. See Allen v.
R&H Oil & Gas, Co., 63 F.3d 1326, 1355 (5th Cir. 1995). In assessing
whether

removal

is

appropriate,

the

Court

is

guided

by

the

principle, grounded in notions of comity and the recognition that
federal courts are courts of limited jurisdiction, that removal
statutes should be strictly construed. See, e.g., Manguno v.
Prudential Prop. & Gas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002). Though the Court must remand the case to state court if at
any time before final judgment it appears that it lacks subject
matter jurisdiction, the Court’s jurisdiction is fixed as of the
time of removal. See 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc.,
101 F.3d 448, 456 (5th Cir. 1996).
B.
The plaintiff first contends that VOA of GNO’s removal to
this Court under § 1331 is improper because her petition does not
state a claim arising under federal law. The plaintiff maintains
3

that her petition does not allege that defendants Olubenga and
Young were acting under a color of law, such that the claim could
be

construed

as

one

under

federal

law.

Most

pointedly,

and

importantly, the plaintiff asserts that her state court petition
could not have alleged a federal cause of action because PREA
violations do not grant prisoners a private cause of action.
The defendant responds that the plaintiff necessarily states
a federal law cause of action in her petition because she was in
the custody of the Federal Bureau of Prisons for committing a
federal crime at the time of the alleged conduct. Further, the
defendant

argues

that

the

plaintiff’s

allegations

require

a

consideration of federal law; namely, whether the alleged actions
violated PREA standards, which are promulgated by the federal
government.

Therefore,

the

defendant

contends

this

Court

has

jurisdiction over the plaintiff’s claims.
C.
This Court does not have jurisdiction under 28 U.S.C. § 1331,
as the defendant argues. “[C]ourts [that have] address[ed] this
issue have found that the PREA does not establish a private cause
of action for allegations of prison rape.” Krieg v. Steel, 599
Fed. App’x 231, 232 (5th Cir. 2015); see also Diamond v. Allen,
No. 7:14-CV-124, 2014 WL 6461730, at *4 (M.D. Ga. Nov. 17, 2014);

4

Amaker

v.

Fischer,

No.

10-CV-0977,

2014

WL

4772202,

at

*14

(W.D.N.Y. Sept. 24, 2014). 1
Additionally, the defendant contends that the plaintiff’s
case falls under a special category of cases where the “federal
issue

is

(1)

necessarily

raised,

(2)

actually

disputed,

(3)

substantial, and (4) capable of resolution in federal court without
disrupting the federal-state balance approved by Congress. Grable
& Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308,
313-14 (2005). “However, a claim does not arise under the law of
the United States pursuant to . . . section 1331 . . . if the
relief sought is based entirely upon a state cause of action in
which regulations established by federal statute are used merely
as further evidence of the right to recover under state law.” Till
v. Unifirst Fed. Sav. & Loan Ass’n, 653 F.2d 152, n.2 (5th Cir.
1981).
Here,

the

plaintiff

invokes

standards

established

under

federal law, namely PREA, as a grounds for recovery under Louisiana
state law. This is precisely the situation the Fifth Circuit
pointed to as one that does not give rise to federal jurisdiction
merely by referencing a federal law as support to recover under
Louisiana law. See id. (explaining that a remedy that specifically

1

The Fifth Circuit has additionally stated that any claim raised
under PREA should properly be dismissed as frivolous. Krieg, 599
Fed. App’x at 233.
5

exists

under

a

federal

law

establishes

federal

jurisdiction

because it goes beyond a mere assertion to support a state law
claim). The plaintiff’s claims here do not allege, and do not
establish, a private right of action under PREA. Without crossing
the threshold inquiry of whether a private cause of action exists
under federal law, the defendant fails to carry its burden to
establish federal jurisdiction under § 1331. See id. 2
II.

Jurisdiction Under 28 U.S.C. § 1442

The Federal Officer Removal Statute, 28 U.S.C. § 1442, permits
the removal of any civil or criminal action brought in state court
when the defendant in the matter is:
The United States or any agency thereof or any
officer (or any person acting under that officer) of the
United States or any agency thereof, in any official or
individual capacity, for or relating to any act under
color of such office or on account of any right, title
or authority claimed under any Act of Congress for the
apprehension or punishment of criminal or the collection
of the revenue.
29 U.S.C. § 1442(a)(1). The Fifth Circuit has recognized that the
purpose of removal pursuant to this statute is to “ensure a federal
forum in any case where a federal official is entitled to raise a
defense arising out of his official duties,” and that “this right
is not to be frustrated by a grudgingly narrow interpretation of

2

The Court need not consider each of the four Grable factors
because without a private cause of action under PREA, the defendant
cannot carry its burden to establish a federal question for this
Court.
6

the removal statute.” Winters v. Diamond Shamrock Chem. Co., 149
F.3d 387, 398 (5th Cir. 1998). The removing defendant has the
burden of establishing the existence of federal jurisdiction. Id.
Removal under § 1442(a)(1) is proper only when the defendant: (1)
is a “person” within the meaning of the statute, (2) who acted
under color of federal authority when he committed the acts that
allegedly led to the plaintiff’s injuries, and (3) has a “colorable
federal defense.” Mesa v. California, 489 U.S. 121, 131-32 (1989);
Winters, 149 F.3d at 398.
The plaintiff contends that remand is proper because the
defendant does not carry its burden to support removal under the
Federal Officer Removal statute. The plaintiff urges that the
defendant fails to provide affidavits to support its contention
that it and its agents acted under the color of law, and that in
its answer, the defendant alleges no colorable federal defense.
The Court agrees.
A. Person under § 1442(a)(1)
Corporate entities may qualify as persons under 28 U.S.C. §
1442. Winters, 149 F.3d at 398. At all relevant times, VOA of GNO
was a corporation. If the contract between VOA of GNO and the
Federal Bureau of Prisons qualifies as a governmental contract,
VOA

of

GNO

would

rightfully

be

a

“person”

because

it

is

a

corporation and § 1442 provides that a corporation may qualify as

7

a person. As such, the Court’s determination does not hinge on
this factor.
B. Federal Direction and Causal Nexus
To satisfy the second prong of the analysis, a defendant must
“demonstrate that [he] acted pursuant to a federal officer’s
directions and that a causal nexus exists between the defendant[’s]
actions

under

color

of

federal

office

and

the

plaintiff[’s]

claims.” Dupre v. Todd Shipyards Corp., No. 11-2097, 2011 WL
4551439 (E.D. La. Sept. 29, 2011) (Zainey, J.). Here, the plaintiff
claims that VOA of GNO does not carry its burden to establish it
acted under the color law. First, the plaintiff contends that the
defendants

submit

no

affidavit

or

contract

establishing

a

relationship between the defendant and the federal government that
suffice as grounds upon which the defendant could have “acted
under” a federal officer. Next, the plaintiff argues that the
defendant

officers

did

not

act

under

federal

direction

when

allegedly harassing and retaliating against the plaintiff. In sum,
the plaintiff urges that the defendant fails to identify the
specific federal direction it was acting under when the conduct
complained of occurred. Because the defendant fails to bolster its
position with any legal support, the plaintiff contends that
removal was improper; a blanket statement alleging that the actions
occurred

under

the

general

auspices

8

of

federal

direction

is

insufficient

to

support

§

1442(a)(1)

removal.

The

Court

now

considers whether VOA of GNO carries its burden.
In Laurent v. City of New Orleans, the court held that the
defendant carried its burden to establish a nexus when it provided
the court with “documented evidence regarding the [government’s]
oversight.” No. 14-2022, 2014 WL 5410654, *3 (E.D. La. Oct. 23,
2014) (Barbier, J.). There, the defendants also submitted an
affidavit of its federal officers attesting to the government’s
oversight and final authority over all of the work the defendants
completed under its government contract. Id. Laurent is of no help
here.
In a case in which removal was upheld, the defendant had
contracted

with

the

government

for

sewerage

and

water

construction. Crutchfield v. Sewerage & Water Bd. Of New Orleans,
No. 13-4801, 2015 WL 1281663, *2-3 (E.D. La. Apr. 20, 2015)
(Feldman, J.). A federal direction and causal nexus existed in
Crutchfield because the contractor’s project was funded entirely
by

the

federal

exercised

direct

government,
and

and

detailed

the

Army

control

Corps

over

the

of

Engineers

defendant’s

construction work. Id. at *2. The contractor submitted testimony
from its project manager, who explained that the Corps had to
approve of all work before it began, and the Corps’ personnel
monitored the daily construction activities. Id.; see also C.R.
Pittman Const. Co., v. Parson and Sanderson, Inc., No. 10-1027,
9

2010 WL 3418240 (E.D. La. Aug. 24, 2010) (Lemelle, J.) (upholding
removal where the contract with the Corps required the Corps to
occupy and staff a field office that inspected equipment and work).
If

the

defendant

“only

establishes

that

it

acted

under

‘general auspices of federal direction,’ it does not qualify under
the statute.” Rizzuto v. Bianchini, No. 6-6883, 2006 WL 3332832,
*5 (E.D. La. Nov. 14, 2006) (Africk, J.) (quoting Green v. Aetna
U.S. Healthcare, Inc., No. 00-1292, 2000 WL 1229226, *1 (N.D. Cal.
Aug.

18,

defendant

2000).

without

was

Rizzuto

subject

asserting

that

held
to
the

that

mere

comprehensive
federal

allegations
federal

government

that

the

regulations,
directed

the

defendant to take the specific actions in question, failed to
establish a nexus between the federal regulation and the specific
conduct on which the plaintiff based her claim. Id.
The common thread and essential component in this Court’s
analysis of this factor is that the defendant must furnish clear
evidence to support a finding of governmental control. As noted
above, an affidavit from an agent of the defendant explaining the
government’s oversight and authority over the actions giving rise
to the claim is sufficient. Here, VOA of GNO makes mere generic
statements regarding the federal government’s control over its
facility and workers; the only evidence submitted in support is a
“Statement of Work” handbook presumably furnished by the BOP to
VOA of GNO. The handbook contains provisions explaining certain
10

hiring and vetting practices for employees working with residents
at the Halfway House. However, there is no support to show whether
there is continuous oversight, approval, and inspection over the
center and its employees, and whether the government, through the
BOP, created or approved the actions allegedly committed by VOA of
GNO’s agents against the plaintiff.
The defendant fails to carry its burden. VOA of GNO merely
“establishes that it acted under general auspices of federal
direction,”

and,

therefore,

“it

does

not

qualify

under

the

statute.” Rizzuto, 2006 WL 3332832, at *5 (internal quotations
omitted).
C. Colorable Federal Defense
A motion to remand is not the proper mechanism by which to
litigate a defendant’s defense. Winters, 149 F.3d at 387; Laurent,
2014 WL 5410654. To show removal is proper, VOA of GNO need not
prove

an

asserted

federal

defense;

it

must

assert

only

its

colorable applicability to the claims. VOA of GNO enumerates at
least 10 defenses in its answer to the plaintiff’s complaint.
Courts find a colorable federal defense and uphold removal
under §1442 when a defendant invokes the contractor immunity
defense. Winters, 149 F.3d at 401; Crutchfield, 2015 WL 1781663,
at *3; Laurent, 2014 WL 54110654, at *4. Jurisdiction under § 1442
fails because the Court finds that the defendants have wholly
failed to establish conduct under the color of federal. The Court
11

need not further interpret VOA of GNO’s many defenses to determine
whether one can be construed as a colorable federal defense.
Moreover,

VOA

of

GNO

fails

to

specifically

invoke

a

federal

contractor immunity defense, both in its answer and in its briefing
to the Court for this motion.
V.
Accordingly, IT IS ORDERED: that the plaintiff’s motion to
remand is hereby GRANTED and the case is REMANDED to Civil District
Court for the Parish of Orleans.

New Orleans, Louisiana, February 22, 2017

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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