NOBREGA v. YORK COUNTY SHERIFF et al
REPORT AND RECOMMENDED DECISION re 4 MOTION to Dismiss filed by MAINE DEPARTMENT OF CORRECTIONS, 5 OBJECTION filed by DOMINGUS NOBREGA, and 7 MOTION to Remand to State Court filed by DOMINGUS NOBREGA. Objections to R&R due by 11/30/2020. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
YORK COUNTY SHERIFF, et al.,
RECOMMENDED DECISION ON MOTION TO REMAND, MOTION TO
DISMISS, AND OBJECTION TO NOTICE OF REMOVAL
In this action, Plaintiff, an inmate at the York County Jail, alleges that Defendants
violated his rights under the United States Constitution and the Maine Constitution.
Plaintiff has joined as defendants the York County Sheriff, jail administrators,1 the chaplain
at the jail (collectively, the York County Defendants), and the Maine Department of
This matter is before the Court on Plaintiff’s objection to Defendant’s Notice of
Removal (Objection, ECF No. 5.), Plaintiff’s motion to remand (ECF No. 7), and
Defendant MDOC’s motion to dismiss. (ECF No. 4.). Following a review of the pleadings
and after consideration of the parties’ arguments, I recommend that the Court overrule
Plaintiff’s objection to the notice of removal, deny without prejudice Plaintiff’s motion to
remand, and grant Defendant MDOC’s motion to dismiss.
Although Plaintiff filed suit against “Jail Administrators,” the summons for the jail administrators was
apparently served on the Maine Department of Corrections.
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Plaintiff originally filed this action in the Maine Superior Court (York County). In
his complaint, Plaintiff alleges that his “U.S. Constitutional Right of the 1st Amendment –
Freedom to Practice his Jewish Religion” and his rights under two sections of the Maine
Constitution were violated. (Complaint, ECF No. 3-2.) In response to the complaint,
Defendant MDOC filed a motion to dismiss pursuant to M.R. Civ. P. 12(b)(6), arguing that
the complaint “does not contain any allegations against MDOC and thus fails to state a
claim against MDOC.” (ECF No. 4.) The remaining defendants filed a Notice of Removal
to this Court based on federal question jurisdiction pursuant to 28 U.S.C. § 1331. (Notice
of Removal, ECF No. 1.)
Plaintiff objects to the Notice of Removal, asserting that the defendants violated his
“Maine [constitutional] rights” and his “Maine Civil Rights,” and suggesting that he does
seek relief under federal law. (Objection at 2-3.) Plaintiff later filed a document entitled
“Affidavit & Withdraw from this Court,” which was docketed as a motion to remand.
(Motion to Remand, ECF No. 7.) In that motion, Plaintiff states that he is not asserting any
violation of his First Amendment rights under the U.S. Constitution; rather, he maintains
that he is asserting violations of his rights only under the Maine Constitution. (Motion at
3-4.) In his reply memorandum in support of his motion to remand, Plaintiff asserts that
he is “only claiming” violations of his Maine constitutional rights and that “there is nothing
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federal being claimed at this time.”2 (Reply at 3, ECF No. 10.) The York County
Defendants contend that, absent either an amended complaint expressly removing all
federal claims or an Order from this Court dismissing any claims arising under the United
States Constitution, this Court should maintain jurisdiction over this action given that
Plaintiff’s complaint asserts a federal constitutional violation. (Response to Objection,
ECF No. 6; Response to Motion to Remand, ECF No. 9.)
Plaintiff’s Objection to Removal and Motion to Remand
“The burden of establishing federal jurisdiction is upon the party who removed the
case to federal court.” Me. Mun. Ass’n v. Mayhew, 64 F. Supp. 3d 251, 263 (D. Me. 2014).
“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized
by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). “[R]emoval
of an action from state court to federal court is proper only if the federal court has original
jurisdiction.” Mayhew, 64 F. Supp. 3d at 263; see 28 U.S.C. § 1441(a). Under federal
question jurisdiction, federal district courts “have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
“The presence or absence of federal-question jurisdiction is governed by the ‘wellpleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
Plaintiff filed a document entitled “Motion to Denounce & Dismisses Claims of 1st Amend., Federal Law
in Complaint,” which document the court construed and docketed as a reply in support of Plaintiff’s motion
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question is presented on the face of the plaintiff's properly pleaded complaint.”
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). Accordingly, “a court is to ask
whether the plaintiff's claim to relief rests upon a federal right, and the court is to look only
to plaintiff's complaint to find the answer.’" Rossello-Gonzalez v. Calderon-Serra, 398
F.3d 1, 10 (1st Cir. 2004) (quoting Hernandez-Agosto v. Romero-Barcelo, 748 F.2d 1, 2
(1st Cir. 1984) (emphasis in original); see Ortiz-Bonilla v. Federacion de Ajedrez de Puerto
Rico, Inc., 734 F.3d 28, 34 (1st Cir. 2013) (“The jurisdictional question is determined from
what appears on the plaintiff's claim, without reference to any other pleadings.”).
Therefore, “[w]here a complaint ‘is so drawn as to seek recovery directly under the
Constitution or laws of the United States,’ the federal court must entertain the suit.” OrtizBonilla, 734 F.3d at 34 (quoting Bell v. Hood, 327 U.S. 678, 681 (1946)). “It is immaterial
that a claimant in retrospect views [his] federal claims as surplus, or after removal, moves
to strike the federal claims. The plaintiff is the ‘master of the claim; he or she may avoid
federal jurisdiction by exclusive reliance on state law.’" Ortiz-Bonilla, 734 F.3d at 36
(citation omitted) (quoting Caterpillar, 482 U.S. at 392). Further, "[a] federal court that
exercises federal question jurisdiction over a single claim may also assert supplemental
jurisdiction over all state-law claims that arise from the same nucleus of operative facts."
BIW Deceived v. Local S6, Indus. Union of Marine & Shipbldg. Workers of Am., 132 F.3d
824, 833 (1st Cir. 1997); see 28 U.S.C. § 1367(a).
Here, Plaintiff asserts a federal question, alleging that Defendants violated his First
Amendment rights under the United States Constitution. The York County Defendants,
therefore, have demonstrated that the Court has federal question jurisdiction over the
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Plaintiff’s claim and that removal was proper. See 28 U.S.C. §§ 1331, 1441(a); Mayhew,
64 F. Supp. 3d at 263. Accordingly, Plaintiff’s objection to the removal and Plaintiff’s
motion to remand fail.
MDOC Motion to Dismiss
Defendant MDOC moves to dismiss the claims against it, arguing that Plaintiff’s
complaint “does not contain any allegations against MDOC” and does not name MDOC as
a party. See Fed. R. Civ. P. 12(b)(6). (ECF No. 4.)
“In ruling on a motion to dismiss under Rule 12(b)(6), a court ‘must assume the
truth of all well-plead facts and give the plaintiffs the benefit of all reasonable inferences
therefrom.’" Blanco v. Bath Iron Works, Corp., 802 F. Supp. 2d 215, 221 (D. Me. 2011)
(quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). “[T]o survive
a motion to dismiss, plaintiff must allege sufficient facts to show that he has a plausible
entitlement to relief.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009) (citation
Plaintiff’s complaint does not reference the MDOC, nor does it allege any “facts to
show that he has a plausible entitlement to relief,” id., against the MDOC. In fact, in his
reply in support of his motion to remand, Plaintiff asserts that any claims against MDOC
should be “removed” because Plaintiff did “not bring [an] action upon MDOC.”
(Objection at 4, ECF No. 5.) Defendant MDOC, therefore, should be dismissed.
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Based on the foregoing analysis, I recommend the Court grant Defendant MDOC’s
motion to dismiss. I also recommend the Court overrule Plaintiff’s objection to removal
and deny without prejudice Plaintiff’s motion to remand.
I further recommend the Court order that if Plaintiff does not want to assert a federal
claim, Plaintiff shall file a motion to amend his complaint, with a proposed amended
complaint, 3 within 21 days of the date of the Court’s order on this recommended decision.4
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 16th day of November, 2020.
See Bernard v. Town of Lebanon, No. 2:16-cv-00042-JAW, 2017 WL 1232406, at * 7 (D. Me. Apr. 3,
2017) (“[A] plaintiff seeking leave to amend a complaint should file a separate motion, which should
include as an exhibit the proposed amended complaint.”).
A motion to amend the complaint rather than a motion to dismiss is appropriate. Federal Rule of Civil
Procedure 41, which governs a plaintiff’s ability to dismiss an action, has been construed to “only permit
complete dismissal of an ‘action,’ not partial dismissal of ‘fewer than all the claims.’” Featherston v.
District of Columbia, 910 F. Supp. 2d 1, 11 (D.D.C. 2011). See also Hells Canyon Preservation Council
v. U.S. Forest Service, 403 F.3d 683, 687 – 90 (9th Cir. 2005) (plaintiff cannot dismiss even with court
approval fewer than all claims under Rule 41(a)(2)); Sudnick v. Dep’t of Defense, 474 F. Supp. 2d 91, 95
n.3 (D.D.C. 2007) (Rule 41 “cannot be invoked to eliminate ‘fewer than all of the claims against any
particular defendant’” (quoting 8 Moore’s Federal Practice § 41.21 (3d ed. 1997)).
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