Gabaldon v. New Mexico Coalition to End Homelessness et al

Filing 25

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen re 13 MOTION to Dismiss for Lack of Jurisdiction filed by United States Department of Housing and Urban Development. Objections to R&R due by 6/13/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

DAVID A. GABALDON,
Plaintiff,
v.

CIV 17-0473 LH/KBM

NEW MEXICO COALITION TO END
HOMELESSNESS; “THE HOPE CENTER”;
“ST. MARTIN’S HOSPITALITY CENTER”;
GSL PROPERTIES, INC.; LAS BRISAS;
HUD DEPT. HOUSING AND URBAN
DEVELOPMENT,
Defendants.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(1) filed by United States Department of Housing and Urban Development
(HUD or United States) on May 4, 2017. Doc. 13. The Honorable C. LeRoy Hansen
referred this matter to me today, May 30, 2017, for a recommended disposition.
Doc. 24. For the reasons that follow, the Court recommends that Judge Hansen grant
the motion to dismiss because the pro se Plaintiff has failed to exhaust his
administrative remedies for his claim against the United States as required by the
Federal Torts Claim Act (FTCA), 28 U.S.C. § 2671-2680. The Court further
recommends that if Judge Hansen agrees with this recommendation and dismisses the
only claim that supported removal pursuant to 28 U.S.C. § 1442(a)(1), he remand the
remaining claims in this action back to state court for its consideration.

The Court first notes that Plaintiff has failed to respond to the United States’
Motion to Dismiss. See Doc. 19 (“Notice of Completion of Briefing”). 1 Pursuant to our
District’s Local Rules, “[t]he failure of a party to file and serve a response in opposition
to a motion within the time prescribed for doing so constitutes consent to grant the
motion.” D.N.M.LR-Civ. 7.1(b). Although this failure to timely respond can alone support
granting of the motion and dismissal of claims against the United States without
prejudice, the Court nonetheless considers the merits of the motion given that Plaintiff is
proceeding pro se.
Plaintiff originally filed this lawsuit on February 21, 2017, in Second Judicial
District Court in Bernalillo County. As was its right, the United States removed this
action to federal court because Plaintiff had named one of its agencies as a defendant:
(a) A civil action or criminal prosecution that is commenced in a State
court and that is against or directed to any of the following may be
removed by them to the district court of the United States for the district
and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any
person acting under that officer) of the United States or of any agency
thereof, in an 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 criminals or the collection of the revenue.
28 U.S.C. § 1442. Thus, all claims brought in the action, even those brought against the
other defendants that are not federal agencies, were removed to this federal court.
“Notably, § 1442 allows removal of the entire case, not just the claims against the
federal officer or agency.” Dixie Brewing Co. v. Dep't of Veterans Affairs, 2013 WL

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Defendant GSL (which apparently operates the Las Brisas Apartments) has also moved to dismiss
Plaintiff’s complaint, or, in the alternative, seeks a more definite statement of the claims brought against it.
Doc. 4, 21. The remaining defendants have also filed “Notices of Completion of Briefing” on their similar
motions filed in state court prior to removal. Docs. 20, 22, 23.

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6715921, at *5 (E.D. La. Dec. 18, 2013) (citing IMFC Prof'l Servs. of Fl., Inc. v. Latin
Am. Home Health, Inc., 676 F.2d 152, 158 (5th Cir.1982)).
As an initial matter, this Court takes note of Plaintiff’s pro se status. “[A] pro se
litigant’s pleadings are to be construed liberally and held to a less stringent standard
than formal pleadings drafted by lawyers.” Smith v. United States, 561 F.3d 1090, 1096
(10th Cir. 2009) (citations omitted). In Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991), the Tenth Circuit stated:
We believe that this rule means that if the court can reasonably read
the pleadings to state a valid claim on which the plaintiff could prevail, it
should do so despite the plaintiff’s failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.
Even so, the court “will not supply additional factual allegations to round out a plaintiff’s
complaint or to construct a legal theory on a plaintiff’s behalf.” Id.
Although the Complaint is far from a model of clarity, it appears that Plaintiff
Gabaldon “is attempting to assert claims in relation to his residency in an apartment and
interactions with various entities including Defendants identified in the caption.” Doc. 4
(Defendant GSL Properties’ Motion). As noted by the Government, “[t]hroughout his
Complaint, Plaintiff cites Title 24 of the Code of Federal Regulations, Housing and
Urban Development, alleging broad violations of those regulations by all of the
Defendants.” Doc. 13 at 1. For the source of all his claims, Plaintiff specifically states,
“Complaint: Tort”. Doc. 1-1 at 1 (Complaint).
The United States has granted certain waivers of its sovereign immunity from suit
for damages, and those limited waivers are set forth in the FTCA. As to tort claims
brought against the United States and its agencies, the FTCA requires the exhaustion of

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administrative remedies. In other words, an aggrieved person must present a claim for
damages against the United States to the appropriate federal agency before filing a
lawsuit in federal court; moreover, this exhaustion requirement is jurisdictional and
cannot be waived. Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270
(10th Cir. 1991). Here, Plaintiff fails to allege that he has met this requirement, and the
Government has submitted the unrebutted Declaration of HUD’s Regional Counsel that
Plaintiff Gabaldon “has not filed a claim for injury or damages with the U.S. Department
of Housing and Urban Development.” Doc. 13-1. Thus, this FTCA claim must be
dismissed without prejudice for failure to exhaust.
Furthermore, “[w]here a suit against a federal agency is properly removed but the
agency is then dismissed, Ԥ 1442(a)(1) through its creation of an ancillary jurisdiction,
confers discretion on the district court to decline to exercise continued jurisdiction.’”
Dixie Brewing Co., 2013 WL 6715921, at *13-14 (quoting IMFC Prof'l Servs. of Fl., Inc.,
676 F.2d at 156).
If the federal defendants are dismissed, the district court has a residual
ancillary jurisdiction over the state law claims against the nonfederal
defendant. The district court may, in its discretion, decline to exercise
this jurisdiction. If so, it must remand the case to state court as
“removed improvidently and without jurisdiction” under 28 U.S.C.
§ 1447(c). IFMC Professional Services, 676 F.2d at 160. The reason is
simple; if the federal court acting in removal jurisdiction determines that
federal jurisdiction does not exist, it remands rather than dismisses
because removal was “improvident.” The scope of the district court's
discretion, therefore, was between adjudicating the state law claims or
remanding them; it had no discretion to dismiss them.
Williams v. City of Atlanta, 794 F.2d 624, 628 (11th Cir. 1986). Given that this action
was only recently filed and that only state claims are raised against the remaining non-

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governmental defendants, the Court recommends to Judge Hansen that he remand
those claims back to Second Judicial District Court.
Wherefore,
IT IS HEREBY RECOMMENDED that the Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(1) filed by United States Department of Housing and Urban Development
(Doc. 13) be granted.
IT IS FURTHER RECOMMENDED that this action be remanded to Second
Judicial District Court for the State of New Mexico in Bernalillo County.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

_________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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