Varela v. The County of Rensselear et al

Filing 42

MEMORANDUM-DECISION and ORDER - That Varela's motion for remand (Dkt. No. 7) is DENIED. That Varela's motion for sanctions (Dkt. No. 13) is DENIED. That defendants' motion to dismiss (Dkt. No. 10) Rensselaer District Attorney Arthur Glass and the Public Defender is granted. That defendants' motion to dismiss (Dkt. No. 10) the individualy County Departments is granted. That defendants' motion to dismiss (Dkt. No. 10) is denied in all other respects. That the parties notify Magistrate Judge Homer in order to schedule further proceedings in accordance with this order. Signed by Judge Gary L. Sharpe on 9/30/2011. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
RAFAEL VARELA,
Plaintiff,

1:10-cv-1390
(GLS/DRH)

v.
COUNTY OF RENSSELAER, et al.,
Defendants.
_________________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
RAFAEL VARELA
Pro Se
450 Madison Street
Troy, NY 12180
FOR THE DEFENDANTS:
County of Rensselaer and Bailey1
Bailey, Kelleher Law Firm
Pine West Plaza 5
Suite 507
Washington Avenue Extension
Albany, NY 12205
City of Troy, Police Department

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AARON E. CONNOR, ESQ.
JOHN W. BAILEY, ESQ.

Including County of Rensselaer, Rensselaer County Probation Department,
Rensselaer County Jail, Rensselaer County Sheriff Department, Rensselaer County Public
Defender’s Office, Rensselaer County Department of Mental Health, Rensselaer County
Unified Services, Rensselaer County District Attorney’s Office, Arthur Glass, Esq., (collectively
“Rensselaer County defendants”), Bailey, Kelleher & Johnson, P.C. and John W. Bailey, Esq.,
(collectively “Bailey defendants”).

and Epstein
Corporation Counsel
City Hall
One Monument Square
Troy, NY 12180

CHARLES A. SARRIS, ESQ.

Hudson Mohawk Recovery Center
no appearance made
The Unified Court System
no appearance made
Anita Thayer
no appearance made
Walter Thayer & Mishler P.C.
no appearance made
Sgt. Kyra Garrigue
no appearance made
John Doe
no appearance made
Gary L. Sharpe
District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Rafael Varela filed this suit against the defendants in
New York State Supreme Court, Rensselaer County. On November 16,
2010, the defendants removed the case to this court pursuant to 28 U.S.C.

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§§ 1441 and 1446, invoking the court’s original subject matter jurisdiction
pursuant to 28 U.S.C. § 1331. Presently before the court are Varela’s
motions seeking remand and sanctions; and defendants’ motion to
dismiss.2 For the reasons that follow, Varela’s motions are denied and
defendants’ motion to dismiss is granted in part and denied in part.
II. Background
Plaintiff’s near-unintelligible pleadings makes it difficult for the court to
determine the basis of the lawsuit. The complaint names twenty-eight
defendants for a multitude of state and federal violations. In general,
Varela alleges that due to various arrests, he was illegally prosecuted and
detained in 2006, 2007, and 2008. He contends that these arrests caused
anguish and fear for his life.
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
established and will not be repeated here. For a full discussion of the
standard the court refers the parties to its decision in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
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Rensselaer County and Bailey defendants jointly filed the motion to dismiss.

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A.

Motion for Remand
On December 1, 2010, Varela filed a motion to remand. He asserts

two grounds in support of the motion. First, he contends that the removal
was defective because a copy of the removal notice was not provided to
him. Secondly, he claims that not all of the served defendants consented
to the removal. Varela’s contentions are without merit. In regards to the
first ground, the very fact that Varela has filed a motion to remand belies
his allegation that he was not provided a copy of the removal notice. Thus,
it is clear that Varela knew about the removal and has exercised his rights
accordingly.
Varela’s second contention disputing consent by all the defendants
is also without merit. Varela’s complaint seeks redress pursuant to 42
U.S.C. § 1983. Federal and state courts have concurrent jurisdiction over
suits brought pursuant to 42 U.S.C. § 1983. Haywood v. Drown, 129 S.Ct.
2108, 2111 (2009). Thus, “state courts as well as federal courts are
entrusted with providing a forum for the vindication of federal rights violated
by state or local officials acting under color of state law.” Id. at 2114.
Thus, consent by all the defendants is unnecessary.
Despite having concurrent jurisdiction, the issue still remains whether
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remand is warranted. Varela argues that remand to the state court is
proper. In opposition, the defendants insist that federal court is the
appropriate forum. There appears to be case law for both propositions.
See Ojudun v. Daffy’s Inc., No. 98 Civ. 6135, 2000 U.S. Dist. LEXIS 3585,
at *2 (S.D.N.Y. Feb. 9, 2000) (collecting cases). In the Ojudun case,
Southern District Court Judge Griesa ultimately accepted the removal.
This court agrees that the better view is to accept the removal. Under the
statute, a case may be removed when the federal district court has “original
jurisdiction.” 28 U.S.C. §1441(a). A federal district court has original
jurisdiction when a case asserts a federal statutory cause of action. Here,
Varela’s case asserts a federal statutory cause of action, thus, the court
has original jurisdiction. Accordingly, the motion for remand is denied.
B.

Motion to dismiss
1.

Immunity

Varela asserts claims against the district attorney and the public
defender. “It is . . . well established that ‘a state prosecuting attorney who
acted within the scope of his duties in initiating and pursuing a criminal
prosecution’ . . . ‘is immune from a civil suit for damages under § 1983.’”
Shmueli v. City of N.Y., 424 F.3d 231, 236 (2d Cir. 2005) (quoting Imbler v.
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Pachtman, 424 U.S. 409, 410, 431 (1976)). This immunity “protects a
prosecutor . . . for virtually all acts, regardless of motivation, associated
with his function as an advocate.” Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.
1994). “In order to state a claim under [42 U.S.C.] § 1983, a plaintiff must
allege that he was injured by either a state actor or a private party acting
under color of state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
323 (2d Cir. 2002) (citation omitted). However, a “public defender does not
act under color of state law when performing a lawyer’s traditional functions
as counsel to a defendant in a criminal proceeding.” Polk County v.
Dodson, 454 U.S. 312, 325 (1981).
Since it appears that Varela is suing District Attorney Arthur Glass,
and the Public Defender for acts within the scope of their duties, they are
immune. Accordingly, to the extent that Varela is suing District Attorney
Arthur Glass and the Public Defender, they are dismissed from suit.
2.

Other Named Parties

To the extent that Varela names several Rensselaer County
Departments, as defendants, the proper party is Rensselaer County.
Accordingly, the individual County Departments are dismissed.
3.

Bailey defendants
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Varela appears to be suing the Bailey defendants for intentional
infliction of emotional distress. “The state law tort of intentional infliction of
emotional distress has four elements: (1) extreme and outrageous conduct,
(2) intent to cause severe emotional distress, (3) a causal connection
between the conduct and the injury, and (4) severe emotional distress.”
Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996). In general,
“New York sets a high threshold for conduct that is ‘extreme and
outrageous’ enough to constitute intentional infliction of emotional distress.”
Id. at 790. While not entirely clear, at this juncture, this cause of action
survives.
4.

Equal Protection Clause

Defendants contend that Varela has failed to plead a violation of the
Equal Protection Clause. As this court has already noted, Varela’s
complaint is not a model of clarity, however, at this juncture, this cause of
action survives.
C.

Motion for Sanctions
Varela’s motion for sanctions against the defendants is unwarranted

and denied.
V. Conclusion
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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Varela’s motion for remand (Dkt. No. 7) is
DENIED; and it is further
ORDERED that Varela’s motion for sanctions (Dkt. No. 13) is
DENIED; and it is further
ORDERED that defendants’ motion to dismiss Rensselaer District
Attorney Arthur Glass and the Public Defender is granted; and it is further
ORDERED that defendants’ motion to dismiss the individual County
Departments is granted; and it is further
ORDERED that defendants’ motion to dismiss is denied in all other
respects; and it is further
ORDERED that the parties notify Magistrate Judge Homer in order to
schedule further proceedings in accordance with this order; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 30, 2011
Albany, New York

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