United States District Court, N.D. West Virginia, Clarksburg
ORDER ADOPTING THE REPORT AND RECOMMENDATION CONCERNING
MOTION FOR REMAND [DKT. NO. 53], REJECTING IN PART AND
ADOPTING IN PART THE REPORT AND RECOMMENDATION CONCERNING
MOTION TO DISMISS [DKT. NO. 38], DENYING MOTION FOR REMAND
[DKT. NO. 50], GRANTING MOTION TO DISMISS [DKT. NO. 8], AND
STRIKING THE CASE FROM THE DOCKET
S. KLEEH, UNITED STATES DISTRICT JUDGE
se Plaintiffs, Alajuan Robinson and Reggie Robinson El
(“Plaintiffs”), filed a “Civil-Human Rights
Complaint with a Demand for Jury Trial”
(“Complaint”) in the Circuit Court of Monongalia
County, West Virginia on July 16, 2018 [Dkt. No. 1-1]. On
August 7, 2018, Defendants, Sgt. Pintez and Sgt. J.D. Morgan
(“Defendants”), filed a notice of removal stating
that because the action was brought pursuant to 42 U.S.C.
§ 1983, the United States District Court had original
jurisdiction over the case and supplemental jurisdiction over
any state law allegations. [Dkt. No. 1].
Plaintiffs are pro se, the matter is before
Magistrate Judge Michael J. Aloi pursuant to the August 8,
2018, Order of Referral [Dkt. No. 3] entered by Senior United
States District Judge Irene M. Keeley. On August 14,
2018, Defendants filed a Motion to Dismiss [Dkt. No.
8], to which Plaintiffs responded on September 6, 2018 [Dkt.
No. 18] after the issuance of a Roseboro Notice on
August 23, 2018 [Dkt. No. 14]. On December 26, 2018,
Plaintiffs filed a Notice of Filing Motion for Remand and
Motion for Remand [Dkt. No. 50], to which Defendants
responded in opposition on January 7, 2019 [Dkt. No. 51]. The
magistrate judge issued a separate Report and Recommendation
(“R&R”) for the Motion to Dismiss
[Dkt. No. 38], and Motion for Remand [Dkt. No. 53].
Plaintiffs filed objections to each R&R [Dkt. Nos. 40 and
56], and the matters are now ripe for adjudication.
Standard of Review
magistrate judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
the Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of an R&R to
which specific objection is made. Additionally, the Court may
“accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
Motion for Remand
removed Plaintiffs' action to this Court on August 7,
2018, because Plaintiffs' claims were brought pursuant to
42 U.S.C. § 1983 [Dkt. No. 1]. Defendants assert that
the Court has original jurisdiction over Plaintiffs'
constitutional claims and supplemental jurisdiction over any
state law claims [Id.]. On December 26, 2018,
Plaintiffs filed a Notice of Filing Motion for Remand and
Motion for Remand [Dkt. No. 50] making six arguments for
the case to be returned to Monongalia Circuit Court. As
summarized in the R&R [Dkt. No. 53], the arguments for
remand include: 1) the United States District Court lacks
subject matter jurisdiction; 2) the Notice of Removal is
defective; 3) a legal presumption against removal exists
which has not been overcome; 4) the Monongalia County Circuit
Court is capable of handling the state and federal claims
raised by Plaintiffs; 5) no diversity jurisdiction exists;
and 6) Defendants cannot enforce a right within the
jurisdiction [Dkt. No. 50 at 1-2]. The R&R
recommends that the motion for remand be denied [Dkt. No. 53
at 1], and the Court agrees.
removal statute, 28 U.S.C. § 1441, allows a state court
defendant to remove a case to a federal district court if the
state court action could have originally been filed there.
See Darcangelo v. Verizon Commc'ns, Inc., 292
F.3d 181, 186 (4th Cir. 2002). Federal courts are courts of
limited jurisdiction, and a district court is charged with
ensuring that all cases before it are properly subject to
such jurisdiction. Kokkonen v. Guardian Life In. Co. of
America, 511 U.S. 375, 377 (1994); In re Bulldog
Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). The
burden is on the removing defendant to establish subject
matter jurisdiction. Mulcahey v. Columbia Organic
Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
a case can be filed in a federal district court only if there
is diversity of citizenship under 28 U.S.C. § 1332, or
if there is federal question jurisdiction under 28 U.S.C.
§ 1331. “The presence or absence of
federal-question jurisdiction is governed by the
‘well-pleaded complaint rule,' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint. The rule makes the plaintiff the master of the
claim; he or she may avoid federal jurisdiction by exclusive
reliance on state law.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)(internal citation
omitted); see Harless v. CSX Hotels, Inc., 389 F.3d
444, 450 (4th Cir. 2004).
the Complaint alleges causes of action under the Fourth and
Fifth Amendments of the United States Constitution and
Article II, Section 10 of the West Virginia Constitution in
relation to a police traffic stop that occurred on June 13,
2017, in Morgantown, West Virginia [Dkt. No. 53 at 1-2]. The
Complaint states in its first paragraph that it is an action
filed pursuant to 42 U.S.C. § 1983 [Dkt. No. 1-1]. While
state courts have concurrent jurisdiction over claims brought
under 42 U.S.C. § 1983, Hutchinson v. City of
Huntington, 479 S.E.2d 649 ( W.Va. 1996), that fact
alone is insufficient to prohibit removal. Plaintiffs'
pleading alleges claims over which this Court has both
original and supplemental jurisdiction.
Court agrees with the magistrate judge's recommendation
and FINDS that there is federal question
jurisdiction based on the face of the Complaint. Because the
state law claim, alleging a violation of Article III, Section
10 of the West Virginia Constitution, stems from the same
conduct described in Plaintiffs' federal constitutional
claims, the Court FINDS that it has
supplemental jurisdiction over the state law claim under 28
U.S.C. § 1367. The Court ADOPTS the
R&R [Dkt. No. 53] as to the Plaintiffs' Motion
for Remand [Dkt. No. 50], and the motion is
Motion to Dismiss
R&R addressing Defendants' motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
magistrate judge recommends that the Court dismiss the
specific monetary amount pled by Plaintiffs in the Complaint,
the duplicate Fourth Amendment claim in the second cause of
action, and the § 1983 claims with regard to Defendants
Pintez and Morgan in their official capacities [Dkt. No. 38
at 1]. The R&R further recommends that the motion to
dismiss be denied with regard to the § 1983 claims
brought against Defendants Pintez and Morgan in their