Bradford v. Harding, Civ. No. 12935.

• Decision Date: 14 November 1952
• Docket Number: Civ. No. 12935.
• Citation: 108 F. Supp. 338
• Parties: BRADFORD v. HARDING et al.
• Court: U.S. District Court — Eastern District of New York

108 F. Supp. 338

BRADFORD v. HARDING et al.

Civ. No. 12935.

United States District Court E. D. New York.

November 14, 1952.

E. F. W. Wildermuth, New York City, for plaintiff, appearing specially.

Frank J. Parker, U. S. Atty., Brooklyn, N. Y., Irving P. Kartell, Asst. U. S. Atty., Brooklyn, N. Y., for defendants.

BYERS, District Judge.

This is a plaintiff's motion to remand to the Supreme Court, State of New York, County of Queens, on the ground that the petition is inadequate in ten specified respects, most of which go to its legal sufficiency. The action is against fifty-four defendants, among whom are John F. X. McGohey, Irving H. Saypol, Irving R. Kaufman, Thomas F. Burchill, Jr., James E. Mulcahy, Edward W. McDonald and Emmet E. Harding, and concerning whom and other defendants, the complaint alleges:

"3. That heretofore the defendants and each of them wilfully, wrongfully, falsely, unlawfully, forcibly and violently seized, assaulted and laid hold of plaintiff against his will and consent, and without any warrant, or any legal process, cause, right or authority, arrested, detained, imprisoned and confined the plaintiff and deprived him of his liberty and freedom without due process of law continually from the 18th day of September, 1949, to and including the 25th day of September, 1950 at 71-60 Manse Street, Forest Hills, Borough of Queens, City and State of New York at each of the following places in the City of New York:

240 Centre Street, Borough of Manhattan;

U. S. Court House, Borough of Manhattan;

427 West Street, Borough of Manhattan."

Seemingly, the plaintiff relies fundamentally upon the statement contained in Gully v. First National Bank, 299 U.S. 109 at 112-113, 57 S.Ct. 96, at pages 98, 81 L.Ed. 70, where, after pointing out that if the case is within a statute or right created by the laws of the United States, that must be the original element of the controversy which must be genuine and present, and not merely possible or conjectural:

"and the controversy must be disclosed upon the face of the complaint, unaided by the answer or by the petition for removal."

If that test is to be applied mechanically, which I venture to doubt, it does not dispose of this motion.

The word "disclosure" evokes a certain subjective quality, namely, that which is clear in the vision of the average reader. Since the plaintiff's pleading contains the names of a United States District Judge for the Southern District of New York, two successive United States Attorneys for that District, an Assistant U. S. Attorney, the United States Marshal, a U. S. Commissioner for the Southern District of New York and a U. S. Post Office Inspector, during the period named in the complaint, and since two of the places where they are alleged to have joined in the actions of which the plaintiff complains, are the United States Courthouse in the Borough of Manhattan and the Federal House of Detention, a reader would indeed have to be blind who did not observe that there is disclosed an alleged cause of action, such as is comprehended in Title 28 U.S.C.A. § 1441 et seq.

Since this Court may take judicial notice of the official status of certain of the defendants as above stated namely, their respective official capacities, authority and scope of their duties—Cooper v. O'Connor, 69 App.D.C. 108, 99 F.2d 135; Laughlin v. Rosenman, 82 U.S.App.D.C. 164, 163 F.2d 838, 839; Springfield v. Carter, 8 Cir., 175 F.2d 914, 917, and since two of the places in which they are alleged to have offended are U. S. Government properties, there is necessarily disclosed all that is requisite to inform the Court that a violation of federal law is asserted by the plaintiff, and that is sufficient to sustain the removal.

The recitals in the petition, to which the plaintiff insists the Court may not resort to inform itself, are uncontradicted by answering affidavit; they disclose that the plaintiff, having pleaded guilty to a federal offense and having conformed to the...