Burke v. Austin Independent School Dist.
Decision Date | 18 March 1987 |
Docket Number | Civ. No. A-86-CA-625. |
Citation | 709 F. Supp. 120 |
Parties | Linda BURKE, Individually and as Next Friend of Matthew Peschel, a minor v. AUSTIN INDEPENDENT SCHOOL DISTRICT, et al. |
Court | U.S. District Court — Western District of Texas |
Larry Watts, Watts & Company, P.C., Houston, Tex., for plaintiff.
James R. Raup, McGinnis, Lochridge & Kilgore, Austin, Tex., for defendants.
Before the Court are Defendants' Motion to Dismiss and Plaintiff's Motion to Remand. This case was originally filed in state court; Defendants removed the case to this Court on November 20, 1986. On December 1, 1986 the Defendants filed their Motion to Dismiss, arguing that Plaintiff's complaint failed to state a claim upon which relief may be granted. The Plaintiff responded to the Motion to dismiss on December 19, 1986, by arguing that Plaintiff did not intend to and did not raise a federal claim in her complaint. She thus requested the Court to remand the case to state court. The response does not address any of the substantive legal arguments supporting dismissal, but rather only seeks remand of the case to state court. The Court, having considered the motions, as well as the responses thereto, in addition to all of the pleadings on file in this cause, is of the opinion that the Motion to Remand should be DENIED and the Motion to Dismiss should be GRANTED.
This is a suit to recover damages for personal injuries the Plaintiff's son suffered while in a woodwork class at Crockett High School in the Austin Independent School District. Plaintiff seeks to recover $1,000,000.00 from the woodwork instructor, the school principal, the school district, its present and former Trustees, and its Superintendent. Plaintiff argues that the Defendants' negligence and/or gross negligence states a claim for deprivation of Plaintiff's son's Fourteenth Amendment rights, and also provides her with a claim under the nuisance law of Texas.
The Defendants removed this case on December 1, 1986, arguing that this Court has jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343(a)(4), and that the case was therefore removable pursuant to 28 U.S.C. § 1441. Plaintiff responds that she As Defendants rightly point out, Plaintiff's original petition contains the following allegations:
Liability of Defendants
Plaintiff would show that her son had protected property interest and liberty interest in his bodily integrity and in the rules and regulations of the Texas Education Agency.
Plaintiff's Original Petition at 4-5. Technically speaking, Plaintiff is correct in her statement that she "did not allege a 1983 action," as she never invokes that statute in the petition. The petition clearly invokes, however, the Fourteenth Amendment to the United States Constitution, and argues that Plaintiff is entitled to recover damages against Defendants under the Fourteenth Amendment.
The applicable statute in this case, 28 U.S.C. § 1441(b) provides for the removal of actions "founded on a claim or right arising under the Constitution, treaties or laws of the United States." The criteria for deciding when a claim "arises under" federal law is well settled:
To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action. The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.
Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (citations omitted). See also In re Carter, 618 F.2d 1093, 1100 (5th Cir.1980), cert. denied, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981); and Coleman v. Louisville Pants Corporation, 691 F.2d 762, 764-65 (5th Cir.1982). Without question, Plaintiff's petition falls within the scope of section 1441(b), as it clearly attempts to state a claim under the Fourteenth Amendment. The alleged Fourteenth Amendment rights set out in Plaintiff's petition are essential elements to Plaintiff's cause of action. Moreover, Plaintiff's claim depends upon the construction given to the Fourteenth Amendment. Thus, the Defendants' removal of the action to this Court was proper, and the Plaintiff's motion to remand will be Denied.
The Plaintiff elected not to respond to the merits of the Defendants' Motion to Dismiss, and the Motion is therefore uncontested. Plaintiff's petition sets out two theories of relief: (1) the action under the Fourteenth Amendment discussed above; and (2) an action under the nuisance law of the State of Texas. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Reeves v. Guiffrida, 756 F.2d 1141, 1143 (5th Cir.1985).
As noted above, the federal claim in Plaintiff's petition is a claim under the Fourteenth Amendment.1 The Plaintiff objects that the Defendants removed this action, only to immediately seek dismissal for failure to state a claim. She aruges that "for Defendants to use the legal system of this country in such tortious manner to escape litigation of their actions is inexcusable and should not be tolerated." Plaintiff's objection is not well-founded. She has no one but herself to blame for this action having been removed. Had she not pleaded a claim under the Fourteenth Amendment the case would not be in this Court. Moreover, the clear law of the federal courts allows for the removal of an action presenting a federal question, followed by the subsequent dismissal of that action for failure to state a claim. This is because jurisdiction is determined from the face of the Plaintiff's pleadings, and the issue of whether a complaint states a claim goes to the merits of the case, and not to the jurisdiction of the court. Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1346-47 (5th Cir.1985).
Rankin v. City of Wichita Falls, Texas, 762 F.2d 444, 447 (5th Cir.1985), citing Hull v. City of Duncanville, 678 F.2d 582, 584 (5th Cir.1982). The Court in Rankin went to great lengths to make it clear that a claim under the Fourteenth Amendment must be directed at the "abuse of power made possible only because the wrongdoer is clothed with the authority of state law." Id. at 448. Applying those principles, the Rankin court found that the Plaintiff had failed to state a claim based upon the negligent and/or grossly negligent operation of a sewer treatment facility at which the Plaintiff's son was killed. In Daniels and Davidson, the Supreme Court also focused on the "abuse of power" element required by the Fourteenth Amendment. See 106 S.Ct. at 664-65 at 670.
It is clear from a reading of Plaintiff's petition that she cannot make a claim cognizable under the Fourteenth Amendment. Like the situation in Rankin, even if the Defendants' acts here were grossly negligent, there are no allegations that the Defendants abused the power given them as a result of their positions, or that the Defendants engaged in anything that could be labeled "egregious." Indeed, like the situation in Rankin, this case presents an ordinary negligence case that occurred on public property. As the Court in Rankin noted, these facts are insufficient to state a claim under the Fourteenth Amendment.
The Plaintiff's petition therefore fails to state a federal constitutional claim against ...
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