Miller v. Annucci, 9:19-CV-0030 (LEK/ATB)

• Decision Date: 05 June 2019
• Docket Number: 9:19-CV-0030 (LEK/ATB)
• Parties: DANIEL MILLER and KRISTERFER PASSINO, Plaintiffs, v. ANTHONY J. ANNUCCI, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

DANIEL MILLER and KRISTERFER PASSINO, Plaintiffs, v. ANTHONY J. ANNUCCI, et al., Defendants.

9:19-CV-0030 (LEK/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 5, 2019

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiffs Daniel Miller and Kristerfer Passino commenced this action in New York State Supreme Court, Oneida County, against twenty defendants all alleged to be employees of the New York State Department of Corrections and Community Supervision ("DOCCS") or the Office of Mental Health ("OMH"). Plaintiffs assert claims pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1985, the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), and § 504 of the Rehabilitation Act ("RA") arising out of their confinement at Marcy Correctional Facility ("Marcy C.F."). See Dkt. No. 2 ("Complaint"). On January 18, 2019, Defendants removed this action from state court and paid the statutory filing fee. Dkt. No. 1 ("Notice of Removal").

On January 11, 2019, Defendants requested an initial screening of the Complaint pursuant to 28 U.S.C. § 1915A.¹ Dkt. No. 5 ("Defendants' Request for Screening"). On February 4, 2019, the Court granted Defendants' motion and the Clerk forwarded the Complaint to the Court for review. Dkt. No. 9 ("February 4, 2019 Text Order"). Miller did not object to the initial screening, but presented procedural challenges to the removal.² Dkt. No. 7 ("Submission in Support") at 1. Miller moved for a preliminary injunction with a motion to seal selected exhibits submitted in support of the motion for injunctive relief. Dkt. No. 6 ("First PI Motion"); Dkt. Nos. 7, 12, 13, 16, and 20 ("Submissions in Support"); Dkt. Nos. 14 and 19 ("Submissions in Support with Motions to Seal"). Defendants oppose the motions. Dkt. Nos. 10 ("Opposition to First PI Motion"), 11 ("Defendants' Exhibit"), 17 ("Opposition to Motion to Seal"). On March 22, 2019, Miller filed a second motion for preliminary injunction, Dkt. No. 22 ("Second PI Motion"), which defendants also oppose. Dkt. No. 23 ("Opposition to Second PI Motion"). However, on May 6, 2019, Miller filed a motion seeking to withdraw all pending motions. Dkt. No. 24 ("Letter Motion to Withdraw").

II. REMOVAL

The Complaint contains claims for violations of Plaintiffs' First, Eighth, and Fourteenth Amendment rights, as well as ADA, RA, and state law claims, related to incidents primarily at Marcy C.F. from March 2016 through September 2018. See generally Compl. On October 18, 2018, Plaintiffs filed their Complaint in state court. Compl.

From December 17, 2018 until January 4, 2019, Plaintiffs served Defendants with summonses and the Complaint in accordance with a state court order allowing alternative service. Notice of Removal at 3; Dkt No. 1-2 ("Order Permitting Substitute Service").

On January 8, 2019, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1441 premised on federal-question jurisdiction. Notice of Removal.

A. Legal Standard

§ 1441, which sets forth the jurisdictional basis for removal, states that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." See also Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83 (2005) (explaining that § 1441 "authorizes the removal of civil actions from state court to federal court when the action initiated in state court is one that could have been brought, originally, in a federal district court").³ However, "[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability." Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 274 (2dCir. 1994)).

28 U.S.C. § 1446, which sets forth the procedural requirements for removal to federal court, states:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

§ 1446(b)(1). The thirty-day window for removal contained in § 1446(b)(1), while not jurisdictional, is "rigorously enforce[d]" by courts absent a finding of waiver or estoppel. Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir. 1991), superseded on other grounds in Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008).

After an action is removed from state court to federal court, remand may be granted on one of two grounds: (1) a defect in removal procedure or (2) a lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). A motion to remand "on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal . . . ." Id.⁴

B. Analysis

Liberally construed, Miller objects to Defendants' removal of this action by asserting thatthe Notice of Petition and Petition for Removal were not served with a docket number or reference to an assigned judge. Dkt. Nos. 7, 14. Defendants have not responded to Miller's objection.

On the same day that the Notice of Removal was filed, Defendants provided Miller with a copy of the Notice. Notice of Removal. While Defendants did not serve a copy of the file-stamped Notice of Removal bearing the docket number and assigned judge, the failure to do so was not a violation of § 1446(d). Park v. McGowan, No. 11-CV-3454, 2011 WL 4963759, at *4 (E.D.N.Y. Oct. 19, 2011). On January 9, 2019, Plaintiffs were served with a Text Order, issued by The Honorable Andrew T. Baxter, U.S. Magistrate Judge, advising Plaintiffs that the action was removed. Dkt. No. 3. Miller does not allege that he did not receive the Text Order. Indeed, on January 25, 2019, Miller filed a letter motion addressed to Judge Baxter, with the docket number. Dkt. No. 6. The "pre-filing delivery of the Notice of Removal and subsequent confirmation" by the Court, one day later, satisfies the requirements of § 1446(d). See Park, 2011 WL 4963759, at *5.

Since this action was properly removed in accordance with §§ 1441(a) and 1446, the Court will review the Complaint pursuant to § 1915A.

III. SUFFICIENCY OF THE COMPLAINT

A. Standard of Review

Because Plaintiffs seek relief from an officer or employee of a governmental entity, the Court must consider the sufficiency of the allegations set forth in the Complaint in light of § 1915A. Under § 1915A, a court must review any "complaint in a civil action in which aprisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." § 1915A(b); see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (noting that § 1915A applies to all actions brought by prisoners against government officials even when he filing fee has been paid).

When reviewing a complaint, the Court also looks to Rule 8 of the Federal Rules of Civil Procedure, which provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). A court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. Thus, a pleading that contains only allegations which "are so vague as to fail to give the defendants adequate notice of the claimsagainst them" is subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009).

A pleading by a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts" that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005) ("We leave it for the district court to determine what other claims, if any, [plaintiff] has raised. In so doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not by the legal claims set out in his pleadings."); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [a pro se litigant's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."); Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is to be held "to less stringent standards...