The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1127

___________

Randy Williams, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Peter Ray Ragnone, in his individual * District of South Dakota.

and official capacity as Rapid City *

Police Officer; City of Rapid City; and *

Pennington County, South Dakota, *

*

Appellants. *

___________

Submitted: March 12, 1998

Filed: June 12, 1998

___________

Before BEAM and HEANEY, Circuit Judges, and KOPF, District Judge. 1

___________

BEAM, Circuit Judge.

Randy Williams sued the defendants, Peter Ray Ragnone, the City of Rapid City,

and Pennington County, South Dakota, in state court for alleged violations of 42 U.S.C.

§ 1983 and state law. The defendants removed to the United States District Court for

the District of South Dakota, and now appeal from the district court's order remanding
-2-

the action to state court. We vacate the order and remand this matter to the district

court. 

I. BACKGROUND

In the complaint filed in South Dakota state court, Williams alleged (1) that

Ragnone, a city police officer, beat him during a traffic stop; (2) that other officers

witnessed the battery, but failed to intervene; (3) that, after Williams was jailed, officers

failed to provide him with medical treatment; and (4) that the city failed properly to train

its officers to effectuate an arrest without the use of excessive force and provide

immediate medical treatment to victims of police beatings. Williams asserted violations

of section 1983, unreasonable search and seizure, and violation of his substantive due

process rights under the federal and state constitutions, as well as conspiracy to commit

these wrongs. He also included claims for battery, intentional infliction of emotional

distress, and negligence as to the battery, the deprivation of medical care, and the hiring,

retention, and training of Ragnone. 

The defendants removed to federal court, asserting that removal was proper

because Williams alleged a violation of rights under the United States Constitution

pursuant to 42 U.S.C. § 1983, and the district court therefore had original jurisdiction

pursuant to 28 U.S.C. § 1331. Williams then moved to remand to state court. The

defendants opposed Williams's motion, reiterating that the district court had federal

question jurisdiction, making the action removable pursuant to 28 U.S.C. § 1441(a) or

(b). The district court granted Williams's motion to remand, citing the concurrent

jurisdiction that federal and state courts share over section 1983 claims. The court

found that section 1331 was not relevant, and noted that the court was "concerned here

with the civil rights statute, 28 U.S.C. § 1443," which "pertain[ed] to the removal of

civil rights cases" and applied only in cases involving racial inequality. The defendants

moved for reconsideration, arguing that the district court exceeded its authority in

remanding, because (1) the basis for removal was section 1441, not section 1443; (2)
-3-

the court had original jurisdiction over the section 1983 claims; and (3) there were no

defects in the removal procedure. The district court denied the motion. The defendants

appeal. 

II. DISCUSSION

Initially, we acknowledge that 28 U.S.C. § 1447(d) states that "[a]n order

remanding a case to the State court from which it was removed is not reviewable on

appeal or otherwise." The Supreme Court, however, has clarified that section 1447(d)

bars appellate review only if the district court remands on the grounds articulated in

section 1447(c), i.e., for lack of subject matter jurisdiction or defects in the removal

procedure. See Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1718 (1996). Here,

the district court stated that it remanded this case in its discretion, rather than for a

reason listed in section 1447(c). We are therefore not barred by section 1447(d) from

reviewing the district court's decision to remand. Furthermore, though a remand order

is not formally a final judgment, it is reviewable on appeal to the extent that it

"conclusively determine[s] a disputed question that is completely separate from the

merits of the action, [is] effectively unreviewable on appeal from a final judgment . . .

and [is] too important to be denied review." Quackenbush, 116 S. Ct. at 1718-19

(citations omitted). We are presented with such a situation. The remand order issued

by the district court effectively "surrender[s] jurisdiction to the state court, and [the

defendants] have no other opportunity to appeal that decision in a federal court."

Gaming Corp. of Am. v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996) (applying

Quackenbush). Accordingly, our review of the district court's remand order is proper.

We agree with the defendants that the applicable statute governing removal of

this case is 28 U.S.C. § 1441. This case is properly removed pursuant to either

subsection (a) or subsection (b) of that statute. Section 1441(b) allows a party to

remove to federal court any civil action over "which the district courts have original
-4-

jurisdiction founded on a claim or right arising under the Constitution, treaties or laws

of the United States." Federal question jurisdiction exists if the "well-pleaded complaint

establishes either that federal law creates the cause of action or that the plaintiff's right

to relief necessarily depends on resolution of a substantial question of federal law."

Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983).

We find that Williams's complaint raises a federal question because it asserts claims

under 42 U.S.C. § 1983 for alleged violations of federal constitutional rights. When a

federal question is present on the face of the complaint, the district court has original

jurisdiction and the action may be removed to federal court. See Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392-93 (1987).

The district court relied on the concurrent jurisdiction of state and federal courts

over section 1983 claims in finding that this case was not removable. That reliance was

misplaced. Section 1441(a) provides:

Except as otherwise expressly provided by Act of Congress, 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 . . . defendants,

to the district court of the United States for the district and division

embracing the place where such action is pending.

28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over section 1983

claims, notwithstanding the fact that they share such jurisdiction with the courts of the

states in which they sit. Accordingly, section 1983 claims brought in state court are

removable pursuant to section 1441(a), unless Congress has "otherwise expressly

provided." Congress has not indicated in any statute, expressly or otherwise, that

section 1983 claims are not removable. "A congressional grant of concurrent

jurisdiction in a statute does not imply that removal is prohibited." 14A Charles Alan

Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3729,

at 495 (2d ed. 1985); see, e.g., Nielson v. Soltis, 41 F.3d 1516 (10th Cir. 1994)
-5-

(unpublished table decision); Warren v. United States, 932 F.2d 582, 585-86 (6th Cir.

1991); Dorsey v. City of Detroit, 858 F.2d 338, 341 (6th Cir. 1988). 

"[T]he presence of even one federal claim gives the defendant the right to remove

the entire case to federal court." Gaming Corp., 88 F.3d at 543. By raising claims that

arise under federal law, Williams subjected himself to the possibility that the defendants

would remove the case to federal court. See City of Chicago v. International College

of Surgeons, 118 S. Ct. 523, 529 (1997). The district court has supplemental

jurisdiction over Williams's state law claims because they form part of the same case or

controversy as his section 1983 claims. See 28 U.S.C. § 1367(a). This entire case was

properly removed, and the district court was therefore without discretion to remand it.

See Gaming Corp., 88 F.3d at 542 (stating that a district court has no discretion to

remand a claim that states a federal question).

III. CONCLUSION

For the foregoing reasons, the district court's remand order is vacated, and this

case is remanded to the district court. 

A true copy.

 ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.