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 Sout

h Dakota, and now appeal from the district court's order remanding-2-

the a ction to state court. We vacate the order and remand this matter to the distric t 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 officer s 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 fai led properly to train its of ficers to effectuate an arrest without the use of excessive force and provid e immediate medical treatment to victims of police beatings. Williams asserted violations of sec tion 1983, unreasonable search and seizure, and violation of his substantive due process rights under the federal and state constitut ions, as well as conspiracy to commit thes e wrongs. He also included claims for battery, intentional infliction of emotiona l distress, and negligence as to the battery, the deprivation of medical c are, and the hiring, retention, and training of Ragnone.

Th e defendants removed to federal court, asserting that removal was prope r because W illiams alleged a violation of rights under the United States Constitutio n 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. Th e defendant s opposed Williams's motion, reiterating that the district court had federa l question jurisdict

ion, making the action removable pursuant to 28 U.S.C. § 1441(a) or (b). Th e district court granted Williams's motion to remand, citing the concurren t jurisdicti onthat 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 o f civil rights cases" and applied only in case s involving racial inequality. The defendants moved for reconsideration, arguing that the district court exceeded its authority i n 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 de nied the motion. The defendants appeal.

II. DISCUSSION
Initially , we acknowledge that 28 U.S.C. § 1447(d) states that "[a]n orde r re manding a case to the State court from which it was removed is not reviewable o n appeal or otherwise." Th e Supreme Court, however, has clarified that section 1447(d) bars appellate review only if the district court remands on the grounds articulated i n section 144 7(c), i.e., for lack of subject matter jurisdiction or defects in the remova l procedure. See Quackenbush v. Allstate Ins. Co. , 116 S. Ct. 1712, 1718 (1996). Here, the distr ict 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 dist

rict court's decision to remand. Furthermore, though a remand order is not formal ly a final judgment, it is reviewable on appeal to the extent that i t "con clusively determine[s] a disputed question that is completely separate from th e 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 1718-1 9 (citation s omitted). We are presented with such a situation. The remand order issued by t he district court effectively "surrender[s] jurisdiction to the state court, and [th e def endants] 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 ). A ccordingly, our review of the district court's remand order is proper.

We agree with the defendants that the applicable statute governing removal o f th is case is 28 U.S.C. § 1441. This case is properly removed pursuant to eithe r subsection (a ) or subsection (b) of that statute. Section 1441(b) allows a party t o remove to federal court any civil action over "which the district courts have original-4-

jurisdicti on founded on a claim or right arising under the Constitution, treaties or laws of the United States." Federal question jurisdiction exists if the "we ll-pleaded complaint establishes either that

federal law creates the cause of action or that the plaintiff's right to r elief necessarily depends on resolution of a substantial question of federal law. " Franchise Tax Bd. v. Construction L aborers Vacation Trust , 463 U.S. 1, 27-28 (1983). We find that Williams's complaint raises a federal question because it asserts claim s under 42 U.S.C . § 1983 for alleged violations of federal constitutional rights. When a fe deral question is present on the face of the complaint, the district court has origina l jurisdictio n

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:

Exc ept as otherwise expressly provided by Act of Congress, any civi l action b rought in a State court of which the district courts of the Unite d States have original jurisdiction, may be removed by the . . . defendants, to the district court of the United States for the district and divisio n embracing the place where such action is pending.
28 U.S.C. § 1441(a). Federal district courts have original juris diction over section 1983 claims, notwith standing 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 ar e removable pursuant to section 1441(a), unless Congress has "otherwise expressl y pro vided." Congress has not indicated in any statute, expressly or otherwise, that section 1 983 claims are not removable. "A congressional grant of concurren t ju risdiction in a statute does not imply that removal is prohibited." 14A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Pr actice 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 t he right to remove the entire case to federal court." Gam ing Corp. , 88 F.3d at 543. By raising claims that arise under federal law, Williams subjected himself to the pos sibility that the defendants would remove the case to federal court. See City of Chicago v. International College of S urgeons , 118 S. Ct. 523, 529 (1997). The district court has supplementa l jurisdiction over Williams's state law claims be cause they form part of the same case or controversy as his section 1983 claims. See28 U. S.C. § 1367(a). This entire case was properly remov ed, and the district court was therefore without discretion to remand it. See Gami ng Corp. , 88 F.3d at 542 (stating that a district court has no discretion t o 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.