IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

TRACY JACKSON, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 10-00168-B

 :

MUNICIPALITY OF SELMA, et al., : 

 :

Defendants. :

REPORT AND RECOMMENDATION

This action is before the Court on Plaintiff's Response to

Defendant’s Notice of Transfer (Doc. 6) and Plaintiff’s Amended

Complaint (Doc. 7). In Plaintiff’s Response, he asserts that this

Court lacks jurisdiction because in his Amended Complaint, he has

removed “all allegations that reference violations of Federal law.”

(Doc. 6, p. 1). Thus, Plaintiff requests that this case be remanded

back to the Court from which it was removed, namely the Circuit

Court of Dallas County. Based upon a careful review of Plaintiff’s

Response to Defendant’s Notice of Transfer, Plaintiff’s Amended

Complaint, and Defendants’ Response, the undersigned recommends that

Plaintiff’s request for remand be DENIED. The Order entered April

29, 2010 (Doc. 10) is hereby WITHDRAWN. 

Plaintiff’s Amended Complaint

Plaintiff, on April 23, 2010, filed an Amended Complaint which

purportedly removes all federal claims. (Doc. 7). As a threshold

matter, the undersigned observes that Rule 15(a)provides, in

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pertinent part, as follows:

(a) Amendments Before Trial.

 (1) Amending as a Matter of Course. A party may amend

its pleading once as a matter of course:

 (A) 21 days after serving it, or

 (B) if the pleading is one to which a responsive

pleading is required, 21 days after service of a

responsive pleading or 21 days after service of a motion

under Rule 12(b), (e), or (f), whichever is earlier.

 (2) Other Amendments. In all other cases, a party may

amend its pleading only with the opposing party's written

consent or the court's leave. The court should freely

give leave when justice so requires.

See Rule 15(a)(1)& (2) of the Federal Rules of Civil

Procedure.

Pursuant to Rule 15(a), Plaintiff was permitted to amend his

Complaint once as a matter of right, as long as he did so within 21

days of service of Defendants’ Answer or a motion under Rule

12(b),(e) or (f). In this case, the record reflects that

Defendants’ Answer was filed on April 9, 2010 (Doc. 2), and

Plaintiff’s Amended Complaint was filed subsequent thereto on April

23, 2010. (Doc. 7). Accordingly, the undersigned finds that under

these circumstances, Plaintiff’s Amended Complaint was timely filed

as a matter of right.

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Plaintiff’s Motion to Remand

The Court turns next to Plaintiff’s Response to Defendant’s

Notice of Transfer (Doc. 6), which the undersigned is treating as

a motion to remand. In his response, Plaintiff seeks to have this

case remanded to state court on the ground that with his Amended

Complaint, all of Plaintiff’s federal claims have been deleted.

Defendants argue that this Court has federal jurisdiction because

at the time of removal, Plaintiff had asserted claims under federal

law and the United States Constitution. Defendant further asserts

that while Plaintiff purports to have removed all of his federal

claims, his Amended Complaint includes an entire section entitled

“Federal and Constitutional Claims.” Finally, Defendant asserts

that Plaintiff’s request to transfer should be treated as a

voluntary dismissal pursuant to Rule 41(a)(2) of the Federal Rules

of Civil Procedure.

Federal Courts have limited subject matter jurisdiction, and

are empowered to decide only certain types of cases. See Morrison

v. Allstate Indemnity Co., 228 F.3d 1255, 1260-61 (llth Cir. 2000).

In particular, lower federal courts can hear only cases for which

Congress has granted them jurisdiction. Once a federal court

determines that no grant of jurisdiction applies in a particular

case, it must immediately dismiss the case for lack of

jurisdiction. See Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327,

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1331 n.6(llth Cir. 2001). 

Removal statutes are construed narrowly and jurisdictional

uncertainties are resolved in favor of remand. Burns v. Windsor

Ins. Co., 31 F. 3d 1092, 1095 (llth Cir. 1994) (“While a defendant

does have a right, given by statute, to remove in certain

situations, plaintiff is still the master of his own

claim”)(citations omitted). In removal actions, the removing party

bears the burden of establishing jurisdiction. Diaz v. Sheppard,

85 F. 3d 1502, 1505 (llth Cir. 1996) A defendant may remove an

action from state court to federal court only if the action is one

over which the federal court possesses subject-matter jurisdiction.

See 28 U.S.C. § 1441(a). 

Federal question jurisdiction is present in only those cases

that "arise under the Constitution, laws, or treaties of the United

States." 28 U.S.C. § 1331. The presence or absence of federal

question jurisdiction is governed by the "well-pleaded complaint

rule,” which provides that federal jurisdiction exists only when a

federal question is presented on the face of the plaintiff's

properly pleaded complaint. Caterpillar, Inc. v. Williams, 482

U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987); Kemp v.

International Bus. Machs. Corp., 109 F.3d 708, 712 (11th Cir.

1997).

In the case sub judice, the undersigned observes, as a

preliminary matter, that while Plaintiff is deemed to be the master

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of his Complaint, and is contending that he amended his Complaint

to remove any federal claims, a review of the two Complaints

reveals that they are nearly identical except that the original

Complaint contains a jurisdictional statement which provides that

Plaintiff’s claims are being brought pursuant to 28 U.S.C. §§ 1331

and 1367, and 28 U.S. C. § 1983, whereas the Amended Complaint does

not contain a jurisdictional statement. In both complaints,

Plaintiff alleges that following a hip-hop stage performance on

March 8, 2008, he was assaulted by Defendant Jones and other police

officers, and that as a result, he suffered bodily injury, mental

anguish, medical bills and hardship and inconvenience. Plaintiff

also asserts an assault and battery claim, and in a section

entitled “State Law Claims,” he asserts claims for false arrest,

false imprisonment, malicious prosecution, invasion of privacy,

negligence and wantonness. In another section of the Complaint

entitled “Federal and Constitutional Claims,” Plaintiff asserts

that while operating under color of state law, the officers

violated his fourth amendment right to be free from unreasonable

searches and seizures, and his fourteenth amendment right to due

process of law. He further asserts that the officers engaged in

malicious prosecution. Plaintiff also contends that the City of

Selma was deliberately indifferent and failed to respond to

Plaintiff’s repeated complaints of constitutional violations, had

a policy of inadequate training or supervision, knew about

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As a side note, the undersigned observes that neither side

disputes the fact that at the time this case was removed, the

Court had original jurisdiction over Plaintiff’s federal claims,

see 28 U.S.C. § 1331, as well as supplemental jurisdiction over

Plaintiff’s state law claims. See 42 U.S.C. § 1367(a). If a

district court has subject matter jurisdiction based on federal

question at the time of removal, subsequent acts do not

automatically divest the court of its jurisdiction over remaining

state law claims in the original complaint. Behlen v. Merrill

Lynch, 311 F.3d 1087, 1095 (llth Cir. 2002).

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widespread police abuse but failed to stop it, and was indifferent

to hiring. Additionally, Plaintiff asserts that the officers

violated his right to be free from cruel and unusual punishment

under the eighth amendment.

Based upon a careful reading of Plaintiff’s original Complaint

and his Amended Complaint, the undersigned finds that while

Plaintiff may have intended to delete his federal claims, his

Amended Complaint, as drafted, still includes federal claims1. As

noted supra, while Plaintiff deleted the jurisdictional statement

from his Amended Complaint, the document still contains a section

labeled “Federal and Constitutional Claims,” and includes

allegations that Defendants violated Plaintiff’s rights under the

fourth, eighth and fourteenth amendments. Accordingly, the

undersigned finds that the face of Plaintiff’s well pled Amended

Complaint contains claims that arise under federal law and provides

a basis for the exercise of federal jurisdiction. See Gibson v.

Firestone, 741 F. 2d 1268, 1271 (llth Cir. 1984)(plaintiff’s

allegations of deprivation of “their fourteenth amendment rights to

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due process and equal protection . . . are adequate to invoke

federal subject matter jurisdiction”). Accordingly, the

undersigned RECOMMENDS that Plaintiff’s request for remand be

DENIED.

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

DONE this 3rd day of May, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within fourteen (14) days of the date of

service of this document, file specific written objections with

the clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual

findings of the magistrate judge. See 28 U.S.C. § 636(b)(1)©;

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The

procedure for challenging the findings and recommendations of the

magistrate judge is set out in more detail in SD ALA LR 72.4

(June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served with

a copy of the recommendation, unless a different time

is established by order. The statement of objection

shall specify those portions of the recommendation to

which objection is made and the basis for the

objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a

brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is

insufficient to submit only a copy of the original

brief submitted to the magistrate judge, although a

copy of the original brief may be submitted or referred

to and incorporated into the brief in support of the

objection. Failure to submit a brief in support of the

objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Opposing party’s response to the objection. Any opposing

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party may submit a brief opposing the objection within fourteen

(14) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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