United States District Court, W.D. Louisiana, Shreveport Division
DOUGHTY MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
L. Hornsby, U.S. Magistrate Judge.
Steven Poole (“Plaintiff”) filed suit in state
court against Shreveport Police Officer John Briceno and the
City of Shreveport. Plaintiff alleged that Briceno shot him
four times in the back after a traffic stop. His state court
petition described Briceno's actions as excessive force
that constituted an intentional tort or, in the alternative,
gross or simple negligence.
months after the petition was served, Defendants served
Plaintiff with interrogatories, one of which asked him to
describe which actions he contends were unlawful or violated
his rights under the laws of the United States or the State
of Louisiana. Plaintiff's answer cited the Fourth
Amendment to the U.S. Constitution. Defendants removed the
case based on federal question jurisdiction within 30 days of
being served with that answer.
the court is Plaintiff's Motion to Remand (Doc. 8) on the
grounds that the removal was untimely. Plaintiff argues that
his original petition triggered the removal period because it
alleged facts that could support a federal claim. For the
reasons that follow, it is recommended that the motion to
remand be denied.
generally may remove a civil action brought in a state court
if the federal district courts have original jurisdiction
over the action. 28 U.S.C. §1441(a). The district courts
“have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. This is often
referred to a “federal question” jurisdiction,
and it is the basis for removal in this case.
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. . .” 28 U.S.C. §
1446(b)(1). But “if the case stated by the initial
pleading is not removable, a notice of removal may be filed
within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order, or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” § 1446(b)(3).
argues that the service of his initial pleading-his
petition-on April 5, 2018 triggered the removal period.
Defendants respond that no federal claim was alleged in the
petition or otherwise asserted until they were served with
the discovery response on August 17, 2018, which made their
removal on August 29, 2018 timely under the “other
paper” provision. A review of the petition and relevant
discovery is necessary to assess the issue.
state court petition alleges that a Shreveport resident
called 911 to report what she believed was a suspicious truck
on her street, where there had been some recent burglaries.
While this call was being investigated, Officer Briceno saw
Plaintiff's truck stop at a stop sign. Plaintiff's
truck did not match the description of the one reported by
the resident, but Briceno turned on his emergency lights and
attempted to make a traffic stop. Petition, ¶¶ 1-5.
of stopping, Plaintiff drove through a parking lot and left
the scene. Briceno began what turned out to be about a 15
minute low-speed pursuit that included five patrol cars.
Plaintiff eventually stopped, exited his truck and, after
some movement, placed his empty hands on the side rail of the
bed of his truck. Briceno's patrol car rolled into the
rear of Plaintiff's truck after Plaintiff had exited.
Plaintiff then turned his back to Briceno and opened his
truck door. Briceno shot Plaintiff three times in his back
and once in the back of his thigh. Two more shots were
allegedly fired but did not hit Plaintiff. ¶¶ 6-13.
was handcuffed and, eventually, taken by ambulance to the
hospital. He spent approximately 38 days in the hospital,
most of the time in a coma. The police found no weapons,
illegal drugs, alcohol, or stolen items in Plaintiff's
truck. Plaintiff alleges that he is no longer able to perform
his job as an HVAC technician and that he will require
extensive future medical care to address his injuries.
petition does not make reference to 42 U.S.C. § 1983 or
any provision of the United States Constitution or other
federal law. The only legal theories mentioned are tort law
concepts recognized by state but not federal law. In
particular, the petition alleges as a follows:
Defendant Briceno's shooting of Poole was unreasonable
and constituted the use of excessive force and was without
just cause or provocation. Briceno's actions therefore
constituted an intentional tort, or, in the alternative,
gross and/or simple negligence. He is thereby ...