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Poole v. City of Shreveport

United States District Court, W.D. Louisiana, Shreveport Division

October 18, 2018

BRIAN STEVEN POOLE
v.
CITY OF SHREVEPORT

          DOUGHTY MAGISTRATE JUDGE.

          REPORT AND RECOMMENDATION

          Mark L. Hornsby, U.S. Magistrate Judge.

         Introduction

         Brian 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.

         Several 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.

         Before 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.

         Timeliness Rules

         Defendants 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.

         “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. . .” 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).

         Plaintiff 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.

         Relevant Facts

         Plaintiff's 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.

         Instead 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.

         Plaintiff 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. ¶¶ 17-24.

         Plaintiff's 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:

25.
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 ...

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