United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Plaintiff's Motion to Remand. (R. Doc. 5).
The motion is opposed. (R. Doc. 7).
about October 25, 2018, Kevin Wells (“Plaintiff”
filed the instant action in the 19th Judicial District Court,
East Baton Rouge Parish, Louisiana, naming as defendants
Deputy Richardson and Sheriff Gautreaux, III, of the East
Baton Rouge Sheriff's Department (collectively,
“Defendants”). (R. Doc. 1-3). Plaintiff alleges
that on September 2, 2017, Deputy Richardson
“intentionally injured and denied immediate care”
to Plaintiff and used “excessive and unnecessary
force” during an arrest resulting in confinement at the
East Baton Rouge Parish Prison. (R. Doc. 1-3 at
Plaintiff alleges that despite certain injuries on his
shoulder and a resulting infection, he was not provided
medical care for two days. (R. Doc. 1-3 at 1). In an apparent
separate claim, Plaintiff alleges that the East Baton Rouge
Sheriff's Office took “an hour and half to
respond” to an automobile accident in which he was
involved. (R. Doc. 1-3 at 2). Plaintiff alleges that Sheriff
Gautreaux “failed to properly instruct, monitor,
supervise, and warn [Deputy] Richardson of dangerous methods,
behavior, and actions that injure Citizens. . . .” (R.
Doc. 1-3 at 2).
specifically alleges that “Defendants['] actions
violate the Equal Protection and Due Process Laws of the
United States and Louisiana Constitutions with Sid Gautreaux
III having vicarious liability for his actions in [his]
official and individual capacity and the actions of Officers
Richardson and other subordinates.” (R. Doc. 1-3 at 2).
Plaintiff further alleges that Defendants failed “to
act with the required degree of professionalism, competence,
and commensurate care the law and Constitution
demands.” (R. Doc. 1-3 at 2).
November 26, 2018, Defendants removed this action on the
basis that there is federal question jurisdiction under 28
U.S.C. § 1331. (R. Doc. 1).
December 18, 2018, Plaintiff filed the instant Motion to
Remand. (R. Doc. 5). While Plaintiff appears to assert that
this Court lacks federal question jurisdiction, he asserts,
as in the Complaint, that his “state and federal”
civil rights “have been violated” as a result
“of malfeasance, unnecessary force, or malicious intent
of Defendants. . . .” (R. Doc. 5 at 1). Plaintiff
appears to argue that the action should be remanded to state
court because the state court is competent to address the
federal and state court claims raised in the Complaint. (R.
Doc. 5-1 at 1-3). Plaintiff attaches a copy of a payment by
the Department of Veterans Affairs regarding his treatment.
(R. Doc. 5-2).
opposition, Defendants assert that under the well-pleaded
complaint rule, the face of the Petition plainly raises a
claim for relief under 42 U.S.C. § 1983. (R. Doc. 7).