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Cubb v. Belton

United States District Court, E.D. Missouri, Eastern Division

July 6, 2015

JOHN ELDRED CUBB, Plaintiff,
v.
DENISE BELTON, Defendant.

MEMORANDUM and ORDER

JOHN M. BODENHAUSEN, Magistrate Judge.

Plaintiff John Eldred Cubb filed an ex parte "abuse and stalking" petition in state court against his supervisor, Defendant Denise Belton, seeking a restraining order and other injunctive relief. Defendant filed a timely petition to remove the action to this Court and now moves to dismiss the complaint for lack of subject matter jurisdiction pursuant to the Federal Rules of Civil Procedure 12(b)(1). (ECF No. 5) Plaintiff filed a Memorandum for the Clerk in opposition to the motion. (ECF No. 10) For the reasons set forth below, the Court will grant Defendant's motion.

I. Background

A. Procedural History

On April 1, 2015, Plaintiff, an employee of the United States Postal Service ("USPS"), filed an "Adult Abuse/Stalking Petition for Order of Protection"" in the Circuit Court of St. Louis County, Missouri, alleging that during March of 2015, Defendant abused him in the workplace on three occasions. (ECF No. 2 at 7) Plaintiff asserts that Defendant took these actions in response to the February 20, 2015 resolution, in his favor, of an earlier grievance he filed against her. ( Id. ) On April 24, 2015, citing 28 U.S.C. § 1442, Defendant filed a petition to remove the case to this Court, pursuant to 28 U.S.C. 1446. (ECF No. 1) Thereafter, on April 29, 2015, Defendant moved, pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. (ECF No. 5) Defendant asserts that, if Plaintiff's suit is construed as one arising under federal law, it is subject to dismissal for failure to exhaust required administrative remedies or, in the alternative, barred by the doctrine of sovereign immunity. The Court will construe Plaintiff's responsive pleading as opposition to the petition for removal as well as to the motion to dismiss.

B. The Allegations

Plaintiff alleges that, during December of 2013, he had a dispute with Defendant that ended with Plaintiff being escorted from the post office by the local police. (ECF No. 1-4 at 7) Following this incident, Plaintiff filed a grievance asserting that Defendant made a false claim about him to the police. On February 20, 2015, the grievance was resolved in Plaintiff's favor, and he was "reinstated, and made whole, in its entirety." ( Id. ) Plaintiff alleges that thereafter: (1) on March 5, 2015, Defendant spoke to him, "smirking;" (2) on March 12, 2015, Defendant walked up to him and intimidated him; and (3) on March 23, 2015, Defendant yelled at him from a distance in order to provoke him and then began to discipline him for insubordination. (ECF No. 2 at 3) Plaintiff also alleges that Defendant continued to "walk pass me an speak [sic]" yelled at him from a distance, tried to discipline him with a "PDI for insubordination, " and followed him in his work area while staring at him and intimidating him. (ECF No. 2 at 7) Plaintiff claims that these acts violate the arbitrator's judgment regarding his earlier grievance, (ECF No. 2 at 3), and that as a result of these incidents, he does not feel safe "at work when [Defendant] enters the workroom floor/building." (ECF No. 1-4 at 7) He seeks a restraining order preventing Defendant from stalking him, entering onto the premises of his place of employment, coming within 300 feet of him, and communicating with him in any manner or through any medium. (ECF No. 2 at 3) Plaintiff further requests a court order directing Defendant to participate in an anger-management program, pay court costs and attorney's fees and requiring the USPS to investigate the matter. ( Id. at 4)

Recognizing that Plaintiff is proceeding pro se, the Court interprets his claim liberally. The Court notes that Plaintiff also generally alleges "abuse" and cites a Missouri statute, Mo. Rev. Stat. § 455.010 as the basis for his claim. Plaintiff's allegations relate only to conduct within the workplace, and he seeks injunctive, but not compensatory, relief.[1]

II. Discussion

A. The Propriety of the Removal

Defendant cites 28 U.S.C. § 1442(a)(1), the federal officer removal provision, as the basis for removal here. Section 1442 allows for removal to a federal forum of any civil or criminal action against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1). "Four elements are required for removal under § 1442(a)(1): (1) a defendant has acted under the direction of a federal officer; (2) there was a causal connection between the defendant's actions and the official authority; (3) the defendant has a colorable federal defense to the plaintiff's claims; and (4) the defendant is a person, ' within the meaning of the statute." Jacks v. Meridian & Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir. 2012) (citing Dahl v. R.J Reynolds Tobacco Co., 478 F.3d 965, 967 n. 2 (8th Cir.2007)).

For purposes of this removal provision, an act is considered "under the color of office" if the defendant can show a "causal connection between the charged conduct and asserted official authority." Willingham v. Morgan, 395 U.S. 402, 409 (1969) (internal quotation omitted). "While not limitless, [t]he words acting under are broad, ' and the Supreme Court has made clear that the statute must be liberally construed.'" Jacks, 701 F.3d at 1230 (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 147 (2007) (internal quotation omitted)). The third element is satisfied when a "plausible" federal defense is raised. United States v. Todd, 245 F.3d 691, 693 (8th Cir. 2001) (citing Willingham, 395 U.S. at 406-07) ("it need only be plausible; § 1442(a)(1) does not require a court to hold that a defense will be successful before removal is appropriate"). The fourth element is satisfied when the party being sued is a natural person. C.H. v. American Red Cross, 684 F.Supp. 1018, 1023 (E.D. Mo. 1987).

Applying these factors, the Court first notes that the first, second and fourth elements are satisfied here. Defendant is a natural person and an employee of the USPS, which is in turn "an independent establishment of the executive branch of the Government of the United States, '" 39 U.S.C. § 201. As a manager for the USPS, Defendant is, or acts under the direction of, a federal official or officer of the United States. See Dolan v. United States Postal Serv., 546 U.S. 481 (2006) (holding that USPS workers are agents of the United States), questioned on other grounds in Ali v. Federal Bureau of Prisons, 552 U.S. 214, 224 (2008). In addition, Plaintiff's allegations relate solely to acts occurring in the workplace. Therefore, they concern acts taken by Defendant under the "color of such office" and have a causal connection to her exercise of official authority. Willingham, 395 U.S. at 409.

With respect to the requirement that the removing party raise a plausible federal defense, the Court notes that Defendant has asserted sovereign immunity in her motion to dismiss.[2] (ECF. No. 5 at 5) And, the defense is certainly "plausible" given the fact that absent a waiver, "the Postal Service enjoys the protection of federal sovereign immunity." Dolan, 546 U.S. at 484; see also An Attorney at Law v. Stuart (In re Charges of Unprofessional Conduct Against 99-37), 249 F.3d 821, ...


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