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Young v. Frame

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

June 11, 2019

CARMEN NICOLE YOUNG, Plaintiff,
v.
JOHN FRAME, Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Motion to Dismiss for lack of subject matter jurisdiction. (ECF. No. 4) Plaintiff has not filed a timely response in opposition or responded to the two Orders to Show Cause issued by this Court. Upon review of the motion to dismiss and the pleadings in this case, the Court finds that dismissal of Plaintiff spro se cause of action is appropriate.

         I. Background

         Plaintiff Carmen Young is an employee of the United States Postal Service ("USPS") working at the Network Distribution Center ("NDC") located in Hazelwood, Missouri. On November 28, 2018, Plaintiff filed apro se exparte Petition for Order of Protection - Adult in the Circuit Court of St. Louis County, Missouri. (ECF No. 3) Plaintiff claims that her supervisor at the USPS, Defendant John Frame, knowingly and intentionally "caused or attempted to cause me physical harm . . . placed or attempted to place me in apprehension of immediate physical harm .. . coerced me ... and harassed me." (Id. at ¶ 11) She further avers that there is an immediate and present danger of domestic violence because Defendant tried on several occasions to provoke/coerce Plaintiff into an argument and/or fight, and Defendant would find her at her work(space) where he cursed and yelled at her. (Id. at ¶ 12) Plaintiff requests an order of protection restraining Defendant from "committing or threatening to commit domestic violence, sexual assault, molesting, or disturbing the peace of Petitioner ...[, ] stalking Petitioner ...[, ] entering onto the premises of the Petitioner's place of employment[1] ...[, ] com[ing] within 5 feet of Petitioner ...[, ] and communicating with Petitioner in any manner or through any medium." (Id. at ¶ 15) Plaintiff cites Mo. Rev. Stat. §§ 455.010 - 455.085 as the basis of her claims. (Id.)

         On January 4, 2019, Defendant removed the case to federal court pursuant to 28 U.S.C. § 1442, which provides, "a civil action . . . that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending." 28 U.S.C. § 1442(a). The statute further specifies that removal is proper when a civil action is brought against "any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). Defendant maintains that Plaintiff s allegations relate to Defendant's position as a supervisor at the USPS Hazelwood NDC and therefore are properly removed to federal court. (ECF No. 1)

         On January 31, 2019, Defendant filed the present Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Defendant argues that he has sovereign immunity from suit. In addition, Defendant asserts that Plaintiff has improperly based her law suit on Missouri statutes designed to protect persons from domestic violence and stalkers, which do not pertain to workplace complaints against supervisors. Defendant maintains that Plaintiff should have filed her claims under federal provisions covering federal employee grievances which first require exhaustion of administrative remedies.

         On April 1, 2019, the Court issued an Order to Show Cause, noting that Plaintiff had not filed a memorandum in opposition as required by E.D. Mo. L.R. 4.01 or otherwise responded to Defendant's motion. (ECF No. 6) The Court ordered Plaintiff to "show cause, in writing and no later than April 15, 2019, why she has failed to respond to Defendant's Motion to Dismiss." (Id.) The Court also advised that failure to comply may result in dismissal of Plaintiff s claims.

         Plaintiff failed to comply with the Order of April 1, 2019, and on May 14, 2019, the Court issued a Second Order to Show Cause, ordering Plaintiff to show cause by May 31, 2019 why she has failed to respond to Defendant's motion and the Court's first Order to Show Cause. (ECF No. 7) The Order further provided that "[f]ailure to comply with this Order will result in dismissal of Plaintiff s claims against Defendant." (Id.) The Clerk of the Court mailed a copy of the May 14, 2019 Show Cause Order, along with the Defendant's Motion to Dismiss, Defendant's Memorandum in Support, and the first Order to Show Cause to Plaintiff at the address she provided via U.S. Postal mail and UPS. Tracking through UPS indicates that the documents were delivered on May 20, 2019 at 12:03 p.m. However, as of the date of this Memorandum and Order, Plaintiff has not responded to the Defendant's motion or to the Orders to Show Cause issued by this Court. In addition, the record shows that Plaintiff has done nothing to prosecute her case since she filed the pro se exparte Petition for Order of Protection - Adult in the Circuit Court of St. Louis County, Missouri in November of 2018.

         II. Discussion

         A. Removal under 28 U.S.C. § 1442(a)(1)

         The Court must first determine the propriety of removal of this cause of action to federal court. "Title 28 U.S.C. § 1442(a)(1) 'grants independent jurisdictional grounds over cases involving federal officers where a district court otherwise would not have jurisdiction.'" Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224, 1230 (8th Cir. 2012) (quoting Johnson v. Showers, 747 F.2d 1228, 1229 (8th Cir. 1984)). As stated above, § 1442 allows removal of an action to federal court where the action is against an officer, or a person acting under that officer, "of the United States or of any agency thereof, in an official or individual capacity, for or relating to 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 plaintiffs claims, and (4) the defendant is a 'person,' within the meaning of the statute." Id. (citing Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 967 n. 2 (8th Cir.2007)).

         The Court finds that all four elements are satisfied in this case. Defendant Frame is a natural person and an employee of the USPS, which is "an independent establishment of the executive branch of the Government of the United States." 39 U.S.C. § 201. In addition, Defendant is a supervisor for the USPS, and therefor Defendant "is, or acts under the direction of, a federal official or officer of the United States." Cubb v. Denise Belton, No. 4:15 CV 676 JMB, 2015 WL 4079077, at *2 (E.D. Mo. July 6, 2015) (citation omitted). Further, Plaintiffs allegations relate solely to acts which occurred in the workplace which Defendant performed under the color of his office, thus establishing a causal connection between Defendant's actions and his exercise of official authority. As such, the Court finds that the first, second, and fourth elements are satisfied.

         Likewise, Defendant has raised a plausible federal defense. In his Notice of Removal, Defendant raises the defense of sovereign immunity and further claims that Plaintiff has failed to exhaust her administrative remedies under the Civil Service Reform Act or Title VII. The United States Postal Service enjoys federal sovereign immunity unless it waives such immunity. Dolan v. U.S. Postal Service, 546 U.S. 481, 484 (2006) (citations omitted). Further, "[a] suit against a government officer in her official capacity is really 'a suit against the official's office,' and so officers acting within their authority generally also receive sovereign immunity." Hendy v. Bello, 555 Fed.Appx. 224, 226 (4th Cir. 2014) (quoting Will v. Mich. Dep 't of State Police, 491 U.S. 58, 71 (1989)). The defense of sovereign immunity is sufficient to support removal. See Medina v. Hardy, No. 4T7CV00824 AGF, 2017 WL 2778094, at *2 (E.D. Mo. June 27, 2017) (finding that defendant's amended notice of removal asserting sovereign immunity as a federal defense supported federal officer removal). Thus, the Court concludes that removal was proper.

         B. Subject ...


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