Opinion
Civ. No. 98-2928 (DRD).
December 28, 1998
David G. Wilson, South Woods State Prison, #200638, South Bridgeton, N.J., Pro Se Plaintiff.
Richard Seltzer, Esq., Assistant Township Attorney, Township of Montclair, Montclair, N.J., Attorneys for Defendants.
OPINION
In this Section 1983 action, a pro se prisoner is suing several police officers for allegedly using excessive force when they placed him under arrest. The police officers, Thomas Russo, James Lalor, Rocco Miscia, and Sean Nickson ("Defendants"), have moved to stay or dismiss this action on the grounds that a parallel action is currently proceeding in the Superior Court of New Jersey. The motions are to be disposed of on the papers without oral argument pursuant to Fed.R.Civ.P. 78. Plaintiff cross-moved to remove his state court action to the federal court.
I. BACKGROUND
Defendants in this matter are all members of the Montclair Township Police Department and were allegedly involved in the apprehension and arrest of the plaintiff, David G. Wilson ("Wilson"), on March 17, 1998. On that date, Wilson was arrested and charged with receiving stolen property, possession of drug paraphernalia, resisting arrest, possession of burglar's tools, aggravated assault, and robbery. See Seltzer Cert. ¶ 2. Wilson is currently incarcerated in the South Woods State Prison as a result of a parole violation arising from a burglary conviction on September 11, 1992. Id.
Wilson alleges that on the date of his arrest by the Montclair Police, Defendants used excessive force when bringing him into custody. Id. Exhibit F. Wilson claims that Officer Nickson began beating him while he was handcuffed and lying on the ground and that the beating continued in both the back of the police car and in the police station. Id. Wilson alleges that as a result of this abuse, he required medical attention at a local hospital. Id. Additionally, Wilson claims that the remaining defendants stood by and watched Nickson beat him and failed to stop the battery. Id.
Wilson filed a civilian complaint with the Internal Affairs Unit of the Montclair Police Department alleging that excessive force was used when he was arrested. Id. ¶ 6. Wilson, in his complaint to the police department, requested that an investigation be conducted into the circumstances surrounding his arrest. Id. Subsequent to filing this internal affairs complaint, Wilson filed an action against Defendants in the New Jersey Superior Court, pursuant to the New Jersey Tort Claim Act, as amended, N.J.S.A. 59:1-1 et seq. On or about the same date, Wilson filed a complaint pursuant to 42 U.S.C. § 1983, against the same defendants, in this court. Although the two lawsuits assert different causes of action, both arise out of the alleged excessive use of force by Defendants.
II. DISCUSSION
Defendants have moved to stay or dismiss Wilson's complaint on the ground that the state and federal lawsuits are identical in their nature. Specifically, Defendants contend that because the two lawsuits arise out of the exact same events, only one suit should be permitted to proceed. In response to this motion, Wilson has submitted a "notice of motion for removal." Wilson is seeking to remove his state court action and join it with the case at bar.
It is unquestioned that state courts have concurrent jurisdiction with federal courts over the disposition of § 1983 claims. See Maine v. Thiboutot , 448 U.S. 1, 3 n. 1, 100 S.Ct. 2502, 2503-04 n. 1, 65 L.Ed.2d 555 (1980); Jones v. Holvey , 29 F.3d 828, 831 (3d Cir. 1994).
To the extent that Defendants' motion seeks dismissal of this case, it raises the issue of abstention. Abstention is considered "the exception and not the rule," City of Houston v. Hill, 107 S.Ct. 2502, 2512-13, because ordinarily a plaintiff may make his own choice between a federal and state forum for vindicating his federal constitutional rights.
There are four separate areas in which a federal court should consider abstaining from federal claims and allowing the controversy to proceed in the first instance in the state courts. These areas are (I) Pullman abstention, Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), (ii) Burford abstention, Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424, reh'g denied, 320 U.S. 214, 63 S.Ct. 1442, 87 L.Ed.2d 1851 (1943), (iii) Younger abstention, Younger v. Harris, 401 U.S. 37, 91 S.Ct. 756, 27 L.Ed.2d 669 (1971), and (iv) Colorado River abstention, Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483, reh'g denied, 426 U.S. 912, 96 S.Ct. 2239, 48 L.Ed.2d 839 (1976). A substantial body of case law elaborates the circumstances when abstention is required in each of these areas. Despite the delicacy and complexity of these abstention issues, Defendants failed to submit a brief in support of their motion to dismiss or even to recognize that in order to prevail it would be necessary to establish Pullman, Burford, Younger, orColorado River grounds for abstention. It is readily apparent that this is not one of these exceptional cases in which a federal court should abstain under any of these doctrines. Consequently, Defendants' motion to dismiss will be denied.
As for a stay of these proceedings, in the record it is noted that Wilson filed his federal action before he filed his state court action, and if a rule of priority were to be followed, the state court action rather than this one would be stayed. In theory a plaintiff can pursue one claim in one court and another claim in another court. Where the claims arise out of the same operative facts there arises the inconvenience and burden of duplicative discovery efforts and overlapping trials.
In the present case the parties run an additional risk. The facts established in the first case to be tried may well bind the parties in the other action by virtue of the doctrine of collateral estoppel. Further, if a judgment is rendered in the state action on the New Jersey Tort Claims Act, the effect of that judgment might be to preclude Wilson from proceeding with his federal § 1983 action. He could have raised his § 1983 claim in the state proceeding and, in the event of a judgment in that proceeding, his failure to do so might preclude him from pursuing those claims elsewhere. In other words, Wilson would be well advised to pursue all his claims in one proceeding, either by amending his state complaint to add a § 1983 claims or by amending his federal complaint to add a New Jersey Torts Claims Act claim. In any event there is no basis to stay the federal proceeding and Defendants' motion for a stay will be denied.
In response to Defendants' motion to stay or dismiss this action, Wilson submitted a cross-motion to remove his state court action to federal court. In his cross-motion, Wilson requests that his state action be "move[d] . . . to federal court and combind [sic] with 1983 civil complaint." Civil actions filed in a state court can generally be removed to a federal court in that state if the district courts of the United States have original jurisdiction. See 28 U.S.C. § 1441 (1992); Brown v. Francis, 75 F.3d 860, 864 (3d Cir. 1996); Rosebud Holding, L.L.C. v. Burks, 995 F. Supp. 465, 466 (D.N.J. 1998); Independent Mach. Co. v. International Tray Pads Packaging, Inc., 991 F. Supp. 687, 690 (D.N.J. 1998). Wilson's state court complaint cannot be removed for two reasons. First, only a defendant is permitted to remove an action from state court. Ketec, Inc. v. Sentech Corp., 995 F. Supp. 485, 486 n. 5 (D.N.J. 1998). "It is clear beyond a peradventure of a doubt that the right of removal is vested exclusively in defendants." Geiger v. Artco Enter., Inc., 910 F. Supp. 130, 131 (S.D.N.Y. 1996). Because Wilson is the plaintiff in the state court matter, he cannot remove that case to federal court.
Second, even if Wilson were permitted to remove his action from state court, the federal courts would lack the required original jurisdiction to hear the case. In order to remove a case to federal court there must be original subject matter jurisdiction. Lauchheimer v. Gulf Oil, 6 F. Supp.2d 339, 342 (D.N.J. 1998); Rosebud Holding, 995 F. Supp. at 466; Independent Mach., 991 F. Supp. at 690. Because Wilson's state court tort action does not involve a federal question and it appears that he and the Defendants are citizens of the same state for diversity of citizenship purposes, this court would not have had the requisite original subject matter jurisdiction necessary to hear Wilson's state court case.
In his moving papers, Wilson makes a "request to the court that if Plaintiff has to withdraw one of his complaints then Plaintiff would request to withdraw Tort complaint [a]nd proceed with this matter in federal." In view of Wilson's evident wish to proceed in this court, his motion to remove the state tort claim will be treated as a motion to file an amended complaint which will incorporate both the § 1983 and New Jersey Tort Claims Act claims. He can then dismiss his state court action and all his claims can be disposed of in one proceeding. Before pursuing this course, however, Wilson should determine whether filing a state tort complaint at this time would subject his state law claim to defenses which are not available against the complaint now pending in the state court.
III. CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss the complaint or for a stay will be denied. Wilson's motion will be treated as a motion to file an amended complaint incorporating both his § 1983 and New Jersey Tort Claims Act claims. Wilson, if he elects to do so, may file such an amended complaint within thirty (30) days of his receipt of this opinion. Defendants shall have twenty (20) days to answer or otherwise move with respect to the amended complaint. I shall file an order implementing this opinion.
O R D E R
Defendants Thomas Russo, James Lalor, Rocco Miscia, and Sean Nickson ("Defendants"), having moved to stay or dismiss this action; and plaintiff, David G. Wilson ("Plaintiff"), having cross-moved to remove his state court action to this court; and the Court having considered all papers submitted; and in accordance with this Court's opinion of even date;
IT IS this day of December, 1998, hereby
ORDERED that Defendants' motion to stay or dismiss this action pending the outcome of the parallel state court proceeding be and hereby is DENIED; and it is further
ORDERED that Plaintiff's cross-motion will be treated as a motion for leave to file an amended complaint, and Plaintiff may, within thirty (30) days of his receipt of the opinion accompanying this order, file an amended complaint setting forth his claims brought pursuant to the New Jersey Tort Claims Act; and it is further
ORDERED that Defendants shall have twenty (20) days after service upon them of the amended complaint to answer or otherwise move with respect to the amended complaint.