MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
I. FACTS AND PROCEDURAL HISTORY
This cause is before the court on a Motion to Remand, filed by the Plaintiff, Michael Fuller (Doc. #7).
Fuller originally filed a Complaint in this case in the Circuit Court of Montgomery County, Alabama. (Doc. #1-3). Fuller has alleged that he was remanded to the custody of the Montgomery County Jail for his failure to appear at a child support hearing. While he was in the Montgomery County Jail, he was not given prescription medication for hypertension, and suffered a stroke as a result. He brings the following claims: Count I, Negligence; Count II, Wantonness; Count III, Nuisance; Count IV, Cruel and Unusual Punishment; Count V, Negligent Hiring, Training, and Supervision; and Count VI, Respondeat Superior. He seeks compensatory and punitive damages.
On February 25, 2016, the Defendants file a Notice of Removal, asserting that federal question subject matter jurisdiction exists in this case because in Count IV the Plaintiff asserts a claim pursuant to the Eighth Amendment to the United States Constitution for cruel and unusual punishment.
Count IV of the Complaint is pled as follows:
Count IV
Cruel and Unusual Punishment
30. Plaintiff realleges each and every paragraph above as if fully set forth herein.
31. The Plaintiff suffered a deprivation of rights, privileges or immunities secured to him by the Constitution of the United States and the laws of the State of Alabama.
32. Specifically, Plaintiff's denial of prescribed the medications of Lisinopril and Norvasc for his hypertension, despite Defendants' knowledge and awareness of Plaintiff's condition, constitutes a deprivation of the constitutional right against cruel and unusual punishment provided by the Eighth Amendment to the United States Constitution, which is made applicable to the states through the Fourteenth Amendment.
33. Furthermore, Plaintiff had an independent right to be free from cruel and unusual punishment through the Constitution of the State of Alabama, Article I, Section 15. 34. The Defendants, acting under color of law, caused the deprivation of Plaintiff's Right to be free from cruel and usual punishment by action and/or omission. The Defendants acting within this incident do not enjoy qualified immunity because of the violation of the clearly established constitutional rights to be free from cruel and unusual punishment in the form of languishing in jail without being provided necessary medications, which ultimately resulted in the Plaintiff's suffering a stroke.
35. As a result of the Defendants' nuisance of depriving Plaintiff of his medication for six (6) days, the Plaintiff has suffered injuries and damages including, but not limited to, severe physical ailments; physical pain and suffering; physical injury; medical expenses; loss of activity; rehabilitative expenses; plus internally or permanently injured/scarred.
WHEREFORE THE ABOVE PREMISES CONSIDERED, the Plaintiff demands judgment against the Defendants in an amount which exceeds the jurisdictional minimum of this Court and which the fact fmder shall determine as compensatory and/or punitive damages, plus interest and all costs of this proceeding.
(Doc. #1-3 at p.9-10).
Fuller filed a Motion to Remand, arguing that no federal claim has been alleged in this case, so there is no subject matter jurisdiction.
For reasons to be discussed, the Motion to Remand is due to be DENIED.
II. MOTION TO REMAND STANDARD
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (1994); Wymbs v. Republican State Executive Committee, 719 F.2d 1072, 1076 (11th Cir. 1983), cert. denied, 465 U.S. 1103 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.
III. DISCUSSION
Any claim that was originally filed in state court may be removed by a defendant to federal court if the case could have been filed in federal court originally. 28 U.S.C. § 1441(a). Where, as here, there is not complete diversity of citizenship, the defendant must show that federal question jurisdiction is present. 28 U.S.C. § 1441(b). Federal courts have federal question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
Fuller argues in his Motion to Remand that this court lacks subject matter jurisdiction because his claims are state law claims and a federal issue embedded in those claims does not support federal question jurisdiction.
"[W]here the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions . . . must entertain the suit." Bell v. Hood, 327 U.S. 678, 681-82 (1946).1The presence of a federal question is governed by the "well-pleaded complaint rule" which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009). Thus, "the plaintiff [is] the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law, even where a federal claim is also available." Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004).
This is not a case in which the plaintiff has pled only state-law claims. See Dunlap, 381 F.3d at 1291. Instead, as set out above, the face of the Complaint invokes the protections of the United States Constitution, identifies the Eighth Amendment as a specific constitutional amendment which has been infringed, and pleads Fourteenth Amendment incorporation of the Eighth Amendment to the states. (Doc. #1-3 at p.9). The Complaint goes on to state a separate state law claim, identifying "an independent right to be free from cruel and unusual punishment through the Constitution of the State of Alabama." Id. The federal claim, however, is asserted on the face of Fuller's well-pleaded complaint and gives rise to federal question subject matter jurisdiction.
IV. CONCLUSION
For the reasons discussed, the court concludes that a federal claim has been alleged in this case so that this court has subject matter jurisdiction pursuant to 28 U.S.C. §1331, and may exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. §1367.
Accordingly, it is hereby ORDERED that the Motion to Remand (Doc. #7) is DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
