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McQueen v. Rosica

July 20, 2010

RONNEY MCQUEEN, PLAINTIFF,
v.
IRONDEQUOIT POLICE DEPARTMENT OFFICER ROSICA, DEFENDANT.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This case is before the Court by Defendant's Notice of Removal. Defendant has moved (Docket No. 3) to dismiss the case because of lack of proper service on him, and because Plaintiff failed to properly file the original complaint in state court. For the reasons below, the application is granted.

FACTUAL BACKGROUND

In his Notice of Removal, Defendant states the following:

1. On or after June 27, 2008, plaintiff, Ronney McQueen, delivered by ordinary mail suit papers by which he purportedly commenced an action against defendants in the Supreme Court for the State of New York, Monroe County, together with an application to proceed as a poor person and affidavit of service. Copies of plaintiff's summons and complaint, application to proceed as a poor person, and affidavit of service are attached hereto as Exhibits A, B, and C respectively.

2. The summons and complaint, and application to proceed as a poor person were received by defendants on or about July 1, 2008.

3. At paragraph 8 of plaintiff's complaint, he alleges "at all relevant times herein, defendants Irondequoit Police Department acted under color of state when Office Rosica of the Irondequoit Police Department deprived plaintiff of his constitutional right by assaulting him during an arrest where no misconduct took place as set forth more fully below."

4. The above described language indicates that this Court has original jurisdiction under the provisions of title 28 United States Code §1331.

5. This action is removable pursuant to 28 U.S.C §1441.

6. Attached as Exhibit D is an index of documents which were purported to have been filed in the Supreme Court for the State of New York in the County of Monroe.

WHEREFORE, defendants, pray that the above action, which was purported to have been commenced against them in the Supreme Court for the County of Monroe, State of New York, be removed to the United States District Court for the Western District of New York. (Notice of Removal, at 1--2.) Attached are a handwritten "Summons" with a blank space for the index number, and a handwritten complaint alleging that on March 28, 2008, Plaintiff was subject to racial profiling by Defendant, who approached the car in which Plaintiff and his girlfriend were sitting and which was parked in front of Plaintiff's residence. Plaintiff alleges that he entered his residence to obtain his identification to prove his identity in case it was requested by Defendant. What Plaintiff recounts next is an allegation of excessive police force and failure to treat a serious medical need by Defendant, who sprayed mace in Plaintiff's face after Plaintiff questioned Defendant's allegedly aggressive behavior. When arrested, Plaintiff contends that Defendant placed the handcuffs on him so tightly, it caused swelling and cuts to Plaintiff's hands and wrists, and that the cuffs were left on Plaintiff for three hours.

Also attached to the Notice of Removal is an Affidavit of Service in which Plaintiff wrote, "On 2008, I served the within Summons and Complaint upon the defendant(s) by certified mail No. Return receipt requested at the following address: 130 S. Plymouth Ave., Rochester, New York 14614 said address bing the address designated by the Plaintiff for that purpose, by depositing a true copy of the within in a post paid properly addressed wrapped in an official depository [sic] under the exclusive care and custody of the United States Postal Service within the State of New York." The ...


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