United States District Court, D. Connecticut
RULING RE: MOTION TO DISMISS (DOC. NO. 21), MOTION TO
DISMISS (DOC. NO. 26), MOTION FOR SUMMARY JUDGMENT (DOC. NO.
29), MOTION TO DENY NOTICE OF REMOVAL ON JURISDICTION (DOC.
C. Hall United States District Judge
October 9, 2018, the plaintiffs, Eugene Gibson
(“Gibson”) and his daughter (“S.G.”),
filed this pro se action in Connecticut Superior
Court against the defendants, Abby Dolliver
(“Dolliver”), Jamie Bender
(“Bender”), and Nakia Hamelett
(“Hamelett”). See generally Complaint
(“Compl.”) (Doc. No. 1-1). The Complaint asserts
a variety of federal and state law claims against the
defendants, all of which are predicated on the
defendants' alleged failure to provide S.G. with adequate
special education services. See id. at 4-6, 17.
November 6, 2018, Dolliver and Bender filed a Notice of
Removal, which Notice indicated that Hamelett had also
consented to removing the action from Connecticut Superior
Court to this court. See Notice of Removal (Doc. No.
1) at ¶ 7. On January 9, 2019, Hamelett moved to dismiss
the Complaint under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. See Motion to
Dismiss (“Hamelett's Mot. to Dismiss”) (Doc.
No. 21). That same day, Dolliver and Bender also moved to
dismiss all of the plaintiffs' claims or, in the
alternative, to strike certain allegations from the Complaint
under Rule 12(f) and to order a more definite statement under
Rule 12(e). See Motion to Dismiss (“Dolliver
& Bender's Mot. to Dismiss”) (Doc. No. 26);
see also Memorandum of Law in Support of Defendants
Abby Dolliver's and Jamie Bender's Motion to Dismiss,
Motion to Strike, and/or Motion for More Definite Statement
(“Dolliver & Bender's Mem.”) (Doc. No.
25) at 10.
January 29, 2019, this court held an in-person status
conference with the parties, during which time it raised
sua sponte the issue of whether the defendants'
removal of the case from state court had properly complied
with the rule of unanimity. See Minute Entry (Doc.
No. 32). On February 8, 2019, the defendants jointly filed a
memorandum of law addressing this issue. See Joint
Memorandum of Law in Support of Defendants' Notice of
Removal (“Defs.' Mem. on Removal”) (Doc. No.
34) at 1.
plaintiffs have not filed opposition papers to the
defendants' Motions to Dismiss, even though the
defendants notified them of the pending Motions, as required
by Rule 12(a) of the Local Civil Rules of the United State
District Court for the District of Connecticut. See
Notice to Self-Represented Litigant Concerning Motion to
Dismiss (Doc. Nos. 22, 24). The plaintiffs have, however,
filed various other documents. Specifically, on January 16,
2019, the plaintiffs filed a Motion for Summary Judgment
(Doc. No. 29). On March 11, 2019, they filed a document
titled “Motion to Deny Notice of Removal Based on
Jurisdiction, ” which document the court has
interpreted as a motion to remand the case to the Connecticut
Superior Court. See Motion to Deny Notice of Removal
on Jurisdiction (“Pls.' Mot. to Remand”)
(Doc. No. 38). Finally, on March 20, 2019, the plaintiffs
submitted a Letter (Doc. No. 39) that largely repeated the
arguments set forth in their Motion for Summary Judgment.
following reasons, the plaintiffs' Motion to Remand is
denied; the defendants' Motions to Dismiss for lack of
subject matter jurisdiction are granted; and the
plaintiffs' Motion for Summary Judgment is denied as
14 years old and currently a 9th grade high school student in
the Norwich Public Schools (“NPS”). See
Declaration of Jamie Bender (“Bender's
Decl.”) (Doc. No. 30) at ¶¶ 1, 3; Compl. at
6. Gibson is S.G.'s father. Bender's Decl. at ¶
1; Compl. at 5. Dolliver is the NPS Superintendent, Bender is
the NPS Director of Student Services and Special Education,
and Hamelett is a psychologist who was hired by the NPS to
evaluate S.G. in 2018. Bender's Decl. at ¶ 1.
S.G. was five years old, the NPS determined that she
qualified for special education services. Id. at
¶ 3. As a result, it created an Individualized Education
Program (“IEP”) for her. Id. In 2018,
the NPS ordered a formal Risk Assessment of S.G. in light of
S.G.'s behavior at school. Id. at ¶ 4. The
NPS also decided that, until the Risk Assessment was
completed, S.G. should not attend school, but should instead
receive 10 hours per week of homebound instruction.
the Complaint in this case is difficult to decipher, all of
the plaintiffs' claims appear to stem from these 2018
changes to S.G.'s IEP. See Compl. at 5 (alleging
that the defendants “have broken [the] law and code by
not providing the services [they] were hired to provide as
part of the special education”). In particular, the
plaintiffs allege that S.G. has not received any special
education since “being placed in home bound tutoring,
” id.; that S.G. has been wrongfully separated
from her high school peers, id. at 6; and that, as a
result, S.G. has experienced emotional distress, loss of
sleep, loss of productivity, pain and suffering, mental
anguish, and feelings of distress, anxiety, depression, and
grief, id. at 17. The Complaint seeks money damages
from the defendants, alleging that they have violated a
variety of state, federal, and international laws, including
the United Nations Declaration on the Rights of Indigenous
Peoples, id. at 12-13; the Thirteenth, Fourteenth,
and Fifteenth Amendments of the United States Constitution,
id. at 6-7; and Connecticut laws on fraud,
defamation, malpractice, and intentional infliction of
emotional distress. See id. at 8-10, 17-18.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1), “[a] case is
properly dismissed for lack of subject matter jurisdiction .
. . when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v.
United States, 201 F.3d 110, 113 (2d Cir. 2000). The
plaintiff bears the burden of proving the existence of
subject matter jurisdiction by a preponderance of the
evidence. Id. In determining whether the plaintiff
has met this burden, “the court must take all facts
alleged in the complaint as true and draw all reasonable
inferences in favor of [the] plaintiff.” Nat. Res.
Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.
2006). In addition, a district court “may refer to
evidence outside the pleadings” when “resolving a
motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1)[.]” Makarova, 201 F.3d at