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Gibson v. Doliver

United States District Court, D. Connecticut

April 1, 2019

EUGENE GIBSON and S.G., Plaintiffs,
ABBY DOLLIVER, et al., Defendants.


          Janet C. Hall United States District Judge


         On 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.

         On 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.

         On 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.

         The 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.

         For the 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 moot.

         II. BACKGROUND[1]

         S.G. is 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.

         When 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. Id.

         Although 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.


         Under 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 113.

         IV. ...

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