Nikas v. Quinlan, etc.
Opinion
USCA1 Opinion
June 27, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2395
JOHN NIKAS,
Plaintiff, Appellant,
v.
MICHAEL QUINLAN, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________
____________________
Before
Torruella, Boudin and Stahl,
Circuit Judges.
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____________________
John Nikas on brief pro se.
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Donald K. Stern, United States Attorney, and Mary Elizabeth
_________________ _______________
Carmody, Assistant United States Attorney, Senior Litigation Counsel,
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on brief for appellees.
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____________________
Per Curiam. Plaintiff-appellant John Nikas is a
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Massachusetts inmate who began serving his sentence in a
state correctional institution but was later transferred to a
federal prison. In 1992, while still in federal custody,
Nikas brought this pro se suit in the Massachusetts Superior
___ __
Court alleging various violations regarding state-to-federal
transfer and classification procedures, as well as his
continuing federal confinement. The Superior Court docket
indicates that the case, Nikes (sic) v. Vose, Commr of
_____ ________________
Corrections, et al., No. 92-01988, was filed on April 1,
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1992. The fourteen named defendants fell into two
categories: Vose, et al, (seven state defendants), and
Quinlan, et al, (seven federal defendants). On August 3,
1992, the United States, acting on behalf of Quinlan and
federal defendant Keohane -- both were, at the time of acts
alleged in the complaint, in the employ of the Federal Bureau
of Prisons -- removed the case to federal district court
pursuant to 28 U.S.C. 1442(a)(1), the general federal
officer removal statute.1
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1. Section 1442 provides in pertinent part:
(a) A civil action or criminal prosecution commenced in a
State court against any of the following persons may be
removed by them to the district court of the United States
for the district and division embracing the place wherein it
is pending:
(1) Any officer of the United States or any
agency thereof, or person acting under him, for any
act under color of such office or on account of any
right, title or authority claimed under any Act of
Congress for the apprehension or punishment of
criminals . . . .
(continued...)
-2-
The removal petition was captioned: Nikas v.
_____
Quinlan, et al., and the case was docketed as such in the
________________
district court. On October 5, 1992, the federal defendants
moved to dismiss, and, on October 21, 1992, the district
court endorsed the motion as follows:
Motion to Dismiss is granted
for insufficiency of service of
process. Case is closed.
Nikas' intervening motion (captioned Nikas v. Vose, et al.),
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filed October 16, 1992, objecting to an earlier procedural
order and demanding that the case be remanded to state court
on abstention grounds, was not ruled upon. Judgment entered
on all claims for the federal defendants and this appeal was
taken by Nikas.
Although we see no impropriety in the removal
itself, we do not reach the merits of the appeal since, as
the above recitation suggests, the judgment of the district
court is not final and this court lacks appellate
jurisdiction. When the United States exercised its
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1. (...continued)
28 U.S.C. 1441(a)(1). Since Nikas sued the federal
officers solely in their individual capacities, the complaint
was subject to removal under 1442(a)(1). See Conjugal
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Partnership v. Conjugal Partnership, F.3d , No. 93-
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1404, slip op. at 11 (1st Cir. May 4, 1994). In addition to
granting independent jurisdiction over state-court cases
involving federal officers, a 1442(a)(1) removal to federal
court creates ancillary jurisdiction over the non-federal
elements of the controversy. IMFC Professional Services v.
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Latin American Home Health, 676 F.2d 152, 158 (5th Cir.
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1982).
-3-
prerogative under 1442(a)(1), the entire case, embracing
all claims against all parties, federal and non-federal, was
transferred to federal court. Polyplastics v. Transconex,
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713 F.2d 875, 877 (1st Cir. 1983); Murphy v. Kodz, 351 F.2d
______ ____
163, 166-67 (9th Cir. 1965); see also Arango v. Guzman Travel
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