Merrick v. Ryan et al
Filing
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ORDER that Plaintiff's 8 Motion Amend and Motion to Remand to State Court is granted. The Clerk of Court must file Plaintiff's Amended Complaint. Plaintiff's 4 Motion to Remand is granted. This matter is remanded to the Sup erior Court of Maricopa County, Arizona. The Clerk must mail a certified copy of this Order to the Clerk of the Superior Court Maricopa County and close this case. Signed by Senior Judge Stephen M McNamee on 4/17/2014. (Attachments: # 1 Remand Letter)(LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Anthony Merrick,
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Plaintiff,
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No. CV 13-2386-PHX-RCB (BSB)
vs.
ORDER
Charles L. Ryan, et al.,
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Defendants.
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I.
Procedural History
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On November 20, 2013, Defendants Hetmer, Miser, Ryan, Henderson, Stephan,
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and Linderman (“the Removing Defendants”) filed a Notice of Removal of this case from
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the Superior Court of Maricopa County, Arizona. On November 27, 2013, Defendants
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Kidwell, Webster, and Zaborsky filed a Notice of Joinder indicating that they consented
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to and joined in removal.
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On December 6, 2013, Plaintiff filed an Objection to the notice of removal and a
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Motion to Remand (Doc. 4). On January 17, 2014, Plaintiff filed a “Motion to Amend
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Complaint and Request for Remand to the State Court” (Doc. 8) and a proposed
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Amended Complaint.
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II.
Amended Complaint and Remand
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In his Motion to Amend, Plaintiff asks that the Court allow him to amend his
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complaint to “eliminate any and all federal statutes and laws,” and that the Court remand
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this action to state court. Plaintiff’s proposed amended complaint raises the same claims
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raised in his original Complaint but relies on entirely on state law. In the lodged First
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Amended Complaint, Plaintiff claims Defendants denied him various religious materials
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and practices, denied him due process, and violated his right to equal protection of the
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laws, in violation of Arizona Revised Statutes §§ 12-542 and 41-1493.01, and article 2,
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sections 12, 32, and 33, and article XX, section 1 of the Arizona Constitution.
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On February 3, 2014, Defendants filed a Response to Plaintiff’s Motion to Amend
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in which they ask the Court deny Plaintiff’s Motion to Amend and Remand. Defendants
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argue that Plaintiff does not make any changes to his factual allegations and that simply
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removing references to federal law does not divest this Court of jurisdiction. Defendants
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argue that Plaintiff “is alleging that the Defendants violated his First Amendment rights
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and 42 U.S.C. § 1983 is the only vehicle to provide a remedy for the deprivation of
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‘rights, privileges, or immunities secured by the Constitution.’” Resp. at 2.
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Where the original Complaint has been served, Rule 15(B)(2) of the Federal Rules
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of Civil Procedure provides that “a party may amend its pleading only with the opposing
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party’s written consent or the court’s leave. The court should freely give leave when
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justice so requires.” Given the early stage of these proceedings (Defendants have not yet
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been required to file an answer), the Court will grant the Motion to Amend and direct the
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Clerk of Court to file Plaintiff’s First Amended Complaint.
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Although “jurisdiction must be analyzed on the basis of the pleadings filed at the
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time of removal without reference to subsequent amendments” and “a plaintiff may not
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compel remand by amending a complaint to eliminate the federal question upon which
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removal was based,” Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d
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1209, 1213 (9th Cir. 1998), “a district court has discretion to remand to state court a
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removed case involving pendent claims upon a proper determination that retaining
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jurisdiction over the case would be inappropriate.” Carnegie-Mellon Univ. v. Cohill, 484
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U.S. 343, 357 (1988). “[W]hen the federal-law claims have dropped out of the lawsuit in
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its early stages and only state-law claims remain, the federal court should decline the
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exercise of jurisdiction by dismissing the case without prejudice.” Id. at 350 (footnote
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omitted).
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Arizona’s Free Exercise of Religion Act (“FERA”), Ariz. Rev. Stat. § 41-1493.01,
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was passed in 1999 “to protect Arizona citizens’ right to exercise their religious beliefs
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free from undue governmental interference.” State v. Hardesty, 222 Ariz. 363, 365 (Ariz.
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2009). FERA’s key provision “permits the government to burden the exercise of religion
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only if the ‘application of the burden to the person is both . . . [i]n furtherance of a
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compelling governmental interest [and] [t]he least restrictive means of furthering that
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compelling governmental interest.’” Id. at 365-66; Ariz. Rev. Stat. § 41-1493.01(C).
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FERA potentially provides Plaintiff greater religious protections than those in the First
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Amendment, which requires only that the government have a reasonable justification
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related to a legitimate penological interest before restricting a prisoner-plaintiff from
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engaging in a sincerely held religious belief. Shakur v. Schriro, 514 F.3d 878 (9th Cir.
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2008).
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Regardless of whether Plaintiff may be attempting to manipulate the forum by
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deleting his federal-law claim, the Court, in its discretion, concludes that on balance,
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remand of the First Amended Complaint, which contains only state-law claims, “best
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serves the principles of economy, convenience, fairness, and comity which underlie the
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pendent jurisdiction doctrine.” Cohill, 484 U.S. at 357. Accordingly, the Court concludes
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that Plaintiff may a raise a claim for denial of religious materials and practices based
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solely Arizona constitutional and statutory rights. Thus, the Court will remand this case
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to the Maricopa County Superior Court.
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IT IS ORDERED:
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(1)
Plaintiff’s January 17, 2014 Motion Amend and Motion to Remand to State
Court (Doc. 8) is granted.
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The Clerk of Court must file Plaintiff’s Amended Complaint (attached to
Doc. 8).
(3)
Plaintiff’s December 6, 2013 Motion to Remand (Doc. 4) is granted.
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(4)
This matter is remanded to the Superior Court of Maricopa County,
Arizona.
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The Clerk of Court must mail a certified copy of this Order to:
Michael K. Jeanes
Clerk of the Superior Court
Maricopa County, Arizona Superior Court
201 West Jefferson
Phoenix, Arizona 85003-2205
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(6)
The Clerk of Court must close this case.
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DATED this 17th day of April, 2014.
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