Hamilton v. Yates et al

Filing 11

FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 6 Opposition to Defendants' Notice of Removal be Denied signed by Magistrate Judge Michael J. Seng on 1/16/2012. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/3/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL C. HAMILTON,

CASE NO.

1:10-cv-01925-LJO-MJS (PC)

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FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S OPPOSITION TO
DEFENDANTS’ REMOVAL OF THIS
MATTER

Plaintiff,

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v.
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(ECF No. 6)
J.A. YATES, et. al.,

OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Defendants.
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/
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Plaintiff Paul C. Hamilton (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action in Kings County

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Superior Court on July 14, 2008. (Notice of Removal, ECF No. 2 at 1.) Defendants were

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served on or about February 26, 2009. (Id. at 2.) Defendants filed a Notice of Removal

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on March 30, 2009 (1:09-cv-00579-LJO-SMS), but the action was later remanded back to

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State Court. (Id.) While on remand, Defendants filed a demurrer, and in Plaintiff’s

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opposition, he stated that he was bringing a claim under the United States Constitution.

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(Id.) The Superior Court ultimately granted the Defendants’ demurrer and estopped

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Plaintiff from bringing claims under the United States Constitution. (Id.) On appeal, the

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Fifth District Court of Appeal upheld the lower court’s decision and found that Plaintiff was

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basically asserting a claim under 42 U.S.C. § 1983. (Id.) The Fifth District Court Of

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Appeal’s decision became final on October 12, 2010. (Id.)

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Since it appeared that the State Court would now allow Plaintiff to make section

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1983 claims, Defendants again filed a Notice of Removal on October 14, 2010. (ECF No.

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1.) Plaintiff has since filed an Opposition to the Notice of Removal on October 25, 2010

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(ECF No. 6) and Defendants filed a Response to Plaintiff’s Objections (ECF No. 7).

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Plaintiff’s Opposition to the Notice of Removal is now before the Court.

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I.

REMOVAL TO FEDERAL COURT WAS PROPER

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Plaintiff filed an Opposition to the Notice of Removal, contending that removal of his

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state law claims was improper, and that the removal should be denied as it previously had

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been. (Opp’n, ECF No. 6 at 4.) Plaintiff filed his Complaint in California state court on July

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14, 2008. (Notice of Removal at 1) A copy of the Complaint was served on Defendants

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on February 26, 2009. (Id. at 2.) Defendants originally removed the case to federal court

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on March 30, 2009, but it was later remanded back to state court. (Id.) After Defendants’

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demurrer was granted and the decision was upheld on appeal, Defendants again removed

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this case to federal court. (Id.)

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The Complaint and other documents filed in this reflect that subject matter

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jurisdiction exists in federal court because Plaintiff alleges violation of his federal

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constitutional rights. 28 U.S.C. §§ 1441, 1442. A defendant may remove any civil action

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brought in state court over which the federal court would have original jurisdiction. 28

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U.S.C. § 1441(a). That is, a civil action that could have originally been brought in federal

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court may be removed from state to federal court. A federal court has original jurisdiction

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“of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28

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U.S.C. § 1331.

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Plaintiff does not directly allege federal constitutional violations in his Complaint, but

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in later documents filed in his action it is clear that his claims arise under and allege

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violation of the federal constitution. (Notice of Removal at 2.) Thus, subject matter

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jurisdiction is proper in federal court.. Plaintiff appears to be making claims under the

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Equal Protection Clause of the Fourteenth Amendment, to allege inhumane prison

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conditions in violation of the Eighth Amendment, and to claim retaliation in violation of the
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First Amendment. (Id. at Ex. A.) , Defendants removed the action from state court within

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30 days of receiving notice that the case had become removable. 28 U.S.C. § 1446(b).

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As this case was properly removed to federal court, Plaintiff's Opposition to Defendants’

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Notice of Removal should be denied.

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V.

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FINDINGS AND RECOMMENDATIONS
Accordingly, the undersigned hereby RECOMMENDS that Plaintiff’s Opposition to

Defendants’ Notice of Removal (ECF No. 6.) be DENIED.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Not

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later than fourteen days of entry of this Order, any party may file written objections with the

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court and serve a copy on all parties. Such a document should be captioned “Objections

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to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall

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be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

January 16, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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