Sanders v. MAGEC Metro Tatical Team et al

Filing 20

ORDER DENYING Plaintiff's 16 Motion To Obtain Montetary Sancitons, Remove Consolidated Case to Fresno County Superior Court and Remove the Stay Pending the Resolution of Plaintiff's Criminal Proceedings signed by Magistrate Judge Michael J. Seng on 10/24/2011. (Yu, L)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 PHILLIP SANDERS, CASE NO. 1:11-cv-184-LJO-MJS Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS TO OBTAIN MONETARY SANCTIONS, v. REMOVE CONSOLIDATED CASE TO FRESNO COUNTY SUPERIOR COURT AND MAGEC METRO TACTICAL TEAM, et al., REMOVE THE STAY PENDING THE RESOLUTION OF PLAINTIFF’S CRIMINAL Defendants. PROCEEDINGS. 13 / [ECF Nos. 15-16.] 14 15 16 Plaintiff Phillip Sanders initiated this action by filing a pro se Complaint on February 9, 2011. (ECF No. 1.) On April 1, 2011, the Court issued an order staying the case while 17 18 Plaintiff’s criminal proceedings related to acts which are the subject of the present 19 complaint are pending in Fresno County Superior Court. (ECF No. 7.) The Court ordered 20 Plaintiff to update the Court every 90 days regarding the status of his criminal proceeding. 21 On April 8, 2011, a second Complaint, originally filed by Plaintiff in Fresno County 22 Superior Court, was removed by Defendants to this Court. See Sanders v. Magec Metro 23 Tactical Team, EDCA Case No. 1:11-cv-00596-AWI-MJS. On May 25, 2011, the Court 24 consolidated the matter with the present case and continued the stay put in place on April 25 26 27 1, 2011. EDCA Case No. 1:11-cv-00596-AWI-MJS, ECF No. 10. On September 19, 2011, the Court issued an order to show cause why Plaintiff had 1 not filed a status report. (ECF No. 14.) In response to the order to show case, Plaintiff filed 2 two documents on October 5, 2011, one titled ““plaintiff object to court sanctions and 3 request award plaintiff moneys for court errors delaying plaintiff case missed scheduling 4 5 conference 7/14/11 and request move consolidated case back down to state level” and the 6 other titled, “second status update report and request court remove stay.” (ECF Nos. 15- 7 16.) The Court shall address each filing in turn. 8 In Plaintiff’s first filing he (1) objects to any sanctions from the Court, (2) requests 9 a monetary award from the Court, (3) and requests the Court remand the consolidated 10 case back to the Fresno County Superior Court. (ECF No. 15.) First, the Court is not going 11 12 13 to sanction Plaintiff since he did file a status report in response to the order to show cause. (ECF No. 16.) 14 Second, the Court DENIES Plaintiff’s request for a monetary award. Plaintiff seeks 15 to recover fees for his attendance at a status conference scheduled on July 14, 2011. On 16 May 25, 2011, over a month before the scheduled conference, the Court consolidated and 17 stayed the action. EDCA Case No. 1:11-cv-00596-AWI-MJS, ECF No. 10. The order 18 directed that the case be administratively closed. The closing of the case placed Plaintiff 19 20 21 on notice that the hearing was no longer on calendar. Plaintiff is not entitled to damages for his appearance at the hearing. 22 Finally, Plaintiff asserts that the consolidated matter should be remanded back to 23 state court. Plaintiff’s motion to remand the case to state court is DENIED. To the extent 24 Plaintiff challenges any aspect to the procedure in which the action was removed, the 25 motion is untimely as it was filed over thirty days after the notice of removal. See 28 U.S.C. 26 27 § 1447(c). Further, if Plaintiff is claiming that the Complaint lacks subject matter jurisdiction, 1 the motion to remand is likewise denied. Plaintiff has clearly stated claims that his federal 2 due process and other constitutional rights were violated. While the complaint may contain 3 some state law claims, the fact that federal claims are included creates federal question 4 5 jurisdiction, and removal was proper. 6 In Plaintiff’s other filing, he provides a status report and requests the Court to 7 remove the stay in place during the pendency of his criminal proceedings. In light of the 8 information presented in his status report and Defendants’ assertion in their opposition that 9 the criminal case is still pending, the Court DENIES Plaintiff’s request to lift the stay. 10 Plaintiff is instructed to file a third status report within 90 days of the service of this order, 11 12 and every 90 days thereafter until his criminal case is resolved. ORDER 13 14 For the reasons stated above, it is HEREBY ORDERED that: 15 1. Plaintiff’s request that he not be sanctioned is GRANTED; 16 2. Plaintiff’s request for sanctions is DENIED; 17 3. Plaintiff’s motion to remand the consolidated action to state court is DENIED; 18 4. Plaintiff’s motion to remove the stay is DENIED; and 19 20 5. Plaintiff is ORDERED to file a status report with the Court not later than ninety 21 days after the service of this order, and every ninety days thereafter regarding the 22 status of his criminal charges. 23 IT IS SO ORDERED. 24 25 Dated: 26 ci4d6 October 24, 2011 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 27 -3-

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