Magee v. Flores et al

Filing 22

FINDINGS and RECOMMENDATIONS Denying Plaintiff's MOTIONS for Reconsideration and to Remand 15 , 19 , 20 , signed by Magistrate Judge Michael J. Seng on 3/1/12. Referred to Judge Ishii; Objections Due Within Fourteen-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RUCHELL CINQUE MAGEE,

CASE NO.

1:11-cv-01239-AWI-MJS (PC)

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FINDINGS AND RECOMMENDATIONS
DENYING PLAINTIFF’S MOTIONS FOR
RECONSIDERATION AND TO REMAND

Plaintiff,

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v.

(ECF Nos. 15, 19 & 20)

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OBJECTIONS DUE WITHIN FOURTEENDAYS

PETER FLORES, et al.

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Defendants.
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Plaintiff Ruchell Cinque Magee (“Plaintiff”) is a state prisoner proceeding pro se in
this civil rights action pursuant to 42 U.S.C. § 1983.

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Plaintiff filed the instant action in San Francisco Superior Court on January 14,

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2011. (Notice of Removal, ECF No. 1 at 1.) Service on all of the Defendants was

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completed on March 21, 2011. (Id. at 1.) On April 20, 2011, Defendants filed a Notice of

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Removal in the United States District Court for the Northern District of California. (Id.) On

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May 18, 2011, Plaintiff filed a motion to remand. (ECF No. 5.) On June 3, 2011, this case

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was reassigned to the Eastern District of California and Plaintiff’s motion to remand was

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denied. (ECF Nos. 10 & 11.)

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On August 12, 2011, Plaintiff filed a motion for reconsideration regarding the denial

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of his motion to remand. (ECF No. 15.) On September 16, 2011 and September 19, 2011,

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Plaintiff filed two new motions to remand the matter back to state court. (ECF Nos. 19 &

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20.) Defendants have failed to file any oppositions to Plaintiff’s motions. Plaintiff’s motions

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are now before the Court.

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I.

MOTION FOR RECONSIDERATION

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that

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justifies relief. Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances . . .” exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation

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omitted). The moving party “must demonstrate both injury and circumstances beyond his

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control . . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration

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of an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such prior

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motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

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(internal quotations marks and citations omitted), and “[a] party seeking reconsideration

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must show more than a disagreement with the Court’s decision, and recapitulation . . . ” of

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that which was already considered by the Court in rendering its decision.

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Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

U.S. v.

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Plaintiff has provided no intelligible grounds or arguments supporting his motion for

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reconsideration. He has not shown clear error or other meritorious grounds for relief. He

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has not met his burden as a party moving for reconsideration. Marlyn Nutraceuticals, Inc.,

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571 F.3d at 880. Plaintiff’s motion for reconsideration (ECF No. 15) should therefore be

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denied.

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II.

MOTIONS TO REMAND

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Plaintiff has filed two motions to remand this matter to state court. (ECF Nos. 19

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& 20.) Neither motion contains any legal argument. They are made up primarily of a
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variety of insults against judges and the judicial system.

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Plaintiff filed his Complaint in California state court on January 14, 2011. (Notice

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of Removal, ECF No. 1 at 1.) Service on all of the Defendants was completed on March

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21, 2011. (Id. at 1.) Defendants filed a Notice of Removal on April 20, 2011 with the

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United States District Court for the Northern District of California. (Id.)

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The Complaint in this case facially supports that subject matter jurisdiction exists in

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federal court because Plaintiff alleges violation of his federal constitutional rights. 28

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U.S.C. §§ 1441, 1442. A defendant may remove any civil action brought in state court over

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which the federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a

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civil action that could have originally been brought in federal court may be removed from

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state to federal court. A federal court has original jurisdiction “of all civil actions arising

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under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

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

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Plaintiff’s causes of action primarily arise under the First, Eighth, and Fourteenth

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Amendments of the United States Constitution. (Notice of Removal, Ex. A) Subject matter

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jurisdiction is proper in federal court since these allegations can be brought pursuant to

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42 U.S.C. § 1983, even though Plaintiff does not explicitly cite to this statute in his

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Complaint. Further, Defendants removed the action from state court within 30 days of

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receiving notice of the filing of this action. 28 U.S.C. § 1446(b). As this case was properly

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removed to federal court, Plaintiff's motions to remand should be denied.

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V.

FINDINGS AND RECOMMENDATIONS

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Accordingly, the undersigned hereby RECOMMENDS the following:

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1.

Plaintiff’s motion for reconsideration (ECF No. 15) be DENIED; and

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2.

Plaintiff’s motions to remand (ECF Nos. 19 & 20) 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).

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Within 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

March 1, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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