Williams v. Andrade, et al.
Filing
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FINDINGS and RECOMMENDATIONS Recommending that this Case be Remanded to Fresno County Superior Court re 2 , signed by Magistrate Judge Gary S. Austin on 11/25/13. Objections, If Any, Due Within Thirty Days. Referred to Judge O'Neill. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERRY WILLIAMS,
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Plaintiff,
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vs.
J. ANDRADE, et al.,
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Defendants.
1:13-cv-01892-LJO-GSA-PC
[Fresno Superior Court case #13CECG01419]
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
REMANDED TO FRESNO SUPERIOR COURT
(Doc. 2.)
OBJECTIONS, IF ANY, DUE WITHIN THIRTY
DAYS
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I.
BACKGROUND
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This is a civil action filed by plaintiff Gerry Williams (APlaintiff@), a state prisoner
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proceeding pro se. This action was initiated by civil Complaint filed by Plaintiff in the Fresno
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County Superior Court on April 11, 2013 (case #13CECG01419). On November 21, 2013,
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defendants Andrade, Black, Deathridge, May, Oxborrow, J. Rodriguez, R. Rodriguez,
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Rumbles, Shuler, Silveira, Webster, and Wisely (“Defendants@) removed the case to federal
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court by filing a Notice of Removal of Action pursuant to 28 U.S.C. ' 1441(a). (Doc. 2.)
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II.
PLAINTIFF’S ALLEGATIONS IN THE COMPLAINT
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Plaintiff is presently incarcerated at Kern Valley State Prison in Delano, California.
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The events at issue in the Complaint allegedly occurred at Pleasant Valley State Prison (PVSP)
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in Coalinga, California, when Plaintiff was incarcerated there. Plaintiff names as defendants J.
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Andrade, Sgt. Deathridge, J. Rodriguez, Lt. Webster, K. Shuler, M. Black, T. May, W.
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Oxborrow, J. Wisely, L. Rumbles, A. Silveira, and R. Rodriguez. All of the Defendants are
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employees of the California Department of Corrections and Rehabilitation at PVSP.
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Plaintiff makes the following allegations.
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On March 1, 2011, Plaintiff was moved into a cell with an inmate named Willis. On
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March 3, 2011, Plaintiff made a request to defendant Andrade for a cell move, due to Plaintiff’s
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safety concerns. Plaintiff told defendant Andrade that he and inmate Willis were not getting
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along in the assigned cell. Defendant Andrade denied Plaintiff’s request to be moved and told
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Plaintiff the only way to get moved was to have a fight with his cell mate.
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On March 6, 2011, Plaintiff went to the medical clinic at PVSP due to palpitations and
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chest pains. After returning from the clinic, Plaintiff told defendant Andrade that he had come
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close to fighting with inmate Willis, who was not compatible with Plaintiff. Plaintiff requested
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to be celled with a different cell mate, informing defendant Andrade that there was another
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inmate named Valencia willing to trade cells, to prevent violence. Defendant Andrade again
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denied Plaintiff’s request.
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Plaintiff asked inmate Willis if he would switch cells and accept inmate Valencia as a
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cell mate. Willis became violent and struck Plaintiff in the head, injuring Plaintiff’s head and
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jaw. After the incident, Plaintiff was interviewed by defendant Deathridge.
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Plaintiff was moved to cell 147 with a new cell mate. Defendant Wisely had told the
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new cell mate that Plaintiff was “a J-Cat in order to cause Plaintiff’s character to be
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assassinated,” so that no inmate of sound mind would want to cell with Plaintiff. (Complaint,
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Doc. 2 at 10 ¶20.) The new cell mate stole Plaintiff’s flat screen television and gave it to
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someone else. On March 14, 2011, the television was returned broken in pieces. Plaintiff filed
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an inmate grievance on form 602 reporting the events, which was denied/rejected on August
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11, 2011.
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On April 7, 2011, Plaintiff was ordered to move to cell A1-139 by defendants Silveira
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and Wisely. Plaintiff told defendants Silveira and Wisely that he did not want to move to cell
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A1-139, and defendant Wisely grabbed Plaintiff by the arm, threw him to the floor, and struck
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him in the head and chest with his fist. Defendant R. Rodriguez held Plaintiff down as
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Defendant Wisely continued to kick and punch Plaintiff while Plaintiff tried to block the blows.
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Two female officers watched the assault. Plaintiff had previously been injured and was using a
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walking cane when defendant Wisely attacked him.
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Defendant Oxborrow videotaped
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Plaintiff’s injuries. Plaintiff filed and exhausted an inmate grievance reporting the Defendants’
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breach of duty.
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III.
REMOVAL AND REMAND
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Under 28 U.S.C. ' 1441(a), a defendant may remove from state court any action Aof
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which the district courts of the United States have original jurisdiction.@ 28 U.S.C. § 1441(a).
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Federal courts Ashall have original jurisdiction of all civil actions arising under the Constitution,
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laws, or treaties of the United States.@ 28 U.S.C. ' 1331. Removal of an action under 28
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U.S.C. ' 1441(b) depends solely on the nature of the plaintiff's complaint, and is properly
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removed only if Aa right or immunity created by the Constitution or laws of the United States
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[constitutes] an element, and an essential one, of the plaintiff's cause of action.@ Gully v. First
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National Bank in Meridian, 299 U.S. 109, 112 (1936). The plaintiff is the master of his or her
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own complaint and is free to ignore the federal cause of action and rest the claim solely on a
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state cause of action. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009)
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(quotations and citation omitted).
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Because of the ACongressional purpose to restrict the jurisdiction of the federal courts
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on removal,@ the removal statute is strictly construed against removal.1 Shamrock Oil & Gas
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Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Moore-Thomas v. Alaska Airlines, Inc., 553
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F.3d 1241, 1244 (9th Cir. 2009). Federal jurisdiction Amust be rejected if there is any doubt as
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to the right of removal in the first instance.@ Id.; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
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Cir. 1992). Courts Amust consider whether federal jurisdiction exists, even if no objection is
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made to removal, and even if both parties stipulate to federal jurisdiction.@ Rains v. Criterion
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Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted).
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Well-Pleaded Complaint
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AThe presence or absence of federal-question jurisdiction is governed by the well-
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pleaded complaint rule, which provides that federal jurisdiction exists only when a federal
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AAt the core of the federal judicial system is the principle that the federal courts are courts of limited
jurisdiction.@ Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979).
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question is presented on the face of the plaintiff=s properly pleaded complaint.@ Caterpillar,
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Inc., v. Williams, 482 U.S. 386, 392 (1987) (internal quotations and citations omitted). AThe
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rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by
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exclusive reliance on state law.@ Id.
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IV.
DISCUSSION
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Defendants state that this is a civil action with claims for excessive force, failure to
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protect, and retaliation, which fall under federal jurisdiction. In support of federal jurisdiction,
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Defendants assert that Plaintiff alleges that he was subjected to violence by his cell mate, and
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defendants Andrade, Deathridge, Webster, Silveira, and Oxborrow failed to protect him even
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after the attack; that defendants J. Rodriguez, Shuler, and R. Rodriguez endangered him by
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telling another inmate that Plaintiff was a “mental case” and failed to protect him from attack;
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that defendants Wisely and R. Rodriguez subjected him to excessive force when Wisely
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grabbed him by the arm, threw him to the floor, and kicked and punched him while R.
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Rodriguez held him down; and that defendants Silveira and Rumbles, who witnessed the attack
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by Wisely, failed to protect him. (Notice of Removal, Doc. 2 at 2- 3 ¶¶3, 4.) Defendants also
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argue that federal jurisdiction exists because Plaintiff referred in his allegations to “the
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unnecessary and wanton infliction of pain,” “malicious and sadistic” intent,” and “retaliation”
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by Defendants, which are federal questions guided by federal law. (Id. ¶¶4, 5.)
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As stated above, removal of an action under 28 U.S.C. ' 1441(b) depends solely on the
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nature of the plaintiff's complaint. Gully, 299 U.S. at 112. The court has thoroughly reviewed
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Plaintiff=s Complaint and finds no reference to the United States Constitution, treaties, or any
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federal law. Plaintiff has titled his Complaint a “Complaint for Negligence, Intentional Tort,
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and Excessive Use of Force,” and he relies solely on the California Constitution, California
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Code of Civil Procedure, California Civil Code, Government Code, State Civil Rights, State
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Statutes, and state tort law in support of his claims. Nowhere in the Complaint does Plaintiff
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specifically refer to the federal Constitution, 42 U.S.C. § 1983, federal civil rights, the Eighth
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Amendment, or any other federal law in support of his claims. The court notes that both
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federal and state law contain protections against violations of civil rights, cruel and unusual
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punishment, and reprisals. Plaintiff=s use of language reciting some elements of federal claims,
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without more, is not enough to confer federal jurisdiction. As such, the nature of Plaintiff's
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Complaint on its face creates doubt as to the right of removal in the first instance. As stated
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above, Plaintiff is the master of his own complaint and is free to rest his claims solely on state
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causes of action. See The Fair, 228 U.S. at 25. Based on these facts, the court finds that
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Plaintiff=s Complaint does not present a claim arising under federal law to warrant subject
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matter jurisdiction, and therefore the instant action does not implicate a federal interest
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sufficient to sustain removal of the action to federal court.
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V.
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CONCLUSION AND RECOMMENDATIONS
The court finds that the federal court lacks jurisdiction over Plaintiff=s Complaint and
the action is not removable. Accordingly, IT IS HEREBY RECOMMENDED that:
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This action be remanded to the Fresno County Superior Court; and
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The Clerk be directed to close the case and serve notice of the remand.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty
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days after being served with these findings and recommendations, any party may file written
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objections with the court. Such a document should be captioned "Objections to Magistrate
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Judge's Findings and Recommendations." Any reply to the objections shall be served and filed
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within ten days after service of the objections. The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the District Court's order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
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November 25, 2013
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
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