McKenzie v. Banuelos et al

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 6/19/2015 recommending that 14 MOTION for Remand be denied. Referred to Judge Anthony W. Ishii; Objections to F&R due by 7/9/2015. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO MCKENZIE, 12 13 14 Plaintiff, v. Case No. 1:14-cv-00434 AWI DLB PC FINDINGS AND RECOMMENDATION DENYING PLAINTIFF’S MOTION FOR REMAND [ECF No. 14] E. BANUELOS, et al., FOURTEEN DAY DEADLINE 15 Defendants. 16 17 Plaintiff Gustavo McKenzie (“Plaintiff”) is a state prisoner proceeding pro se in this civil 18 rights action pursuant to 42 U.S.C. § 1983. On March 25, 2014, Defendant removed this action to 19 federal court. 20 On March 11, 2015, the Court screened the complaint and dismissed it with leave to amend. 21 On April 8, 2015, Plaintiff filed a First Amended Complaint which is currently pending screening by 22 the Court. 23 Also on April 8, 2015, Plaintiff filed a motion for remand to state court pursuant to 28 U.S.C. 24 § 1447(c). Plaintiff requests that the action be remanded to the state court in the event that this Court 25 decides that the First Amended Complaint (“FAC”) fails to state a claim upon which relief can be 26 granted. Plaintiff’s request is not ripe for decision. Upon screening, the Court may or may not 27 determine that the FAC fails to state a claim. In any case, the Court must first screen the FAC. 28 Plaintiff is advised that in the event the Court does issue Findings and Recommendations to dismiss 1 1 the complaint for failure to state a claim, he may submit his request for remand in his objections. 2 3 4 5 6 7 8 9 10 11 12 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for remand be DENIED with leave to renew at a later date. These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. Local Rule 304(b). The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections must be filed within seven (7) days from the date of service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 IT IS SO ORDERED. Dated: /s/ Dennis June 19, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 2

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