Neal v. Director of Department of Corrections and Rehabilitations et al

Filing 19

ORDER DECLINING to Adopt FINDINGS AND RECOMMENDATION and ORDER REMANDING Action to State Court 12 , 17 , signed by District Judge Anthony W. Ishii on 7/8/15: Plaintiff's motion to remand 12 is GRANTED; The Court DECLINES to award costs, expenses or fees against Defendant; and Copy of remand order sent to Kern County Superior Court. (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEAN BAPTISTE NEAL,
Plaintiff,

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v.
DIRECTOR OF CDCR, et al.,

Case No. 1:14-cv-02067-AWI-JLT (PC)
ORDER DECLINING TO ADOPT FINDINGS AND
RECOMMENDATION AND ORDER
REMANDING ACTION TO STATE COURT
(Docs. 12, 17 )

Defendants.

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Plaintiff, Sean Baptiste Neal, is a state prisoner proceeding pro se in this civil action. The
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matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and

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Local Rule 302.
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On February 4, 2013, Plaintiff filed this action in Kern County Superior Court. (Doc. 118
1.) After a demur was granted, Plaintiff stipulated that he would amend as to all Defendants.
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(Doc. 1, ¶5.) Plaintiff served the First Amended Complaint ("FAC") on Defendants on December
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1, 2014 and they received it on December 3, 2014. (Id., at ¶ 6.) Defendants filed their notice of
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removal in this action on December 22, 2104, and removed the matter to this Court on the basis
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of federal question jurisdiction. (Doc. 1.) On January 26, 2015, Plaintiff filed a motion for
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remanded. (Doc. 12.) Defendants filed an opposition to which Plaintiff replied. (Docs. 15, 16.)
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On April 9, 2014, the Magistrate Judge issued a Findings and Recommendations (“F&R”)

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to deny Plaintiff's motion to remand the action to state court. (Doc. 17.) The F&R was served
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that same date and allowed for filing of objections within fifteen days. Id. Plaintiff filed timely
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objections. (Doc. 18.)
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
de novo review of this case.
The removal statute (28 U.S.C. § 1441) is strictly construed against removal jurisdiction.

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Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d 1102, 1107 (9th Cir. 2010); Provincial

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Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087 (9th Cir. 2009). It is presumed

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that a case lies outside the limited jurisdiction of the federal courts, and the burden of establishing

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the contrary rests upon the party asserting jurisdiction. Geographic Expeditions, 599 F.3d at

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1106-07; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). “The strong

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presumption against removal jurisdiction” means that “the court resolves all ambiguity in favor of

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remand to state court.” Hunter, 582 F.3d at 1042; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

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1992). That is, federal jurisdiction over a removed case “must be rejected if there is any doubt as

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to the right of removal in the first instance.” Geographic Expeditions, 599 F.3d at 1107; Duncan

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v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). “If at any time prior to judgment it appears that

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the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. §

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1447(c); Gibson v. Chrysler Corp., 261 F.3d 927, 932 (9th Cir. 2001). Remand under 28 U.S.C.

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§ 1447(c) “is mandatory, not discretionary.” Bruns v. NCUA, 122 F.3d 1251, 1257 (9th Cir.

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1997); see California ex. rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004). That is,

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the court “must dismiss a case when it determines that it lacks subject matter jurisdiction, whether

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or not a party has filed a motion.” Page v. City of Southfield, 45 F.3d 128, 133 (6th Cir. 1995).

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“The presence or absence of federal question jurisdiction is governed by the ‘well-pleaded

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complaint rule,’ which provides that federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint.” California v. United States,

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215 F.3d 1005, 1014 (9th Cir. 2000); Duncan, 76 F.3d at 1485. Under the “well-pleaded

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complaint” rule, courts look to what “necessarily appears in the plaintiff’s statement of his own

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claim in the bill or declaration, unaided by anything in anticipation of avoidance of defenses

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which it is thought the defendant may interpose.” California, 215 F.3d at 1014. Federal courts

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may exercise federal question jurisdiction when: (1) a federal right or immunity is an essential

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element of the plaintiff’s cause of action; or (2) a state law claim necessarily raises a disputed and
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substantial federal issue, which “a federal forum may entertain without disturbing any

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congressionally approved balance of federal and state judicial responsibilities.” Marinduque, 582

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F.3d at 1087. The plaintiff is “the ‘master’ of her case, and if she can maintain her claims on both

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state and federal grounds, she may ignore the federal question, assert only state claims, and defeat

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removal.” Duncan, 76 F.3d at 1485; Dynegy, 375 F.3d at 838-39.

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Here, Plaintiff’s second cause of action reads in pertinent part: “In violation of California

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Constitution, Article I, § 17, and the Eight [sic] Amendment of the United States Constitution,

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Defendants omission to bring KVSP water into compliance with California Clean Water Act . . .

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subjected Plaintiff to cruel and unusual punishment, in that he suffered injury as stated . . . .”

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FAC ¶ 29. This paragraph does suggest two claims for cruel and unusual punishment – one under

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the California constitution and one under the federal constitution. However, Plaintiff’s objection

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to the F&R clarifies his complaint. Plaintiff explains that he is merely “supplementing” his cruel

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and unusual punishment claim by referencing the Eighth Amendment, just like the plaintiff in

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Rains v. Criterion Syts., Inc., 80 F.3d 339 (9th Cir. 1996). Plaintiff states that he “cited to the 8th

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Amendment to support his State Law claim for Cruel and Unusual Punishment, he was not

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attempting to plead a separate claim.” Doc. No. 18.

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Given the similarity in standards between the Eighth Amendment and Art. I § 17, and

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Plaintiff’s misreading of Rains, the Court can see a reasonable reading of the FAC in which no

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Eighth Amendment claim is actually alleged. First, the Eighth Amendment prohibits cruel and

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unusual punishment. California Constitution Art. I § 17 is the state equivalent to the Eighth

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Amendment and it also prohibits cruel and unusual punishment. Moreno v. Beard, 2014 U.S.

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Dist. LEXIS 20692, *22 (C.D. Cal. Jan. 13, 2014). Essentially, the same standards would apply

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under both the Eighth Amendment and Art. I § 17 to Plaintiff’s claims regarding exposure to

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arsenic. See id.; see also In re Alva, 33 Cal.4th 254, 294 (2004); Ochoa v. Superior Ct., 39 Cal.3d

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149 (1985); Inmates of Riverside Cnty. Jail v. Clark, 144 Cal.App.3d 850, 858-59 (1983).

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Plaintiff could cite to Eighth Amendment cases as persuasive authority for his Art. I § 17 claims.

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Second, Rains held that there was no federal question involved in a state law wrongful

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termination in violation of public policy claim that borrowed the public policy of Title VII. See
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Rains, 80 F.3d at 341-44, 347. There is no public policy based claim for which Plaintiff would

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“borrow” the Eighth Amendment. However, considering Plaintiff’s pro se status, the Court can

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understand how some confusion could ensue.

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Plaintiff’s objections reveal an ambiguity in the FAC. The Court will resolve the

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ambiguity by taking Plaintiff at his word and accepting his clarification. See Lippitt v. Raymond

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James Fin. Srvs., Inc., 340 F.3d 1033, 1040 (9th Cir. 2003) (accepting clarification from a pro se

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plaintiff of his ambiguous complaint). That is, the Court will read the FAC as seeking relief

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under only California law. Although it is possible to read a federal cause of action for violation

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of the Eighth Amendment, the Court will read the FAC as not alleging an Eighth Amendment

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claim because Plaintiff is the master of his complaint, see Duncan, 76 F.3d at 1485, and any

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doubts about jurisdiction are resolved against finding jurisdiction. See Hunter, 582 F.3d at 1042.

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Because Plaintiff does not seek recovery for a violation of the Eighth Amendment, there is

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no federal question present in the FAC. Without a federal question, this Court is without

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jurisdiction and must remand this matter to state court. Bruns, 122 F.3d at 1257.

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Additionally, Plaintiff requested fees and costs based on an improper removal. 28 U.S.C.

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§ 1447(c) permits the Court to award “just costs” and expenses as part of a remand order. See

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Jordan v. Nationstar Mortg., Inc., 781 F.3d 1178, 1184 (9th Cir. 2015). An award of such costs

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and expenses, which may include attorney’s fees, is appropriate where “the removing party

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lacked an objectively reasonable basis for seeking removal.” Jordan, 781 F.3d at 1184. Here,

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given the ambiguous nature of Plaintiff’s complaint, the Court cannot find that Defendants’

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removal to be objectively unreasonable. Therefore, the Court will not award costs and expenses

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against Defendants.

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Having carefully reviewed the entire file, the Court finds that it lacks subject matter

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jurisdiction over this removed case. As a result, the Court must remand this case to the Kern

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County Superior Court. Because the F&R found that federal question jurisdiction existed, the

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Court respectfully will decline to adopt the F&R.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Court DECLINES to adopt the Findings and Recommendations, issued on April

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9, 2015 (Doc. 17);

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2. Plaintiff's motion to remand (Doc. 12) is GRANTED;

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3. Pursuant to 28 U.S.C. § 1447(c) and due to lack of subject matter jurisdiction, this

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matter is REMANDED forthwith to the Kern County Superior Court; and
4. The Court DECLINES to award costs, expenses or fees against Defendant.

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IT IS SO ORDERED.
Dated: July 8, 2015
SENIOR DISTRICT JUDGE

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