Applegate v. Clark, et al.
Filing
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FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's Motion for Remand be Denied 9 , signed by Magistrate Judge Gary S. Austin on 5/16/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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BRIAN C. APPLEGATE,
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Plaintiff,
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vs.
1:15-cv-00207-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
MOTION FOR REMAND BE DENIED
(Doc. 9.)
N. CLARK, et al.,
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Defendants.
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 Brian C. Applegate (APlaintiff@), a state prisoner
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proceeding pro se. This action was initiated by civil Complaint filed by Plaintiff in the Kings
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County Superior Court on December 1, 2014 (case #14C0325).
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defendants Robicheaux-Smith, Clark, Graves, and Caviness (“Defendants@) removed the case
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to federal court by filing a Notice of Removal of Action under 28 U.S.C. ' 1441(a). (Doc. 1.)
On February 4, 2015,
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On February 23, 2015, Plaintiff filed a motion to remand this case to the Kings County
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Superior Court. (Doc. 9.) On March 17, 2015, Defendants filed an opposition to the motion.
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(Doc. 10.) Plaintiff has not filed a reply.
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II.
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(a) depends solely on the nature of the plaintiff's complaint, and a case is
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properly removed only if Aa right or immunity created by the Constitution or laws of the United
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States [constitutes] an element, and an essential one, of the plaintiff's cause of action.@ Gully v.
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First National Bank in Meridian, 299 U.S. 109, 112 (1936). The plaintiff is the master of his or
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her own complaint and is free to ignore the federal cause of action and rest the claim solely on
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a 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). A plaintiff objecting to the removal may file a motion asking
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the district court to remand the case to state court. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 69
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(1996). AThe burden of establishing federal jurisdiction falls on the party invoking removal.@
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Harris v. Provident Life and Accident Ins. Co., 26 F.3d 930, 932 (9th Cir.1994) (quoting Gould
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v. Mut. Life Ins. Co. of New York, 790 F.2d 769, 771 (9th Cir.1986)). Federal jurisdiction
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Amust be rejected if there is any doubt as to the right of removal in the first instance.@ Id.; Gaus
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v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Courts Amust consider whether federal
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jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to
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federal jurisdiction.@ Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996)
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(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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III.
PLAINTIFF’S MOTION FOR REMAND
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Plaintiff acknowledges that his Complaint asserts federal questions, but he argues that
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the core claims are state tort actions alleging interference with federal rights, for which the state
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court has primary jurisdiction. Plaintiff requests that the case be remanded back to state court
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to proceed pursuant to already-scheduled conference orders and Plaintiff’s meet and confer
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demands already served upon the Attorney General and lodged with the state court. Plaintiff
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asserts that he did not allege federal claims against defendant Caviness, but only asserted state
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law claims of interference. Plaintiff argues that his state law claims substantially predominate
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over the federal claims, and he argues that if any of the claims should be removed, it should be
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only the federal claims.
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Defendants state that they filed a notice of removal because Plaintiff’s Complaint raised
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a federal question in asserting a claim under 42 U.S.C. § 1983 for violations of the First
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Amendment against all of the Defendants.
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specifically alleges a First Amendment violation for continuous denials of Kosher meals and
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services, and for preventing Plaintiff’s participation in religious ceremonies against defendants
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Robicheaux-Smith, Graves, and Clark. (Doc. 1-1 Exh. A at 16-17.) Defendants also assert that
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Plaintiff concedes, in his motion for remand, that “the litigation does assert federal questions.”
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(Doc. 9 at 1:24.) Defendants argue that removal is proper because Plaintiff’s state and federal
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claims form the same case or controversy, and the court should exercise supplemental
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jurisdiction over the state claims because the federal and state claims are based on the same
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facts. Defendants note that five other cases are already pending within the jurisdiction of the
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federal court, based on claims related to Plaintiff’s claims, including the same defendants and
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the same or similar incidents, and raising the same questions of law and fact.
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///
Defendants assert that Plaintiff’s Complaint
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IV.
DISCUSSION
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As stated above, removal of an action under 28 U.S.C. ' 1441(a) 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 multiple references to the First Amendment to the United States
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Constitution and the federal civil rights statute at 28 U.S.C. § 1983. (Doc. 1-1 at 2, 3, 5, 8 ¶27,
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16.) Plaintiff titles his first cause of action “Civil Rights Violation 42 USC § 1983, Deprivation
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of Right to Religious Exercise in Violation of 1st Amendment US Constitution,” alleging
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“deprivation under color of state law of rights, privileges and immunities guaranteed by the
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First Amendment of the United States Constitution.” (Id. at 16.) This is sufficient to confer
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federal jurisdiction.
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While “retention of supplemental jurisdiction over state law claims under 1367(c) is
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discretionary” once judicial power exists under ' 1367(a), Acri v. Varian Assoc., Inc., 114
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F.3d 999, 1000 (9th Cir. 1997), the court may not exercise supplemental jurisdiction unless
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Plaintiff first has a cognizable claim for relief under federal law, see 28 U.S.C. § 1367.
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"Pendent jurisdiction over state claims exists when the federal claim is sufficiently substantial
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to confer federal jurisdiction, and there is a 'common nucleus of operative fact between the state
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and federal claims.'" Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995) (quoting Gilder v. PGA
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Tour, Inc., 936 F.2d 417, 421 (9th Cir.1991)). Here, the court has yet to conduct its screening
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under 28 U.S.C. 1915A to determine whether Plaintiff’s complaint states a cognizable federal
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claim. (Doc. 5.) Therefore, the court shall not decide at this stage of the proceedings whether
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to exercise supplemental jurisdiction.
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Based on the foregoing, the nature of Plaintiff's Complaint on its face creates no doubt
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as to the right of removal in the first instance. The court finds that Plaintiff=s Complaint plainly
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presents a claim arising under federal law to warrant subject matter jurisdiction, and therefore
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the instant action implicates a federal interest sufficient to sustain removal of the action to the
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federal court. Therefore, Plaintiff’s motion for remand should be denied.
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///
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///
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V.
CONCLUSION AND RECOMMENDATIONS
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The court finds that federal jurisdiction exists over Plaintiff=s Complaint, and the action
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is removable. Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff’s motion to
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remand, filed on February 23, 2015, be DENIED.
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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 result in the waiver of rights on appeal. Wilkerson v.
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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
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(9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
May 16, 2015
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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