Thomas v. Rene Wilkinson , et al

Filing 9

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Motion to Remand Action 7 , signed by Magistrate Judge Dennis L. Beck on 5/28/15: Thirty-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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v.

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Case No. 1:15-cv-00527-LJO-DLB PC
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S MOTION TO
REMAND ACTION
(Document 7)

RENE WILKINSON, et al.,
THIRTY-DAY DEADLINE

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Defendants.

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Plaintiff Josh Thomas (“Plaintiff”) is a California state prisoner proceeding pro se in this civil

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action pursuant to 42 U.S.C. § 1983. The action was originally filed in the Fresno County Superior

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Court on April 21, 2014. Defendant Tehrani removed the action to this Court on April 2, 2015.1

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On April 23, 2015, Plaintiff filed “objections” to the removal. Defendant filed an opposition

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on May 1, 2015. Plaintiff did not file a reply and the motion is ready for decision pursuant to Local

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Rule 230(l).
DISCUSSION

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Removal to federal court is proper where the federal court would have original subject matter

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jurisdiction over the complaint. 28 U.S.C. § 1441. Federal courts have original jurisdiction over

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civil actions “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. §

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It does not appear that Defendant Wilkinson has been served.

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1331. A claim “arises under” federal law if, based on the well-pleaded complaint rule, the plaintiff

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alleges a federal claim for relief. Vaden v. Discover Bank, 556 U.S. 49 (2009).
Plaintiff’s claims arise out of his contention that Defendants erroneously referred to another

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inmate’s name and circumstances in his psychological evaluation report. As a result, Plaintiff’s

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Board of Parole Hearing was postponed and Plaintiff alleges that this caused him to “[lose] his

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liberty interest in violation of both California and United States Constitutions Eighth and Fourteenth

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Amendment, including Plaintiff’s civil rights under 42 U.S.C. § 1983.” ECF No. 2-1, at 4.2
Despite Plaintiff’s disagreement, his complaint squarely falls within the original jurisdiction

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of this Court and could have been brought in this Court in the first instance. Moreover, while his

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complaint also asserts state claims under California law, this does not deprive the Court of

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jurisdiction. Rather, the Court may exercise supplemental jurisdiction over such claims. 28 U.S.C.

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§ 1367(a).

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To the extent that Plaintiff suggests that Defendant removed only to avoid default, his

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argument is unsupported. Defendant was served with the complaint on March 6, 2015. Any

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responsive pleading in state court would have been due by April 6, 2015. Cal. Code Civ. Proc. §

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412.20. Defendant also filed the instant notice of removal on April 2, 2015, well within the required

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thirty days. 28 U.S.C. § 1446(b). Plaintiff’s contention that Defendant was in default is incorrect.

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RECOMMENDATION

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Accordingly, the Court RECOMMENDS that Plaintiff’s motion for remand be DENIED.

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These Findings and Recommendations will be 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 (30)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within

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The Court will not make a determination as to whether Plaintiff’s allegations state a claim for which relief may be
granted until it screens Plaintiff’s complaint pursuant to 28 U.S.C. § 1915A.

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the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 28, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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