Oliver v. Ybarra et al

Filing 7

FINDINGS and RECOMMENDATIONS Recommending That This Case be Remanded to Kern County Superior Court, signed by Magistrate Judge Gary S. Austin on 5/16/15, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

1
2
3
4

UNITED STATES DISTRICT COURT

5

EASTERN DISTRICT OF CALIFORNIA

6
7

ANTHONY WAYNE OLIVER,

[Kern County Superior Court Case #S-1500-284184 LHB]

8

Plaintiff,

9
10

1:15-cv-00723-LJO-GSA-PC

vs.
G. YBARRA, et al.,

11

Defendants.

FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
REMANDED TO KERN COUNTY SUPERIOR
COURT
(Doc. 1.)
OBJECTIONS, IF ANY, DUE WITHIN THIRTY
DAYS

12
13
14

I.

BACKGROUND

15

This is a civil action filed by plaintiff Anthony Wayne Oliver (APlaintiff@), a state

16

prisoner proceeding pro se. This action was initiated by civil Complaint filed by Plaintiff in the

17

Kern County Superior Court on January 26, 2015 (case #S-1500-CV-284184 LHB). On May

18

8, 2015, defendants Cable, Cannon, Cano, Mayo, Wallace, and Ybarra (“Defendants@) removed

19

the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. §§

20

1441(a) and 1446. (Doc. 1.)

21

II.

22

SUMMARY OF PLAINTIFF’S COMPLAINT
Plaintiff is presently incarcerated at California State Prison-Solano in Vacaville,

23

California.

24

Correctional Institution (CCI) in Tehachapi, California, when Plaintiff was incarcerated there.

25

Plaintiff names as defendants Sergeant G. Ybarra, C. Wallace, R. Cano, J. Cable, K. Cannon,

26

R. Mayo, Officer Torscano, Officer Sanchez, and John/Jane Does 1-15.

The events at issue in the Complaint allegedly occurred at the California

27

Plaintiff seeks relief from the requirements of California Government Code § 945.4, to

28

file a late civil claim with California’s Victim Compensation and Government Claims Board
1

1

(VCGCB), enabling him to file a late civil complaint (tort) against the defendants. Plaintiff

2

alleges that he had six months to file a timely claim, from July 26, 2013 to January 26, 2014,

3

but he was unable to file his claim until January 28, 2014, because of interference by the

4

defendants. Plaintiff alleges that the defendants denied him access to his legal documents from

5

July 26, 2013 until November 22, 2013, in retaliation for Plaintiff filing grievances against

6

staff, which prevented Plaintiff from presenting a timely claim to the VCGCB.

7

III.

REMOVAL AND REMAND

8

Under 28 U.S.C. ' 1441(a), a defendant may remove from state court any action Aof

9

which the district courts of the United States have original jurisdiction.@ 28 U.S.C. § 1441(a).

10

Federal courts Ashall have original jurisdiction of all civil actions arising under the Constitution,

11

laws, or treaties of the United States.@ 28 U.S.C. ' 1331. Removal of an action under 28

12

U.S.C. ' 1441(a) depends solely on the nature of the plaintiff's complaint, and is properly

13

removed only if Aa right or immunity created by the Constitution or laws of the United States

14

[constitutes] an element, and an essential one, of the plaintiff's cause of action.@ Gully v. First

15

National Bank in Meridian, 299 U.S. 109, 112 (1936). The plaintiff is the master of his or her

16

own complaint and is free to ignore the federal cause of action and rest the claim solely on a

17

state cause of action. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009)

18

(quotations and citation omitted).

19

Because of the ACongressional purpose to restrict the jurisdiction of the federal courts

20

on removal,@ the removal statute is strictly construed against removal.1 Shamrock Oil & Gas

21

Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Moore-Thomas v. Alaska Airlines, Inc., 553

22

F.3d 1241, 1244 (9th Cir. 2009). Federal jurisdiction Amust be rejected if there is any doubt as

23

to the right of removal in the first instance.@ Id.; Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

24

Cir. 1992). Courts Amust consider whether federal jurisdiction exists, even if no objection is

25

made to removal, and even if both parties stipulate to federal jurisdiction.@ Rains v. Criterion

26

Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted).

27
1

28

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).
2

1

Well-Pleaded Complaint

2

AThe presence or absence of federal-question jurisdiction is governed by the well-

3

pleaded complaint rule, which provides that federal jurisdiction exists only when a federal

4

question is presented on the face of the plaintiff=s properly pleaded complaint.@ Caterpillar,

5

Inc., v. Williams, 482 U.S. 386, 392 (1987) (internal quotations and citations omitted). AThe

6

rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by

7

exclusive reliance on state law.@ Id.

8

IV.

DISCUSSION

9

Defendants argue that the federal court has jurisdiction over this civil action under 28

10

U.S.C. § 1331, because the case involves “claims for retaliation under the First Amendment

11

and potentially a due process claim under the Fourteenth Amendment.” (Notice of Removal at

12

1:28-2:2.)

13

retaliation” and “illegally separated him from his legal documents preventing him from meeting

14

his court deadlines.” (Complaint at 4.)

Defendants assert that Plaintiff states in the Complaint “he was receiving

15

As stated above, removal of an action under 28 U.S.C. ' 1441(b) depends solely on the

16

nature of the plaintiff's complaint. Gully, 299 U.S. at 112. Plaintiff has titled his Complaint

17

“Notice of Motion and Petition for Relief from the Requirements of California Government

18

Code § 945.4, to File a Late Civil Claim.” (Complaint at 1.) Plaintiff seeks as relief only a

19

court order granting him relief from the filing requirements of Government Code § 945.4. In

20

support of his Motion for Relief, Plaintiff alleges that prison officials at CCI acted in retaliation

21

against him by denying him access to his legal documents, which prevented him from filing a

22

timely claim. These allegations are not sufficient to state a claim for retaliation under the First

23

Amendment.

24

Constitution or any of its Amendments, 42 U.S.C. § 1983, federal civil rights, or any other

25

federal law in support of his claims. Plaintiff=s use of language reciting some elements of

26

federal claims, without more, is not enough to confer federal jurisdiction. Moreover, the relief

27

sought by Plaintiff -- a court order granting him relief from the filing requirements of

28

California Government Code § 945.4 -- is not available at this court.

Nowhere in the Complaint does Plaintiff specifically refer to the federal

3

1

California’s Government Claims Act2

2

California’s Government Claims Act requires that a tort claim against a public entity or

3

its employees be presented to California’s VCGCB no more than six months after the cause of

4

action accrues. Cal. Gov=t Code '' 905.2, 910, 911.2, 945.4, 950-950.2 (West 2015); see also

5

Maynard v. City of San Jose, 37 F.3d 1396, 1406 (9th Cir. 1994). Presentation of a written

6

claim, and action on or rejection of the claim are conditions precedent to suit. E.M. v. Los

7

Angeles Unified School Dist., 194 Cal.App.4th 736, 744 (Cal. 2011); General Sec. Services

8

Corp. v. County of Fresno, 815 F.Supp.2d 1123, 1131 (E.D.Cal. 2011); Mabe v. San

9

Bernardino Cnty. Dep=t of Pub. Soc. Servs., 237 F.3d 1101, 1111 (9th Cir. 2001); Mangold v.

10

California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort claim

11

against a public employee, a plaintiff must allege compliance with the Tort Claims Act. Shirk

12

v. Vista Unified School Dist., 42 Cal.4th 201, 208 (Cal. 2007); General Sec. Services Corp.,

13

815 F.Supp.2d at 1132; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles Police Dep=t,

14

839 F.2d 621, 627 (9th Cir. 1988). A>Where compliance with the [California] Tort Claims Act

15

is required, the plaintiff must allege compliance or circumstances excusing compliance, or the

16

complaint is subject to general demurrer.=@ Mangold, 67 F.3d at 1477 (quoting Snipes v. City of

17

Bakersfield, 15 Cal.App.3d 861, 193 Cal.Rptr. 760, 762 (Cal.App. 1983). AComplaints that do

18

not allege any facts demonstrating that a tort claim was timely presented or that compliance

19

with the claims statute is excused are subject to a general demurrer for not stating facts

20

sufficient to constitute a cause of action.@ Shirk, 164 P.3d at 634.
Under California Government Code ' 946.6, a would-be claimant may petition a court

21
22

for an order relieving the petitioner from the requirements of ' 945.4. “The proper court for

23

filing the petition is a superior court that would be a proper court for the trial of an action on the

24

cause of action to which the claim relates.” Cal. Gov.Code § 946.6(a).

25

///

26

///

27
28

2

In City of Stockton v. Superior Court, 42 Cal.4th 730, 742 (Cal. 2007), California=s Supreme Court
adopted the practice of referring to California=s Tort Claims Act as the Government Claims Act.
4

1

The Ninth Circuit has not decided whether a federal court has jurisdiction to rule on a

2

request for relief from Government Code § 945.4, and there is a split of authority among

3

California's district courts. This Court concurs with Hill v. City of Clovis, which explained:

4

Although the Ninth Circuit has not interpreted § 946.6, most California District
Courts interpret § 946.6(a) as meaning that only state superior courts, and not
federal district courts, may grant relief from Government Code § 945.4. See
e.g., Maximo v. San Francisco Unified Sch. Dist., 2011 U.S. Dist. LEXIS
30225, *17–*18, 2011 WL 1045292 (N.D.Cal. Mar. 21, 2011); Hickenbottom v.
City of San Rafael, 2010 U.S. Dist. LEXIS 109007, *5, 2010 WL 4009434
(N.D.Cal. Oct. 13, 2010); Ludavico v. Sacramento County, 2009 U.S. Dist.
LEXIS 22519, *15–*16, 2009 WL 616868 (E.D.Cal. Mar. 11, 2009); Ovando v.
City of Los Angeles, 92 F.Supp.2d 1011, 1022 (C.D.Cal.2000); Hernandez v.
McClanahan, 996 F.Supp. 975, 978 (N.D.Cal.1998); Luers v. Smith, 941
F.Supp. 105, 108 (C.D.Cal.1996)). Some courts have reached a contrary
conclusion and have held that both state superior courts and federal district
courts may grant relief pursuant to § 946.6. See Rahimi v. AMTRAK, 2009
U.S. Dist. LEXIS 59423, *9–* 12, 2009 WL 1883756 (N.D. Cal. June 30,
2009); Perez v. Escondido, 165 F.Supp.2d 1111, 1113 (S.D.Cal.2001). “Rahimi
relied on Perez in reaching its conclusion, and Perez in turn relied in part on the
language of § 946.6. The language of § 946.6 that Perez relied upon predated
amendments that went into effect in 2002. Prior to 2002, § 946.6(a) in pertinent
part stated that the “proper court for filing the petition is a court which would be
a competent court for the trial of an action on the cause of action to which the
claim relates and which is located in a county or judicial district which would be
a proper place for the trial of the action ....” Cal. Gov.Code § 946.6(a) (2001 ed.)
(emphasis added); Perez, 165 F.Supp. at 1113. In distinguishing Hernandez, the
Perez court stated that it “finds no basis in the language of section 946.6” for
Hernandez's conclusions since “[n]othing in the language of section 946.6
precludes a federal court from adjudicating the merits of a petition for relief.
The only provision pointed to either of the courts in Luers and Hernandez is a
venue provision.” Perez, 165 F.Supp.2d at 1115; see Rahimi, 2009 U.S. Dist.
LEXIS 59423 at *10, 2009 WL 1883756. However, since 2002, the language of
§ 946.6(a) has become more specific. The “proper court” for obtaining relief is
no longer “a court,” rather it is now “a superior court.” See Cal. Gov.Code § 946
.6(a). Section 946.6(a) could have been left unamended with respect to
specifically identifying the proper court, but it was changed. Since § 946.6(a)
was amended to identify a specific court, and that court is the state superior
court, this Court will follow the majority position and conclude that only state
superior courts have been given the authority to grant relief pursuant to §
946.6(a). See Maximo, 2011 U.S. Dist. LEXIS 30225 at *17–*18, 2011 WL
1045292; Hickenbottom, 2010 U.S. Dist. LEXIS 109007 at *5, 2010 WL
4009434; Ludavico 2009 U.S. Dist. LEXIS 22519 at *15 n. 8, 2009 WL 616868;
Ovando, 92 F.Supp.2d at 1022; Hernandez, 996 F.Supp. at 978; Luers, 941
F.Supp. at 108. Because this Court does not have authority to grant relief under
§ 946(a), any argument regarding excusable neglect is unavailing.

5
6
7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26

Hill v. City of Clovis, 2012 WL 787609 at *12 (E.D. Cal., Mar. 9, 2012, 1:11-CV-1391 AWI

27

SMS).

28

///
5

1

Based on the foregoing, the nature of Plaintiff's Complaint on its face creates doubt as

2

to the right of removal in the first instance. Therefore, the court finds that Plaintiff=s Complaint

3

does not present a claim arising under federal law to warrant subject matter jurisdiction, and

4

therefore the instant action does not implicate a federal interest sufficient to sustain removal of

5

the action to federal court.

6

V.

CONCLUSION AND RECOMMENDATIONS

7

8

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:

9

1.

This action be remanded to the Kern County Superior Court; and

10

2.

The Clerk be directed to close the case and serve notice of the remand.

11

These findings and recommendations are submitted to the United States District Judge assigned

12

to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty days after

13

being served with these findings and recommendations, any party may file written objections

14

with the court. Such a document should be captioned "Objections to Magistrate Judge's

15

Findings and Recommendations." Any reply to the objections shall be served and filed within

16

ten days after service of the objections. The parties are advised that failure to file objections

17

within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

18

772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

19

1991)).

20
21
22

23

IT IS SO ORDERED.
Dated:

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
6