Martin v. Desha

Filing 12

FINDINGS and RECOMMENDATIONS to Deny 8 Motion for Remand signed by Magistrate Judge Michael J. Seng on 12/07/2016. Referred to Judge Ishii; Objections to F&R due by 12/27/2016.(Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LANELL MARTIN,

12

Plaintiff,

13
14

CASE No. 1:16-cv-01353-AWI-MJS (PC)
FINDINGS AND RECOMMENDATIONS
TO DENY MOTION FOR REMAND

v.
(ECF No. 8)
D. DESHA, et al.,

15

Defendants.

FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

16
17
18
19
20

Plaintiff is a state prisoner proceeding pro se in this civil rights action brought

21

pursuant to 42 U.S.C. § 1983. The action was removed from the Madera County

22

Superior Court on September 12, 2016.

23

Before the Court is Plaintiff’s September 28, 2016 motion for remand. (ECF No.

24

8.) Defendant filed an opposition. (ECF No. 9.) Plaintiff filed no reply. The matter is

25

submitted. Local Rule 230(l).

26

///

27

///

28

1

I.

Parties Arguments

2

Plaintiff asks the Court to either exercise supplemental jurisdiction over his state

3

law claims or to remand those claims to state court after rendering a determination on

4

his constitutional retaliation claim.

5

Defendant responds that Plaintiff’s request is premature. In the event the Court

6

dismisses Plaintiff’s federal claims, it may remand or dismiss the remaining state law

7

claims.

8

II.

Discussion

9

The Court has conducted an initial screening of Plaintiff’s complaint and

10

determined that he states a cognizable claim for First Amendment retaliation.

11

Accordingly, the Court may exercise supplemental jurisdiction over Plaintiff’s state law

12

claims, which arise out of the same transaction or occurrence. 28 U.S.C. § 1367(a). The

13

Court has done so in the screening order, and determined that the state law claims are

14

not cognizable as pled.

15

Plaintiff provides no basis to suggest that the exercise of supplemental jurisdiction

16

is improper at this stage of the proceedings. Accordingly, the motion for remand should

17

be denied.

18

III.

Conclusion and Recommendation

19

The Court has federal question jurisdiction over Plaintiff’s federal claims and

20

supplemental jurisdiction over Plaintiff’s state law claims. Plaintiff suggests no other

21

basis for remand. Accordingly, it is HEREBY RECOMMENDED that the motion for

22

remand be DENIED.

23

The findings and recommendation are submitted to the United States District

24

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

25

fourteen (14) days after being served with the findings and recommendation, any party

26

may file written objections with the Court and serve a copy on all parties. Such a

27

document should be captioned “Objections to Magistrate Judge’s Findings and

28
2

1

Recommendation.” Any reply to the objections shall be served and filed within fourteen

2

(14) days after service of the objections. The parties are advised that failure to file

3

objections within the specified time may result in the waiver of rights on appeal.

4

Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

5

F.2d 1391, 1394 (9th Cir. 1991)).

6
7
8
9

IT IS SO ORDERED.
Dated:

December 7, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3