Gaines v. Lewis et al

Filing 9

FINDINGS and RECOMMENDATIONS recommending that This Case be Remanded to Madera County Superior Court re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 9/5/2017. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARY LEE GAINES, Plaintiff, 12 FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE REMANDED TO MADERA COUNTY SUPERIOR COURT (ECF No. 1.) v. 13 14 1:17-cv-01134-DAD-GSA-PC (Madera County Superior Court case #MCV074759) J. LEWIS, et al., 15 Defendants. OBJECTIONS, IF ANY, DUE IN FOURTEEN DAYS 16 17 18 19 20 I. BACKGROUND 21 This is a civil action filed by plaintiff Mary Lee Gaines (“plaintiff”), a state prisoner 22 proceeding pro se and in forma pauperis. This action was initiated by civil complaint filed by 23 plaintiff in the Madera County Superior Court (Case #07C-0362). On August 21, 2017, 24 plaintiff removed the case to federal court. (ECF No. 1 at 43.) 25 II. REMOVAL 26 Under 28 U.S.C. § 1441(a), “the defendant or the defendants” may remove from state 27 court any action “of which the district courts of the United States have original jurisdiction.” 28 28 U.S.C. § 1441(a) (emphasis added). Removal is available to defendants to an action, not 1 1 plaintiffs. See id. “A plaintiff who commences his action in a state court cannot effectuate 2 removal to a federal court even if he could have originated the action in a federal court. . .” 3 Am. Int’l Underwriters, Inc. v. Cont=l Ins. Co. 843 F.2d 1253, 1260 (9th Cir. 1988). “‘The right 4 to remove a state court case to federal court is clearly limited to defendants.’” Baker v. 5 Oakland Unified School Dist., 203 Fed.Appx. 117 (9th Cir. 2006) quoting Am. Int=l 6 Underwriters, 843 F.2d at 1260. 7 jurisdiction of the federal courts on removal,” the removal statute is strictly construed against 8 removal.1 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109 (1941); Duncan v. 9 Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Federal jurisdiction “must be rejected if there is 10 any doubt as to the right of removal in the first instance.” Duncan, 76 F.3d at 1485; Gaus v. 11 Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 12 Because of the “Congressional purpose to restrict the Under 28 U.S.C. § 1441(a), a plaintiff does not have the right to remove his state court 13 case to federal court. 14 plaintiff’s action to the Madera County Superior Court. 15 III. 16 17 Therefore, the court must reject federal jurisdiction and remand CONCLUSION Based on this analysis, the court finds that plaintiff’s lawsuit must be remanded to Madera County Superior Court. Accordingly, IT IS HEREBY RECOMMENDED that: 18 1. This case be REMANDED to Madera County Superior Court; and 19 2. The Clerk be DIRECTED to serve notice of the remand and close the case. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 fourteen (14) days after being served with these Findings and Recommendations, any party 23 may file written objections with the court. The document should be captioned “Objections to 24 Magistrate Judge=s Findings and Recommendations.” Any reply to the objections shall be 25 served and filed within ten (10) days after the date the objections are filed. The parties are 26 27 28 1 “At 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 advised that failure to file objections within the specified time may result in the waiver of rights 2 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: September 5, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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