Sierra v. Spearman et al

Filing 25

ORDER ADOPTING Findings and Recommendations and dismissing certain claims and Defendants 19 , 24 signed by District Judge Dale A. Drozd on 10/8/2019. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO SIERRA, 12 13 14 15 No. 1:17-cv-01691-DAD-EPG Plaintiff, v. M.E. SPEARMAN, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING CERTAIN CLAIMS AND DEFENDANTS (Doc. Nos. 19, 24) 16 17 18 Plaintiff Francisco Sierra is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On March 4, 2019, the assigned magistrate judge screened plaintiff’s first amended 22 complaint and issued findings and recommendations, recommending that this action proceed on 23 plaintiff’s claim against defendant Thompson for retaliation in violation of the First Amendment, 24 against defendant Castellanos for cruel and unusual punishment in violation of the Eighth 25 Amendment, and that all other claims and defendants be dismissed. (Doc. No. 19.) The findings 26 and recommendations were served on plaintiff and contained notice that any objections were to 27 be filed within twenty-one days after service. (Id. at 18.) After seeking and receiving two 28 extensions of time in which to file objections, plaintiff filed objections on June 28, 2019. (Doc. 1 1 No. 24.) Contained within those objections is a motion for leave to remand those causes of action 2 that the magistrate judge recommended be dismissed. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 4 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 5 including plaintiff’s objections, the court finds the findings and recommendations to be supported 6 by the record and by proper analysis. The court first addresses plaintiff’s objections to the findings and recommendations. The 7 8 magistrate judge previously screened the original complaint and found that it stated some 9 cognizable claims, but that those claims did not arise out of the same transaction or occurrence 10 and could thus not be brought in the same lawsuit. (See Doc. No. 11.) In that screening order, the 11 magistrate judge provided plaintiff with instructions on how to properly construct an amended 12 complaint. Plaintiff did not heed the direction given and, as the magistrate judge has noted in the 13 pending findings and recommendations, “[t]he material factual allegations in the FAC are largely 14 identical to the factual allegations in the [original] Complaint.” (Doc. No. 19 at 3.) Thus, the 15 magistrate judge recommended dismissal after finding that plaintiff had failed to correct the 16 deficiencies already identified in the screening order. 17 With respect to whether his claims are related to one another, in his objections plaintiff 18 merely cites to legal authority, and makes no effort to explain how the claims presented in his 19 complaint arise from the same transaction or occurrence. Here, the magistrate judge applied the 20 correct legal standard. The court also agrees with the magistrate judge that many of plaintiff’s 21 claims are entirely unrelated to one another. The FAC alleges claims against twenty-three 22 separate defendants who work at three different prisons, with the various incidents alleged in the 23 FAC being several months apart. Accordingly, the undersigned agrees with the magistrate 24 judge’s conclusion that plaintiff has failed to allege a connection between the named defendants 25 sufficient to meet the requirements of Federal Rule of Civil Procedure 20(a)(2), because of which 26 certain of his claims must be dismissed. 27 ///// 28 ///// 2 In addition, although plaintiff has requested “leave to remand all claims against Avalos 1 2 [and] Wright” (Doc. No. 24 at 1), plaintiff has not offered any argument or authority in support of 3 this request. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made 4 in passing and not supported by citations to the record or to case authority are generally deemed 5 waived.”). Nonetheless, the court will address plaintiff’s request in light of his pro se status. As 6 this court and other have previously concluded, federal courts lack the authority to remand a case 7 to state court if it was originally filed in federal court. See Martinez v. Nestle Dreyer’s Ice Cream 8 Co., No. 1:18-cv-01582-DAD-JLT, 2019 WL 2918025, at *1 (E.D. Cal. July 8, 2019); see also 9 Bradgate Assocs., Inc. v. Fellows, Read & Assocs., Inc., 999 F.2d 745, 751 (3rd Cir. 1993) 10 (reviewing a district court’s order to remand a consolidated case and holding that “the district 11 court should have remanded the removed case to state court and dismissed the case [plaintiff] 12 originally filed in federal court.”); Ngoc Lam Che v. San Jose/Evergreen Cmty. Coll. Dist. 13 Found., No. 17-cv-00381-BLF, 2017 WL 2954647, at *3 (N.D. Cal. July 11, 2017) (“As an initial 14 matter, this Court could not remand Che’s state law claim even if it were to dismiss Che’s ADA 15 claim, because this action was originally filed in federal court.”); Harbord v. Bean, No. C 17-349 16 RSL, 2017 WL 2081072, at *1 (W.D. Wash. May 15, 2017) (“[T]his Court lacks the authority to 17 remand a case that originated in federal court.”), aff’d, No. 17-35498, 2017 WL 6345784 (9th Cir. 18 Oct. 12, 2017); Fuse v. Ariz. Bd. of Regents, No. CV 07-2351-PHX-FJM, 2009 WL 837645, at *1 19 (D. Ariz. Mar. 27, 2009) (“[W]e cannot remand plaintiff’s claims to state court because this 20 action was originally filed in federal court.”). Construing plaintiff’s request as a motion to 21 remand, that motion must be denied. 22 For the reasons set forth above, 23 1. 24 The findings and recommendations issued on March 4, 2019 (Doc. No. 19) are adopted in full; 25 ///// 26 ///// 27 ///// 28 ///// 3 1 2. This case shall proceed on plaintiff’s claims against defendant Thompson for 2 retaliation in violation of the First Amendment and against defendant Castellanos 3 for cruel and unusual punishment in violation of the Eight Amendment; and 4 5 6 7 3. All other claims and defendants are dismissed. IT IS SO ORDERED. Dated: October 8, 2019 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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