Akbar-Jones v. McDonald et al

Filing 13

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/1/12 ORDERING that 11 Motion to Appoint Counsel is DENIED; and the Clerk is directed to assign a District Judge to this case. It is RECOMMENDED that this action be remanded to the Superior Court of Lassen County. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HAKIM AKBAR-JONES,

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Plaintiff,

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No. 2:11-cv-2627 CKD P

vs.
M. MCDONALD, et al.,

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ORDER AND

Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff is a California prisoner proceeding pro se. His claims are related to his

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past-incarceration at High Desert State Prison.1 On October 11, 2011, defendant M. McDonald

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removed this action to this court from the Superior Court of Lassen County. Defendant

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McDonald claims removal of this action was appropriate since the court has original jurisdiction

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over claims stated by plaintiff in his complaint which arise under the Fourteenth and Eighth

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Amendments. See 28 U.S.C. §§ 1331 & 1441(a). Plaintiff filed a timely opposition to removal

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on October 24, 2012. See 28 U.S.C. § 1447(c). This proceeding was referred to this court by

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Local Rule 302, pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff now resides at California State Prison, Sacramento.
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In his complaint, plaintiff asserts seven distinct “Cause[s] of Action.” Complt. at

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10-24.2 Each cause of action arises under California tort law. For example, plaintiff identifies

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“Cause of Action I.” as “Intentional Tort–Personal Injury–Intentional Infliction of Emotional

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Distress–Liability.” Complt. at 10. Plaintiff fails to assert any claims arising under federal law

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in his complaint. At various points in his complaint, plaintiff states his “Constitutional” rights

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and right to “due process” and “civil rights” have been violated. However, plaintiff fails to

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indicate whether these are references to the California or United States Constitution. In any case,

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passing reference to the “Constitution,” “due process” and “civil rights” in a lengthy complaint

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do not amount to an assertion of a claim especially in light of the fact that plaintiff is clear about

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the claims he is actually raising through his specific identification of his “cause[s] of action.”

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See Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (complaint must

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give fair notice of claims and state elements plainly and succinctly).

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Under 28 U.S.C. § 1447(c), this court must remand an action back to state court

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if, at any point, it is clear the court does not have subject matter jurisdiction. This court lacks

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subject matter jurisdiction, or jurisdiction under any other basis, as it is clear plaintiff fails to

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properly assert a claim arising under federal law. Accordingly, the court will recommend that

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this action be remanded to the Superior Court of Lassen County.

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The court notes that plaintiff has requested the appointment of counsel. The

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United States Supreme Court has ruled that district courts lack authority to require counsel to

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

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298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance

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of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In light of the fact that

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Page numbers are those assigned by the court’s electronic docketing system.
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the court is recommending that this action be remanded to state court, appointment of counsel is

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not warranted.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for the appointment of counsel (Dkt. No. 11) is denied; and

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2. The Clerk of the Court assign a District Court Judge to this case.

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IT IS HEREBY RECOMMENDED that this action be remanded to the Superior

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Court of Lassen County.

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These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 1, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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