Oliver v. Gore et al

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/10/2016 RECOMMENDING that plaintiff's 6 motion to remand this action back to the Lassen County Superior Court be denied. Motion referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within 21 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY WAYNE OLIVER,

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No. 2:15-cv-0345 GEB AC P

Plaintiff,

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v.

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R. GORE, et al.,

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FINDINGS AND RECOMMENDATIONS

Defendants.

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I.

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Plaintiff is a state prisoner at California State Prison Solano who proceeds pro se in this

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civil rights action. On December 24, 2014, plaintiff filed the operative complaint in the Lassen

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County Superior Court, alleging violations of his constitutional rights under 42 U.S.C. §1983, and

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a state law negligence claim, against thirty-one named defendants. See ECF No. 1-1. At least

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twenty-four of the defendants have been served process and are represented by the Office of the

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California Attorney General. On February 9, 2015, these defendants paid the filing fee in this

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court and filed a Notice of Removal pursuant to 28 U.S.C. § 1441(a), removing the action to this

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federal district court. See ECF No. 1; see also ECF Nos. 5, 8.

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Background

On March 12, 2015, plaintiff filed a motion to remand this case back to the Lassen County

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Superior Court. See ECF No. 6. Defendants filed an opposition on April 1, 2015. See ECF No.

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7. For the reasons that follow, this court recommends that plaintiff’s motion be denied.
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II.

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A defendant sued in state court may remove to the appropriate federal district court any

Legal Standards

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civil action over which the district courts have original jurisdiction. See 28 U.S.C. § 1441(a).

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Federal district courts have original jurisdiction, in pertinent part, over “civil actions arising under

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the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

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“The general rule governing removal of actions from the state court to federal court is that

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for a district court to have federal question removal jurisdiction, a federal cause of action must

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appear on the face of the complaint.” Felton v. Unisource Corp., 940 F.2d 503, 506 (9th Cir.

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1991) (citing, inter alia, Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)). “The

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presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

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rule,’ which provides that federal jurisdiction exists only when a federal question is presented on

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the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S.

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386, 392 (1987).

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It is defendant’s burden, as the removing party, to establish that the federal court has

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jurisdiction over the removed case. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389,

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1393-94 (9th Cir. 1988) (when removing on the basis of federal question jurisdiction, “[t]he party

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invoking the removal statute bears the burden of establishing federal jurisdiction”). However,

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“[u]nder § 1447(c), the district court must remand ‘[i]f at any time before final judgment it

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appears that the district court lacks subject matter jurisdiction[.]’” Smith v. Mylan Inc., 761 F.3d

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1042, 1044 (9th Cir. 2014).

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III.

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In the instant complaint, plaintiff asserts three federal claims premised on 42 U.S.C. §

Analysis

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1983 and the First, Eighth, and Fourteenth Amendments to the United States Constitution.

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Therefore, it is clear on the face of plaintiff’s complaint that this court has original subject matter

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jurisdiction over this action, see 28 U.S.C. § 1331, and therefore that defendants’ removal of this

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case to this court was proper, see 28 U.S.C. § 1441(b).

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Nevertheless, plaintiff seeks remand of this action back to the Lassen County Superior
Court on the grounds that state courts have authority to address federal claims; this case includes
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a state law claim; and the conduct challenged in this action occurred in Lassen County. See ECF

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No. 6.

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The fact that plaintiff’s claims arose in Lassen County does not deprive defendants of

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their statutory right to remove plaintiff’s action to this federal district court whose jurisdiction

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encompasses Lassen County. Moreover, although state and federal courts may have concurrent

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jurisdiction to initially consider a case, the state court loses jurisdiction upon proper removal to

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federal court. See Lou v. Belzberg, 834 F.2d 730, 740 (9th Cir. 1987). Removal divests the state

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court of jurisdiction and “the State court shall proceed no further unless and until the case is

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remanded.” 28 U.S.C. § 1446(d). Where the action was properly removed and the federal court

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has original jurisdiction over the claims, the federal court has no authority to remand the case.

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See Destfino v. Reiswig, 630 F.3d 952, 958 (9th Cir. 2011).

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Further, “[w]here removal is properly effected under section 1441(a), the district court

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may also elect to exercise pendent jurisdiction over state law claims.” Emrich v. Touche Ross &

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Co., 846 F.2d 1190, 1196 (9th Cir. 1988). “Under section 1441(a), cases joining federal and state

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claims can be removed so long as the joined claims would be within the district court’s original

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jurisdiction. [] The basis for the district court’s jurisdiction over nonfederal claims stems from

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the doctrine of pendent jurisdiction. The doctrine of pendent jurisdiction, in turn, permits the

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district court to adjudicate factually related state claims in cases raising federal questions,

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whenever the federal law claims and state law claims ‘derive from a common nucleus of

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operative fact.’” Id. at 1195. Once the district court has resolved all federal claims, it may then

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address any state law claims pursuant to the court’s supplemental jurisdiction, see 28 U.S.C. §

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1367, or remand the state law claims to the state court for resolution. See Albingia Versicherungs

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A.G. v. Schenker Int’l Inc., 344 F.3d 931, 937-38 (9th Cir. 2003). Therefore, this court will retain

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jurisdiction of plaintiff’s state law claim until final resolution of plaintiff’s federal claims, and

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then determine whether to address the state claim under the court’s pendant jurisdiction or

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remand the claim to the state court.

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IV.

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For these reasons, IT IS HEREBY RECOMMENDED that plaintiff’s motion to remand

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Conclusion

this action back to the Lassen County Superior Court, ECF No. 6, be denied.1

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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days

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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.” The parties are advised that

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

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

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DATED: March 10, 2016

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Should the district judge adopt these findings and recommendations, this court will then screen
plaintiff’s complaint pursuant under the Prison Litigation Reform Act (PLRA), 28 U.S.C. §
1915A.
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