Tate v. Chavez et al

Filing 8

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/20/2017 ORDERING a district court judge be assigned to this case. IT IS RECOMMENDED that: (1) any claim arising under federal law in plaintiff's 8/18/2016 am ended complaint be deemed voluntarily dismissed; and (2) plaintiff's 8/18/2016 amended complaint 4 be remanded to the Superior Court of Solano County. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Yin, K)

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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 LIONEL TATE, SR., 12 13 14 15 No. 2:16-cv-2336 CKD P Plaintiff, v. ORDER AND L. CHAVEZ, et al., FINDINGS AND RECOMMENDATIONS Defendants. 16 17 On September 29, 2016, defendants Chavez, Myers and the California Department of 18 Corrections and Rehabilitation removed this action pursuant to 28 U.S.C. § 1441 from the 19 Superior Court of Solano County. Defendants’ asserted basis for removal is that plaintiff asserts 20 claims arising under federal law. See id. & § 1331. 21 22 23 Plaintiff objects to removal. Essentially, plaintiff asserts it was not his intent to assert a claim arising under Federal law in his August 18, 2016 amended complaint (ECF No. 1-6). In the amended complaint, plaintiff does not identify a specific cause of action arising 24 under federal law. He does, within the context of the claims identified, assert his right to equal 25 protection of the laws was violated, suggesting a violation of the Fourteenth Amendment. He 26 also asserts that he was retaliated against for filing inmate grievances, suggesting a violation of 27 the First Amendment. In his objections to removal, however, plaintiff asserts he used terms 28 “equal protection” and “retaliation” in reference to acts prohibited under the California 1 1 Constitution, not the United States Constitution. 2 In light of the foregoing, the court will recommend that this action be remanded to the 3 Superior Court of Solano County due to lack of subject matter jurisdiction. Even if the court 4 construed plaintiff’s amended complaint liberally1 to state a claim for relief under federal law, 5 plaintiff has essentially requested that such claims be dismissed. 6 7 Accordingly, IT IS HEREBY ORDERED that a district court judge be assigned to this case. 8 IT IS HEREBY RECOMMENDED that: 9 1. Any claim arising under federal law in plaintiff’s August 18, 2016 amended complaint 10 be deemed voluntarily dismissed; and 2. Plaintiff’s August 18, 2016 amended complaint be remanded to the Superior Court of 11 12 Solano County. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be served and filed within fourteen days after service of the objections. The 19 parties are advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: January 20, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 1/tate2336.rem 25 26 27 28 1 District courts must generally liberally construe the pleadings of pro se prisoner plaintiffs. Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000). 2

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