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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LIONEL TATE, SR.,

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No. 2:16-cv-2336 CKD P

Plaintiff,
v.

ORDER AND

L. CHAVEZ, et al.,

FINDINGS AND RECOMMENDATIONS

Defendants.

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On September 29, 2016, defendants Chavez, Myers and the California Department of

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Corrections and Rehabilitation removed this action pursuant to 28 U.S.C. § 1441 from the

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Superior Court of Solano County. Defendants’ asserted basis for removal is that plaintiff asserts

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claims arising under federal law. See id. & § 1331.

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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

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under federal law. He does, within the context of the claims identified, assert his right to equal

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protection of the laws was violated, suggesting a violation of the Fourteenth Amendment. He

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also asserts that he was retaliated against for filing inmate grievances, suggesting a violation of

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the First Amendment. In his objections to removal, however, plaintiff asserts he used terms

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“equal protection” and “retaliation” in reference to acts prohibited under the California
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Constitution, not the United States Constitution.

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In light of the foregoing, the court will recommend that this action be remanded to the

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Superior Court of Solano County due to lack of subject matter jurisdiction. Even if the court

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construed plaintiff’s amended complaint liberally1 to state a claim for relief under federal law,

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plaintiff has essentially requested that such claims be dismissed.

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Accordingly, IT IS HEREBY ORDERED that a district court judge be assigned to this
case.

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IT IS HEREBY RECOMMENDED that:

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1. Any claim arising under federal law in plaintiff’s August 18, 2016 amended complaint

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be deemed voluntarily dismissed; and
2. Plaintiff’s August 18, 2016 amended complaint be remanded to the Superior Court of

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Solano County.

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

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 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.” Any response to the

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

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

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

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Dated: January 20, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/tate2336.rem

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District courts must generally liberally construe the pleadings of pro se prisoner plaintiffs.
Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000).
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