Tate v. Chavez et al
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
LIONEL TATE, SR.,
No. 2:16-cv-2336 CKD P
L. CHAVEZ, et al.,
FINDINGS AND RECOMMENDATIONS
On September 29, 2016, defendants Chavez, Myers and the California Department of
Corrections and Rehabilitation removed this action pursuant to 28 U.S.C. § 1441 from the
Superior Court of Solano County. Defendants’ asserted basis for removal is that plaintiff asserts
claims arising under federal law. See id. & § 1331.
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
under federal law. He does, within the context of the claims identified, assert his right to equal
protection of the laws was violated, suggesting a violation of the Fourteenth Amendment. He
also asserts that he was retaliated against for filing inmate grievances, suggesting a violation of
the First Amendment. In his objections to removal, however, plaintiff asserts he used terms
“equal protection” and “retaliation” in reference to acts prohibited under the California
Constitution, not the United States Constitution.
In light of the foregoing, the court will recommend that this action be remanded to the
Superior Court of Solano County due to lack of subject matter jurisdiction. Even if the court
construed plaintiff’s amended complaint liberally1 to state a claim for relief under federal law,
plaintiff has essentially requested that such claims be dismissed.
Accordingly, IT IS HEREBY ORDERED that a district court judge be assigned to this
IT IS HEREBY RECOMMENDED that:
1. Any claim arising under federal law in plaintiff’s August 18, 2016 amended complaint
be deemed voluntarily dismissed; and
2. Plaintiff’s August 18, 2016 amended complaint be remanded to the Superior Court of
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 days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
objections shall be served and filed within fourteen days after service of the objections. The
parties are advised that failure to file objections within the specified time may waive the right to
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: January 20, 2017
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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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