Walker v. California Department of Corrections et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/26/2018 RECOMMENDING plaintiff's 12 "motion for a stay" be denied; this action be remanded to the Superior Court of Sacramento County; and this case be closed. Referred to Judge John A. Mendez; 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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G. DANIEL WALKER,

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Plaintiff,

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No. 2:17-cv-2124 JAM CKD P

v.

FINDINGS AND RECOMMENDATIONS

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se. On October 12, 2017, defendants Medina,

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Stainer, Muniz, McCall and Kernan (defendants) removed this action from the Superior Court of

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Sacramento County pursuant to 28 U.S.C. § 1441(a) which permits removal if a federal court has

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original jurisdiction over claims brought in a state court. In their notice of removal, defendants

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assert “this action arises under 42 U.S.C. § 1983 and includes claims under the First and

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Fourteenth Amendments. . .”

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On February 1, 2018, plaintiff’s complaint was dismissed because the complaint failed to

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state a claim arising under federal law. Plaintiff was informed that if he wished to proceed in this

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court, he could attempt to state claims arising under federal law in an amended complaint.

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Plaintiff was also informed that if he chose not to file an amended complaint, this action would be

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remanded to the Superior Court of Sacramento County where plaintiff may pursue his

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claims arising under California law. See 28 U.S.C. § 1447(c). Plaintiff has not filed an amended

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complaint.

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Plaintiff has filed a document in which he asks that this action be stayed until:
thirty (30) days after the plaintiff is provided equal access to the
Court, including, but not limited to, being capable of reading court
orders, clerk’s notices, proof reading documents to the Court, and
reading and understanding defendants’ pleading, and hearing
sufficiently to take part in telephonic hearings.
The court has reviewed the documents filed in this matter and in plaintiff’s other two

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pending cases: 2:17-cv-2191 TLN AC and 2:17-cv-1764 KJM DB. Plaintiff has recently filed

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(within the last five or so months) several documents, most of which are type-written and

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relatively free of grammatical errors. Some of the documents, such as plaintiff’s December 28,

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2017 “Reply to Opposition to Plaintiff’s Request for Accommodations Pending Before Judge

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O’Neill” refer to documents submitted by defendants. There is no indication that any of the

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documents were prepared by anyone other than plaintiff. In fact, in the “proof of service”

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attached to his “motion for stay” plaintiff declares that “true and correct” copies of his “motion”

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were served on various persons. In order to make this declaration, plaintiff had to be capable of

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reviewing both his motion and the copies.

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In sum, the record before the court fails to demonstrate that plaintiff cannot proceed with

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this action absent court-ordered assistance with reading, writing and hearing, and the court finds

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any suggestion to the contrary to be disingenuous. Accordingly, plaintiff’s “motion for a stay”

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should be denied.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s “motion for a stay” (ECF No. 12) be denied.

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2. This action be remanded to the Superior Court of Sacramento County; and

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3. This case be closed.

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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 after

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being served with these findings and recommendations, plaintiff may file written objections with

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the court. The document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff is advised that failure to file objections within the specified time

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

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1991).

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Dated: March 26, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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walk2124.rem

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