Cserna v. Swing

Filing 4

ORDER granting 2 MOTION for Leave to Proceed in forma pauperis; REPORT AND RECOMMENDATIONS that 1 MOTION to Remove Case from Superior Court to Federal Court be denied. Clerk to reassign this case to a District Judge. Objections due by 2/10/2014. Signed by Magistrate Judge Howard R. Lloyd on 1/23/2014. (hrllc2, COURT STAFF) (Filed on 1/23/2014) Modified on 1/23/2014 (hrllc2, COURT STAFF).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 KATHRYN CSERNA, Case No. 5:14-cv-00236 HRL Plaintiff, 13 ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS v. 14 15 MORGAN HILL POLICE DEPT. CHIEF DAVID SWING, 16 Defendant. 17 REPORT AND RECOMMENDATION THAT MOTION TO REMOVE CASE BE DENIED Kathryn Cserna, proceeding pro se, filed a civil rights suit in Santa Clara County Superior 18 Court that she now seeks permission to remove here. Although it is not entirely clear, her one- 19 page motion indicates that she wishes to remove her state court case to correct mistakes in motions 20 and other papers. Additionally, she says “The Judge’s Decision on Dec. 10, 2013 to set aside 21 judgment-void judgment, I will Appeal it.” Cserna also requests leave to proceed in forma 22 pauperis (IFP). 23 A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the 24 court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In 25 evaluating such an application, the court should “gran[t] or den[y] IFP status based on the 26 applicant’s financial resources alone and then independently determin[e] whether to dismiss the 27 complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5 28 (9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it 1 determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief 2 may be granted; or (iii) seeks monetary relief against a defendant who is immune from such 3 relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Having reviewed plaintiff’s financial affidavit, the court finds that she lacks sufficient 4 5 resources to pay the filing fee, and her IFP application is granted. Even so, her attempt to remove 6 this case is improper and her motion to do so should be denied. Only defendants have the right to 7 remove a case from state to federal court. 28 U.S.C. § 1441(a). Additionally, insofar as Cserna 8 seeks to have this court review any state court orders, it is not evident that any such appeal 9 properly would be before this court. Because not all parties have consented to the undersigned’s jurisdiction, this court 11 United States District Court Northern District of California 10 ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further 12 RECOMMENDS that the newly assigned judge deny her “Motion to Remove Case From Superior 13 Court To Federal Court.” Any party may serve and file objections to this Report and 14 Recommendation within fourteen days after being served. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 15 72. 16 17 18 19 SO ORDERED. Dated: January 23, 2014 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2 1 2 3 5:14-cv-00236-HRL Notice sent by U.S. Mail to: Kathryn Cserna P.O. Box 1601 Morgan Hill, CA 95038 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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