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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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KATHRYN CSERNA,

Case No. 5:14-cv-00236 HRL

Plaintiff,
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ORDER GRANTING MOTION TO
PROCEED IN FORMA PAUPERIS

v.
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MORGAN HILL POLICE DEPT. CHIEF
DAVID SWING,

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Defendant.

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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

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Court that she now seeks permission to remove here. Although it is not entirely clear, her one-

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page motion indicates that she wishes to remove her state court case to correct mistakes in motions

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and other papers. Additionally, she says “The Judge’s Decision on Dec. 10, 2013 to set aside

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judgment-void judgment, I will Appeal it.” Cserna also requests leave to proceed in forma

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pauperis (IFP).

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A court may authorize the commencement of a civil action in forma pauperis (“IFP”) if the

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court is satisfied that the applicant cannot pay the requisite filing fees. 28 U.S.C § 1915(a)(1). In

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evaluating such an application, the court should “gran[t] or den[y] IFP status based on the

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applicant’s financial resources alone and then independently determin[e] whether to dismiss the

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complaint on the grounds that it is frivolous.” Franklin v. Murphy, 745 F.2d 1221, 1226-27 n.5

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(9th Cir. 1984). A court may dismiss a case filed without the payment of the filing fee whenever it

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determines that the action “(i) is frivolous or malicious; (ii) fails to state a claim on which relief

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may be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Having reviewed plaintiff’s financial affidavit, the court finds that she lacks sufficient

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resources to pay the filing fee, and her IFP application is granted. Even so, her attempt to remove

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this case is improper and her motion to do so should be denied. Only defendants have the right to

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remove a case from state to federal court. 28 U.S.C. § 1441(a). Additionally, insofar as Cserna

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seeks to have this court review any state court orders, it is not evident that any such appeal

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properly would be before this court.
Because not all parties have consented to the undersigned’s jurisdiction, this court

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United States District Court
Northern District of California

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ORDERS the Clerk of the Court to reassign this case to a District Judge. The undersigned further

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RECOMMENDS that the newly assigned judge deny her “Motion to Remove Case From Superior

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Court To Federal Court.” Any party may serve and file objections to this Report and

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Recommendation within fourteen days after being served. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

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72.

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SO ORDERED.
Dated: January 23, 2014
______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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5:14-cv-00236-HRL Notice sent by U.S. Mail to:
Kathryn Cserna
P.O. Box 1601
Morgan Hill, CA 95038

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United States District Court
Northern District of California

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