(PC) Austin Willis v. James Yates et al, No. 1:2008cv00125 - Document 9 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Request for Remand be Denied signed by Magistrate Judge Sandra M. Snyder on 04/17/2009. Objections to F&R due by 5/20/2009. Motion referred to Judge Wanger; Objections to F&R due by 5/20/2009. (Flores, E)

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(PC) Austin Willis v. James Yates et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AUSTIN WILLIS, 12 Plaintiff, 13 14 1:08-cv-00125-OWW-SMS-PC FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S REQUEST FOR REMAND (Doc. 5.) v. JAMES YATES, et. al., OBJECTIONS, IF ANY, DUE IN 30 DAYS 15 Defendants. / 16 17 I. 18 RELEVANT PROCEDURAL HISTORY Austin Willis (“plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action in the Fresno County Superior 20 Court on October 1, 2007. The action was removed to federal court by the defendants on January 21 24, 2008. (Doc. 1.) On March 3, 2008, plaintiff filed a request for the court to remand this 22 action to the Fresno Superior Court. (Doc. 5.) 23 II. 24 REMOVAL Removal of an action under 28 U.S.C. § 1441(b) depends solely on the nature of the 25 plaintiff's complaint, and is properly removed only if “a right or immunity created by the 26 Constitution or laws of the United States [constitutes] an element, and an essential one, of the 27 plaintiff's cause of action.” Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936). 28 The plaintiff is the master of his or her own complaint and is free to ignore the federal cause of 1 Dockets.Justia.com 1 action and rest the claim solely on a state cause of action. See The Fair v. Kohler Die & Specialty 2 Co., 228 U.S. 22, 25, (1913); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th 3 Cir.1976); La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 346 (3d Cir.1974), cert. denied, 4 421 U.S. 937 (1975). However, under 28 U.S.C. § 1441(a), a defendant may remove from state 5 court any action “of which the district courts of the United States have original jurisdiction.” 6 Federal courts “shall have original jurisdiction of all civil actions arising under the Constitution, 7 laws, or treaties of the United States.” 28 U.S.C. § 1331. 8 III. DISCUSSION 9 Plaintiff argues that this action should be remanded to the Fresno Superior Court in the 10 interest of judicial economy because the case was already proceeding at the superior court and 11 had been placed on a case management schedule when defendants removed the case. 12 The court has thoroughly reviewed plaintiff’s complaint. Although the complaint is 13 primarily couched as claims under California state tort law, plaintiff also alleges "violation of 14 Plaintiff’s 8th [a]mendment right [under the] United States Constitution.” (Cmp. at p. 6.) 15 Therefore, the court finds that the federal court has original jurisdiction over the complaint and 16 the removal was proper. As for plaintiff’s argument that the case should be remanded in the 17 interest of judicial economy, this argument is not a sufficient reason to remand the case. As 18 stated above, removal of an action under 28 U.S.C. § 1441(b) depends solely on the nature of 19 plaintiff’s complaint. Gully, 299 U.S. at 112. Accordingly, plaintiff’s request for remand should 20 be denied. 21 IV. 22 23 24 CONCLUSION Based on the foregoing, the court HEREBY RECOMMENDS that plaintiff’s request for remand be DENIED. These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 26 thirty days after being served with these findings and recommendations, plaintiff may file written 27 objections with the court. Such a document should be captioned "Objections to Magistrate 28 Judge's Findings and Recommendations." The parties are advised that failure to file objections 2 1 within the specified time may waive the right to appeal the District Court's order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 IT IS SO ORDERED. 4 Dated: icido3 April 17, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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