(PC) Fuller v. Yates et al, No. 1:2008cv00465 - Document 28 (E.D. Cal. 2011)
Court Description: ORDER Granting 22 FINDINGS AND RECOMMENDATIONS in Part; ORDER Dismissing Federal Claims, with Prejudice, for Failure to State a Claim; ORDER REMANDING CASE to Superior Court, County of Fresno signed by District Judge Lawrence J. O'Neill on 07/14/2011. Copy of remand order sent to other court. CASE CLOSED.(Flores, E)
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(PC) Fuller v. Yates et al Doc. 28 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KELVIN FULLER, 11 12 13 Plaintiff, vs. YATES, et al., ORDER GRANTING FINDINGS AND RECOMMENDATIONS IN PART (Doc. 22.) ORDER DISMISSING FEDERAL CLAIMS, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 14 15 1:08-cv-00465-LJO-GSA-PC Defendants. 16 17 ORDER REMANDING STATE CLAIMS TO FRESNO COUNTY SUPERIOR COURT [Case Number 07 CE CG 04211 AMS] ORDER DIRECTING CLERK TO CLOSE CASE AND SEND NOTICE OF REMAND 18 _____________________________/ 19 20 Kelvin Fuller (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant 22 to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 23 On March 25, 2011, findings and recommendations were entered, recommending that 24 Plaintiff's state claims be dismissed without prejudice for lack of jurisdiction; that this action be 25 dismissed with prejudice for failure to state a claim; and that the dismissal of this action count as a 26 strike pursuant to 28 U.S.C. § 1915(g). (Doc. 22.) On July 11, 2011, Plaintiff filed objections to the 27 findings and recommendations. (Doc. 27.) 28 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this court 2 has conducted a de novo review of this case. Plaintiff's sole objection to the Magistrate Judge's 3 findings and recommendations is to the recommendation that Plaintiff's state claims be dismissed 4 from this action. Instead of dismissing the state claims, Plaintiff requests that the Court remand the 5 claims to the Fresno County Superior Court, where this case originated before defendants removed it 6 to the federal court. 7 28 U.S.C. § 1447(c) provides: "If at any time before final judgment it appears that the district 8 court lacks subject matter jurisdiction, the case shall be remanded." This does not, however, compel 9 remand of cases in which federal question jurisdiction existed at the time of removal if the federal 10 claim is later dismissed. Legislative history shows Congress intended that federal courts exercise 11 discretion whether to remand a case to state court after all federal claims are dismissed. Albingia 12 Versicherungs A.G. v. Schenker Int'l Inc., 344 F.3d 931, 936 (9th Cir. 2003), opinion amended, 350 13 F.3d 916 (9th Cir. 2003). Therefore, following dismissal of the federal claims, the federal court may 14 properly dismiss the action for lack of federal jurisdiction or remand the remaining state law claims 15 to state court. Usually, remand is "preferable" to dismissal because it avoids any statute of 16 limitations problem and the time and expense of filing new pleadings in state court. Carnegie- 17 Mellon Univ. v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 620 (1988). 18 Plaintiff filed the Complaint commencing this action on December 17, 2007, at the Fresno 19 County Superior Court, Case Number 07 CE CG 04211 AMS. (Doc. 2, Exh. 1.) On April 1, 2008, 20 defendants James Yates and F. Igbinosa removed the case to federal court pursuant to 28 U.S.C. § 21 1441(b). (Doc. 2.) The court reviewed the Complaint and found the case to be properly removed, 22 based on Plaintiff's claim for inadequate medical care under the Eighth Amendment. (Docs. 7, 15.) 23 This case now proceeds on Plaintiff's Second Amended Complaint, filed on November 23, 2009. 24 (Doc. 18.) The Magistrate Judge found that the Second Amended Complaint fails to state any viable 25 federal claims and recommended that the federal claims be dismissed with prejudice, leaving only 26 state law tort claims. In light of this recommendation, the court finds good cause to remand the state 27 claims to the Fresno County Superior Court where they originated. 28 2 1 With respect to the Magistrate Judge's recommendation that the dismissal of this action count 2 as a strike pursuant to under 28 U.S.C. § 1915(g), the court finds no authority in the Ninth Circuit 3 that a case filed by a prisoner-plaintiff, such as Plaintiff, in state court and removed to federal court 4 by the defendants, is an action "brought" by a prisoner in a court of the United States, within the 5 meaning of § 1915(g).1 Therefore, the dismissal of this action shall not count as a strike against 6 Plaintiff under § 1915(g). 7 8 The court finds the balance of the findings and recommendations to be supported by the record and proper analysis. 9 Accordingly, THE COURT HEREBY ORDERS that: 10 1. 11 The Findings and Recommendations issued by the Magistrate Judge on March 25, 2011, are adopted in part; 12 2. 13 Plaintiff's federal claims are dismissed from this action, with prejudice, for failure to state a claim upon which relief may be granted under § 1983; 14 3. Plaintiff's state tort claims are remanded to the Fresno County Superior Court; and 15 4. The Clerk of Court is directed to close this case and serve notice of the remand. 16 IT IS SO ORDERED. 17 Dated: b9ed48 July 14, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 1 Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis added). 3
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