(PC) King v. Beregovskaya et al, No. 1:2009cv01215 - Document 5 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 3 Plaintiff's Motion for Remand be DENIED re 1 Notice of Removal, signed by Magistrate Judge Gary S. Austin on 2/9/2010. Referred to Judge Ishii. Objections to F&R due by 3/15/2010. (Jessen, A)

Download PDF

(PC) King v. Beregovskaya et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. KING, 12 Plaintiff, 13 14 1:09-cv-01215-AWI-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING DENIAL OF PLAINTIFF’S MOTION FOR REMAND (Doc. 3.) v. BEREGOVSKAYA, et al., OBJECTIONS, IF ANY, DUE IN 30 DAYS 15 Defendants. / 16 17 I. 18 RELEVANT PROCEDURAL HISTORY Anthony L. King (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 19 action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on April 17, 2009, at the 20 Kings County Superior Court, case number 09C-0129. On July 10, 2009, defendants 21 Beregovskaya and Enenmoh (“Defendants”) removed this action to federal court. (Doc. 1.) On 22 July 21, 2009, Plaintiff filed a motion to remand this action to state court. (Doc. 3.) Defendants 23 have not filed an opposition. 24 II. 25 REMOVAL Removal of an action under 28 U.S.C. § 1441(b) depends solely on the nature of the 26 plaintiff's complaint, and is properly removed only if “a right or immunity created by the 27 Constitution or laws of the United States [constitutes] an element, and an essential one, of the 28 plaintiff's cause of action.” Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936). 1 Dockets.Justia.com 1 The plaintiff is the master of his or her own complaint and is free to ignore the federal cause of 2 action and rest the claim solely on a state cause of action. See The Fair v. Kohler Die & Specialty 3 Co., 228 U.S. 22, 25, (1913); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th 4 Cir.1976); La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 346 (3d Cir.1974), cert. denied, 5 421 U.S. 937 (1975). However, under 28 U.S.C. § 1441(a), a defendant may remove from state 6 court any action “of which the district courts of the United States have original jurisdiction.” 7 Federal courts “shall have original jurisdiction of all civil actions arising under the Constitution, 8 laws, or treaties of the United States.” 28 U.S.C. § 1331. 9 Well-Pleaded Complaint Rule 10 “The presence or absence of federal-question jurisdiction is governed by the well-pleaded 11 complaint rule, which provides that federal jurisdiction exists only when a federal question is 12 presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar, Inc., v. 13 Williams, 482 U.S. 386, 392 (1987) (internal quotations and citations omitted). “The rule makes 14 the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive 15 reliance on state law.” Id. 16 III. 17 DISCUSSION Removal depends solely on the nature of Plaintiff’s complaint, which the Court has 18 thoroughly reviewed. Although the complaint appears at first glance to be couched as claims 19 under California state tort law, plaintiff also claims that defendants “violated plaintiff’s 20 constitutional right, because [their] conduct constitutes deliberate indifference to plaintiff’s 21 serious medical needs in violation of the Eighth Amendment, to be free from cruel and unusual 22 punishment” and “violated plaintiff’s right to be free from cruel and unusual punishment 23 guaranteed to the plaintiff by the Eighth Amendment of . . . the United States Constitution.” 24 (Cmp. ¶¶5, 23.) Plaintiff repeats language throughout the complaint that describes the standard 25 for inadequate medical care under the Eighth Amendment, alleging that he suffered from a 26 “serious medical need,” that defendants knew and disregarded a “risk of serious harm to 27 plaintiff,” and that “failure to treat the condition has resulted in further significant injury.” 28 (Cmp.¶¶22, 26, 33.) While such language, without more, is not enough to confer federal 2 1 jurisdiction, see The Fair, 228 U.S. at 25, here Plaintiff also makes specific reference to the 2 Eighth Amendment and the United States Constitution. Therefore, the court finds that the federal 3 court has jurisdiction over the complaint, and the removal was proper. 4 Plaintiff argues that this action should be remanded because the state court has 5 jurisdiction over his § 1983 claims and plaintiffs have a choice of forum. Under § 1441(a), 6 defendants may remove any action of which the district courts have original jurisdiction. Here, 7 the district court has original jurisdiction over § 1983 claims, so defendants are free to remove 8 the action to federal court, even if the state court also has jurisdiction. Therefore, the case was 9 properly removed. Although Plaintiff is correct that he had a choice of forum, he did not rely 10 exclusively on state law in the complaint, which opened the door for Defendants to change the 11 forum. Accordingly, Plaintiff may not avoid federal jurisdiction, and his request for remand 12 should be denied. 13 IV. 14 15 16 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 Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 18 after being served with these findings and recommendations, plaintiff may file written objections 19 with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings 20 and Recommendations." The parties are advised that failure to file objections within the 21 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 24 25 IT IS SO ORDERED. Dated: 6i0kij February 9, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.