(PC) Jones v. Adams, et al., No. 1:2012cv01432 - Document 10 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 10/23/2012 recommending that 5 MOTION for Remand be denied and that 8 MOTION for Sanctions be denied. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/9/2012. (Lundstrom, T)
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(PC) Jones v. Adams, et al. Doc. 10 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JASON EARL JONES, CASE No. 1:12-cv-01432-LJO-MJS (PC) FINDINGS AND RECOMMENDATIONS DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION FOR REMAND AND DENYING PLAINTIFF’S MOTION FOR SANCTIONS 11 Plaintiff, 12 vs. 13 14 WILLIAM ADAMS, et al., (ECF Nos. 5, 8) FOURTEEN (14) DAY DEADLINE 15 16 Defendants. _____________________________/ 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Jason Earl Jones is a state prisoner proceeding pro se in this action 20 originally filed on November 3, 2011 in Kern County Superior Court.1 (ECF No. 1, Ex. 21 A.) All Defendants except Defendant Adams have been served. (ECF No. 1 at 2.) 22 Defendants Borrero, Gricewich, Phillips, Tarnoff, Wilson and State of California 23 (“Defendants”) removed this action from state court based upon federal question 24 jurisdiction on August 27, 2012. (Id.) Plaintiff declined Magistrate Judge jurisdiction. 25 26 27 28 1 Jason Earl Jones v. State of California, et al., Kern County Superior Court Case No. S-1500-cv275419-SPC. -1- Dockets.Justia.com 1 (ECF No. 4.) Plaintiff filed a motion for remand on September 17, 2012. (ECF No. 5.) 2 3 Defendants filed a statement of non-opposition to Plaintiff’s motion for remand on 4 September 21, 2012.2 (ECF No. 7.) Plaintiff filed a motion for sanctions on September 5 26, 2012 pursuant to Fed. R. Civ. P 11(b) for Defendants’ improper removal. (ECF No. 6 8.) Defendants filed opposition to the motion for sanctions on October 3, 2012. (ECF 7 No. 9.) The motions for remand and for sanctions are now before the Court. 8 II. SUMMARY OF COMPLAINT 9 Plaintiff’s Complaint alleges causes of action arising at Kern Valley State Prison 10 (“KVSP”) for civil rights and state law violations including denial of access to court, due 11 process, equal protection, imposition of cruel and unusual punishment, retaliation for 12 exercise of constitutional rights, deliberate indifference to medical needs and prison 13 conditions, interference with prison mail, transgressions relating to rules violations, 14 prison programming, prison records, libel, general negligence and medical negligence. 15 (Notice of Removal, Ex. A. at 7, 9-28.) Named as Defendants are corrections and medical staffers at KVSP, the 16 17 California Department of Corrections and Rehabilitation (“CDCR”) and the State of 18 California. (Id. at 3-28.) Plaintiff seeks monetary, declaratory and injunctive relief. (Id. at 3.) 19 20 III. ARGUMENT 21 A. Remand 22 Plaintiff argues removal was defective in that this action does not arise under § 23 1983. The alleged civil rights violations, according to Plaintiff are incidental to state law 24 causes of action and arise under the California Constitution rather than the U.S. 25 26 27 28 2 Defendants condition their non-opposition on “the understanding that [Plaintiff] is abandoning any federal claim s that he m ay have asserted and he is lim iting his lawsuit to state law claim s upon rem and.” Statem ent of Non-Opposition at 2:1-3. -2- 1 Constitution, such that there is no federal question jurisdiction. Defendants are 2 “racketeers” and any action against them would be brought under 18 U.S.C. § 1964, a 3 statute not alleged in the Complaint.3 Defendants argue Plaintiff’s Complaint sets forth federal claims such that 4 5 removal was proper under 28 U.S.C. 1441(a) based upon alleged 42 U.S.C. § 1983 6 violations of the First, Eighth, and Fourteenth Amendments of the U.S. Constitution. 7 B. 8 Plaintiff claims Defendants’ removal of this action was frivolous, was based upon 9 10 Sanctions intentional misstatements and was for the purpose of delay such that Rule 11(b) sanctions are appropriate. Defendants contend Plaintiff’s motion is conclusory, lacks facts suggesting that 11 12 removal was unreasonable and thus is insufficient to show an improper and frivolous 13 filing. G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003). 14 They point out that Plaintiff checked the “Civil Rights” box on the first page of his 15 Complaint; labels his first, second, fifth, sixth, seventh, eighth, and ninth causes of 16 action as “civil rights” claims; and states that Defendants violated his rights to equal 17 protection, freedom from cruel and unusual punishment, and retaliated for his exercise 18 of constitutional rights. These allegations, according to Defendants reasonably 19 implicate rights under the First, Eighth and Fourteenth Amendments of the U.S. 20 Constitution that may be litigated under 42 U.S.C. § 1983. 21 IV. ANALYSIS 22 A. 23 The Complaint in this case facially supports subject matter jurisdiction in federal 24 Removal to Federal Court was Proper court because Plaintiff alleges violation of his federal constitutional rights. 28 U.S.C. § 25 26 3 27 Plaintiff requests judicial notice of Jason Earl Jones v. State of California, et al., E.D. Cal. Case No. 1:11-cv-02104-AW I-DLB (PC), a prisoner civil rights action awaiting screening of alleging racketeering and civil rights claim s against non-parties arising at KVSP. 28 -3- 1 1441. A defendant may remove any civil action brought in state court over which the 2 federal court would have original jurisdiction. 28 U.S.C. § 1441(a). That is, a civil action 3 that originally could have been brought in federal court may be removed from state to 4 federal court. A federal court has original jurisdiction “of all civil actions arising under the 5 Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed by the 6 7 well-pleaded complaint rule, which provides that federal jurisdiction exists only when a 8 federal question is presented on the face of the plaintiff’s properly pleaded complaint.” 9 Caterpillar, Inc., v. Williams, 482 U.S. 386, 392 (1987). “The rule makes the plaintiff the 10 master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on 11 state law,” id., and existence of federal jurisdiction is determined by the complaint at the 12 time of removal. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 13 1979). 14 A case arises under federal law when an essential element of the plaintiff’s 15 cause of action involves a right or immunity created by a federal statute. Lapoint v. Mid- 16 Atlantic Settlement Services, Inc. 256 F.Supp.2d 1, 3 (D.D.C. 2003) (citing Franchise 17 Tax Bd. of State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., et 18 al., 463 U.S. 1, 8-11 (1983)). 19 Here, Plaintiff does not directly allege federal constitutional violations in his 20 Complaint, but his civil rights causes of action arise under the First, Eighth and 21 Fourteenth Amendments of the U.S. Constitution. Plaintiff argues that his claims 22 actually arise under the California Constitution. However, he does not cite sections of 23 the California Constitution consistent with such claims and he can not in any event bring 24 viable claims for damages under what should have been the correctly cited sections. 25 Javor v. Taggart, 98 Cal.App.4th 795, 807 (Cal.App. 2 Dist. 2002) (“It is beyond 26 question that a plaintiff is not entitled to damages for a violation of the due process 27 28 -4- 1 clause or the equal protection clause of the state Constitution”); see also Giraldo v. 2 California Dep’t of Corr. and Rehab., 168 Cal.App.4th 231, 253-57 (Cal.Ct. App. 2008) 3 (citing Katzberg v. Regents of the University of California, 29 Cal.4th 300, 329 (2002)) 4 (there is no private cause of action for damages for violation of the cruel and unusual 5 punishments clause of the California Constitution at article 1, section 17); id. at 329 6 (2002) (no implied right to seek damages and no available constitutional tort action for 7 violation of California Constitution article 1, section 7(a)) (due process); Creighton v. 8 City of Livingston, 628 F.Supp.2d 1199, 1218-19 (E.D. Cal. 2009) (no constitutional tort 9 action for damages for violation of California Constitution article 1 section 2(a)) (free 10 speech). Such claims may be made in federal court pursuant to 42 U.S.C. § 1983. The 11 12 federal court has subject matter jurisdiction over such claims even if Plaintiff does not 13 explicitly cite to the federal statute in his Complaint. “Actions of which the District Courts 14 have original jurisdiction are not subject to remand irrespective of whether the plaintiff 15 intended to allege a federal or state claim, if a federal cause of action exists.” Lennard 16 v. Local 282 Pension Trust Fund, 391 F.Supp. 554, 557 (D.C.N.Y. 1975) (citing Francis 17 H. Leggett & Co., v. O’Rourke, 237 F.Supp. 561 (S.D.N.Y. 1964)); see also Johnson v. 18 Jumelle, 359 F.Supp. 361, 363 (D.C.N.Y. 1973) (where case properly removed to 19 federal court, the jurisdiction of the state court ceased and not even the consent of all 20 the parties could divest federal jurisdiction and confer state court jurisdiction absent 21 statutory authority); Hearst Corp. v. Shopping Center Network, Inc., 307 F.Supp. 551, 22 555-56 (D.C.N.Y. 1969) (plaintiff’s disclaiming any desire or intention to recover on 23 anything other than a purely state cause of action not sufficient cause for remand). 24 “Original jurisdiction does not mean exclusive jurisdiction.” Lennard, 391 F.Supp. at 25 557. 26 Plaintiff’s state law claims do not preclude removal because a federal court may 27 28 -5- 1 exercise supplemental jurisdiction over closely related state law claims. See 28 U.S.C. 2 § 1367(a); Darnell v. Starks, 258 F.Supp. 31, 32 at n.2 (D.C.Or. 1966). Defendants properly and timely removed the action from state court within 30 3 4 days of receiving notice of the filing of this action.4 28 U.S.C. § 1446(b). Plaintiff's 5 motion to remand should be denied. 6 B. 7 Inasmuch as Defendants’ removal of this action was reasonable, Defendants of 8 Sanctions are not warranted course should not be sanctioned for such removal. The standard for triggering a sanction under Rule 11 is objective 9 10 unreasonableness, Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000), i.e. whether a 11 reasonable attorney, upon an objectively reasonable inquiry into the facts and law, 12 would have concluded the position taken was well-founded. Truesdell v. Southern 13 California Permanente Medical Group, 209 F.R.D. 169, 174 (C.D. Cal. 2002). A court 14 considering Rule 11 sanctions should consider whether a position taken was frivolous, 15 legally unreasonable, or without factual foundation, even if not filed in bad faith. Id. 16 Here Plaintiff makes the rather bare assertion that removal was frivolous. The 17 Court finds the removal proper. Planitiff has identified no sanctionable activity on the 18 part of any Defendant. See In re Wal-Mart Employee Litigation, 271 F.Supp.2d 1080, 19 1085 (E.D. Wis. 2003) (no Rule 11 sanction where removing party had non-frivolous 20 argument for removal); see also Costantini v. Guardian Life Ins. Co. of America, 859 21 F.Supp. 89, 91 (S.D.N.Y. 1994) (no Rule 11 sanctions where removal supported by an 22 underlying factual predicate). Plaintiff’s motion for Rule 11(b) sanctions should be denied. 23 24 /////// 25 26 27 28 4 In cases involving m ultiple defendants, all defendants who have been served m ust consent to rem oval under 28 U.S.C. § 1441(a). Lapoint, 256 F.Supp.2d at 2. -6- 1 V. FINDINGS AND RECOMMENDATIONS 2 Accordingly, the undersigned hereby RECOMMENDS the following: 3 1. Plaintiff's motion for remand (ECF No. 5) be DENIED without prejudice, and 4 5 2. Plaintiff's motion for sanctions (ECF No. 8) be DENIED. 6 These Findings and Recommendations are submitted to the United States 7 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 8 636(b)(1). Within fourteen (14) days of entry of this order, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be 10 captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any 11 reply to the objections shall be served and filed within ten (10) days after service of the 12 objections. The parties are advised that failure to file objections within the specified 13 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 14 1153 (9th Cir. 1991). 15 16 17 18 IT IS SO ORDERED. 19 Dated: 12eob4 October 23, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 -7-
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