(PC) Roman v. Smith, No. 1:2023cv00847 - Document 4 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS to Remand Action to State Court; ORDER Directing Clerk of Court to Randomly Assign District Judge to Action, signed by Magistrate Judge Barbara A. McAuliffe on 06/02/2023. Referred to Judge De Alba. Objections to F&R due within Fourteen-Days. (Maldonado, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ISIDRO ROMAN, 9 10 11 12 Plaintiff, v. SMITH, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS TO REMAND ACTION TO STATE COURT Defendant. (ECF No. 1) 13 FOURTEEN (14) DAY DEADLINE 14 15 Case No. 1:23-cv-00847-BAM (PC) Plaintiff Isidro Roman (“Plaintiff”) is a state prisoner proceeding pro se in this action. On 16 June 2, 2023, Plaintiff filed a notice of removal of this action from the Court of Appeal of the 17 State of California, Fifth Appellate District, Case No. F085571 (Tuolumne County Superior 18 Court, Case No. CV63312). (ECF No. 1.) 19 Plaintiff has not filed an application to proceed in forma pauperis in this action, and 20 Defendant has not had an opportunity to respond to Plaintiff’s notice of removal. However, the 21 Court finds an in forma pauperis application and a response from Defendant unnecessary to 22 address the notice of removal. 23 Under 28 U.S.C. § 1441(a), a defendant may remove from state court any action “of 24 which the district courts of the United States have original jurisdiction.” The removal statute “is 25 strictly construed and federal jurisdiction must be rejected if there is any doubt as to the right of 26 removal in the first instance.” Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) (internal 27 quotations and citations omitted). “If at any time before final judgment it appears that the district 28 court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). 1 1 Plaintiff chose to file this action in state court. As the plaintiff, he has no right to remove 2 the same action to federal court. In re Walker, 375 F.2d 678, 678 (9th Cir. 1967) (“No right 3 exists in favor of a person who, as plaintiff, has filed an action in the state court, to cause the 4 removal of such action to a federal court.”); Am. Int’l Underwriters (Phil.), Inc. v. Cont’l Ins. Co., 5 843 F.2d 1253, 1260 (9th Cir. 1988) (“The right to remove a state court case to federal court is 6 clearly limited to defendants.”). 7 As the removal was improper, remand of this action to the state court is required. See 8 Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (where subject matter 9 jurisdiction is lacking, district court required to remand action to state court). 10 11 12 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District Judge to this action. Furthermore, it is HEREBY RECOMMENDED that this action be REMANDED to the 13 Court of Appeal of the State of California, Fifth Appellate District, Case No. F085571 (Tuolumne 14 County Superior Court, Case No. CV63312). 15 These Findings and Recommendation will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 17 (14) days after being served with these Findings and Recommendation, the parties may file 18 written objections with the court. The document should be captioned “Objections to Magistrate 19 Judge’s Findings and Recommendation.” The parties are advised that failure to file objections 20 within the specified time may result in the waiver of the “right to challenge the magistrate’s 21 factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 22 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 25 26 IT IS SO ORDERED. Dated: /s/ Barbara June 2, 2023 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27 28 2

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