(PC) Walker v. California Department of Corrections et al, No. 2:2017cv02124 - Document 13 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/26/2018 RECOMMENDING plaintiff's 12 "motion for a stay" be denied; this action be remanded to the Superior Court of Sacramento County; and this case be closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 G. DANIEL WALKER, 12 Plaintiff, 13 14 15 No. 2:17-cv-2124 JAM CKD P v. FINDINGS AND RECOMMENDATIONS CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. On October 12, 2017, defendants Medina, 18 Stainer, Muniz, McCall and Kernan (defendants) removed this action from the Superior Court of 19 Sacramento County pursuant to 28 U.S.C. § 1441(a) which permits removal if a federal court has 20 original jurisdiction over claims brought in a state court. In their notice of removal, defendants 21 assert “this action arises under 42 U.S.C. § 1983 and includes claims under the First and 22 Fourteenth Amendments. . .” 23 On February 1, 2018, plaintiff’s complaint was dismissed because the complaint failed to 24 state a claim arising under federal law. Plaintiff was informed that if he wished to proceed in this 25 court, he could attempt to state claims arising under federal law in an amended complaint. 26 Plaintiff was also informed that if he chose not to file an amended complaint, this action would be 27 remanded to the Superior Court of Sacramento County where plaintiff may pursue his 28 ///// 1 1 claims arising under California law. See 28 U.S.C. § 1447(c). Plaintiff has not filed an amended 2 complaint. 3 4 5 6 7 Plaintiff has filed a document in which he asks that this action be stayed until: thirty (30) days after the plaintiff is provided equal access to the Court, including, but not limited to, being capable of reading court orders, clerk’s notices, proof reading documents to the Court, and reading and understanding defendants’ pleading, and hearing sufficiently to take part in telephonic hearings. The court has reviewed the documents filed in this matter and in plaintiff’s other two 8 pending cases: 2:17-cv-2191 TLN AC and 2:17-cv-1764 KJM DB. Plaintiff has recently filed 9 (within the last five or so months) several documents, most of which are type-written and 10 relatively free of grammatical errors. Some of the documents, such as plaintiff’s December 28, 11 2017 “Reply to Opposition to Plaintiff’s Request for Accommodations Pending Before Judge 12 O’Neill” refer to documents submitted by defendants. There is no indication that any of the 13 documents were prepared by anyone other than plaintiff. In fact, in the “proof of service” 14 attached to his “motion for stay” plaintiff declares that “true and correct” copies of his “motion” 15 were served on various persons. In order to make this declaration, plaintiff had to be capable of 16 reviewing both his motion and the copies. 17 In sum, the record before the court fails to demonstrate that plaintiff cannot proceed with 18 this action absent court-ordered assistance with reading, writing and hearing, and the court finds 19 any suggestion to the contrary to be disingenuous. Accordingly, plaintiff’s “motion for a stay” 20 should be denied. 21 Accordingly, IT IS HEREBY RECOMMENDED that: 22 1. Plaintiff’s “motion for a stay” (ECF No. 12) be denied. 23 2. This action be remanded to the Superior Court of Sacramento County; and 24 3. This case be closed. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 27 being served with these findings and recommendations, plaintiff may file written objections with 28 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 1 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 2 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). 4 Dated: March 26, 2018 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 1 walk2124.rem 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3