(PC) Daniels v. Baer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORMAN GERALD DANIELS III, 1:19-cv-01801-AWI-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 vs. MOTION TO REMAND BE DENIED (ECF No. 7.) 14 A. BAER, et al., OBJECTIONS, IF ANY, DUE WITHIN 15 Defendants. FOURTEEN DAYS 16 17 18 19 20 I. BACKGROUND 21 Norman Gerald Daniels III (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. The initial Complaint was 23 filed by Plaintiff on August 19, 2019, at the Kings County Superior Court in Hanford, California, 24 case number 19CV0717. On December 23, 2019, defendant Baer, Martin, Melina, and Smith 25 removed this case to federal court, invoking this court’s federal question jurisdiction and 26 supplemental jurisdiction. 28 U.S.C. § 1331. (ECF No. 1.) 27 On February 3, 2020, Plaintiff filed a motion titled “motion in request for summary 28 judgment.” (ECF No. 7.) In the motion Plaintiff requests the court to remand this case to the 1 state court. The court therefore construes Plaintiff’s motion as a motion to remand. Plaintiff’s 2 motion to remand is now before the court. Local Rule 230(l). 3 II. PLAINTIFF’S MOTION TO REMAND 4 A defendant may remove a case from state to federal court if the federal court would have 5 had jurisdiction over the matter were it originally filed there. 28 U.S.C. § 1441. Moore-Tomas 6 v. Alaska Airlines, Inc., 553 F.3d 1241, 1243 (9th Cir. 2009). The defendant then bears the 7 burden of establishing that removal is proper. Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). 8 Although the federal removal statute carries with it a “strong presumption against removal,” id., 9 a plaintiff may not defeat removal by “artfully pleading” a federal cause of action as a state claim. 10 Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998). District courts have federal 11 question jurisdiction over all suits “arising under the Constitution, laws, or treaties of the United 12 States.” 28 U.S.C. § 1331. 13 Plaintiff argues that because the California Constitution mirrors the United States 14 Constitution he should be allowed to litigate his claims in state court. He also argues that his 15 claims under the Government Tort Claims Act are more properly brought in state court than in 16 federal court. In opposition, defendants contend that they properly removed Plaintiff’s case to 17 federal court because Plaintiff alleges violations of his rights under the United States Constitution 18 and expressly asserts a federal claim under § 1983. 19 Plaintiff alleges in the Complaint that his First Amendment rights to freedom of 20 expression and his Fourteenth Amendment rights to due process of law were violated by 21 defendants when they restricted his ability to correspond with other inmates. (Complaint at 12:25 22 – 13:3.) In addition, Plaintiff raises claims for conspiracy, deliberate indifference, negligence, 23 and improper use of California regulations. (Complaint at 11:10-13, 17:1-8.) 24 Plaintiff has, by his allegations, brought § 1983 claims arising under federal law. This 25 Court has federal-question jurisdiction over Plaintiff’s claims under the First and Fourteenth 26 Amendments and has supplemental jurisdiction over Plaintiff’s state law claims which arise out 27 of the same factual allegations as his federal claims. See 28 U.S.C. § 1367. The court therefore 28 1 finds that removal to Federal Court was proper and that Plaintiff’s implied request to remand the 2 matter to State Court, must be denied. 3 III. CONCLUSION AND RECOMMENDATIONS 4 For the reasons set forth above, IT IS HEREBY RECOMMENDED that Plaintiff’s 5 motion to remand this case to state court, filed on February 3, 2020, be denied. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 fourteen (14) days of the date of service of these Findings and Recommendations, any party 9 may file written objections with the court. The document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served 11 and filed within ten (10) days after the objections are filed. The parties are advised that failure 12 to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson 13 v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: July 8, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28