(PC) Calvin D. Holt v. Alvarado ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 CALVIN HOLT, 1:19-cv-00930-NONE-GSA-PC 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 11 vs. MOTION FOR REMAND BE GRANTED (ECF No. 20.) 12 M. ALVARADO, et al., OBJECTIONS, IF ANY, DUE IN 13 Defendants. FOURTEEN (14) DAYS 14 15 I. BACKGROUND 16 Calvin Holt (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action 17 pursuant to 42 U.S.C. § 1983. On March 19, 2019, Plaintiff filed the Complaint commencing this 18 action in the Kings County Superior Court in Hanford, California, case number 19C0135. (ECF 19 No. 1 at 5.) On July 3, 2019, the case was removed to the federal court under 28 U.S.C. § 1441(a) 20 by defendants M. Alvarado, A. Shaw, S. Sherman, and M. Owens (“Defendants”). (Id. at 1.) 21 On August 21, 2020, the court screened Plaintiff’s Complaint under 28 U.S.C. § 1915A 22 and dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 9.) On 23 February 1, 2021, Plaintiff filed the First Amended Complaint which is now before the court for 24 screening. 28 U.S.C. § 1915A. (ECF No. 20.) 25 II. SCREENING REQUIREMENT 26 The court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 2 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 3 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 4 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 5 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 6 A complaint is required to contain “a short and plain statement of the claim showing that 7 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 8 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 9 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 10 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 11 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 12 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state a 13 viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 14 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 15 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions 16 are not. Id. The mere possibility of misconduct falls short of meeting this plausibility standard. 17 Id. 18 III. SUMMARY OF ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 19 Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility 20 (SATF) in Corcoran, California, in the custody of the California Department of Corrections and 21 Rehabilitation (CDCR), where the events at issue in the Complaint allegedly occurred. Plaintiff 22 names as defendants M. Alvarado (Correctional Officer), A. Shaw (Appeals Coordinator), S. 23 Sherman (Warden), and M. Owens (Lieutenant) (collectively, “Defendants”). A summary of 24 Plaintiff’s allegations follows: 25 On June 7, 2018, defendant C/O Alvarado negligently, subjectively, objectively, and 26 maliciously concocted and filed Rules Violation Report (RVR) #5151248 against Plaintiff, 27 accusing Plaintiff of violating California Code of Regulations Title 15 § 3005(c). This resulted in 28 foreseeable harm to Plaintiff. Under Governing Administrative Regulations, said RVR constituted 1 “stacking,” given that Plaintiff had a similar charged offense, RVR #5019370, which had not been 2 adjudicated and lawfully precluded the charging of a similar offense RVR. 3 While constructing said RVR, defendant C/O Alvarado negligently/gross negligently failed 4 to perform her fiduciary duty (see CCR. Tit. 15 § 3392) that required her to access readily available 5 information alerting (see CRR Tit. 15, § 3395) her of Plaintiff’s pending RVR for a similar offense, 6 or she gross negligently/maliciously/subjectively/objectively sought to engage in foreseeable harm 7 by reporting the RVR and filing a false report, notwithstanding “stacking clauses,” giving rise to 8 violations of Penal Code §§ 148.5(b), and 118(a) and (b), et seq. as well. This resulted in harm to 9 Plaintiff. 10 Despite Plaintiff’s timely objection preceding and during his RVR Hearing on June 17, 11 2018, citing “stacking” violations to the Senior Hearing Officer (SHO), Lieutenant Owens, 12 negligently/gross negligently imposed an illegal sentence/penalty assessments of 90 days loss of 13 credits and 90 days loss of privileges enjoyed by similarly situated inmates. This violated CA 14 Const. Art. I,§ 7 and CA Const. Art. I § 17, because the SHO’s acts and omissions to act were 15 cruel and unusual. Plaintiff declares that he solely seeks to pursue state causes of actions resulting 16 from negligence/gross negligence, causing Plaintiff’s injuries. 17 On July 16, 2018, Plaintiff filed an administrative appeal (Log No. SATF-D-18-03893), 18 regarding the above injustice, and the appeal was negligently/gross negligently denied by 19 supervisory officials A. Shaw (Correctional Counselor II) and Warden Stuart Sherman at the 20 institutional level of review, resulting in foreseeable harm to Plaintiff. Subsequently, ultimately, 21 and untimely, the appeal was granted at the third level of review by Sacramento’s Chief of Inmate 22 Appeals, on January 11, 2019, subsequent to Plaintiff completing/serving the 90 days illegal 23 sentence/loss of privileges (i.e., phone access; regular yard and recreation access; dayroom access; 24 canteen purchases; receipt of packages from approved vendors; usage of personal appliances, C- 25 Status, etc.). 26 On October 5, 2018, Plaintiff filed a Government Claim that was denied on or about 27 December 10, 2018; and thereafter Plaintiff timely filed the instant Complaint in the Superior 28 Court of California for the County of Kings. 1 Plaintiff requests as relief that the court remand this case to the Superior Court of California 2 for the County of Kings in Hanford, California and/or for this court to exercise its 3 pendent/supplemental jurisdiction over the state claims in this case, declaring that Plaintiff is solely 4 pursuing damages under state causes of action, for more than $25,000.00, punitively, according 5 to proof, and for reimbursement/compensation pursuant to CCP § 1233.5 Also, any additional 6 relief this court deems fit. 7 IV. MOTION TO REMAND 8 Plaintiff requests that this case be remanded to the Superior Court of California, Kings 9 County, in Hanford, California. 10 A defendant may remove a civil action from state to federal court so long as jurisdiction 11 originally would lie in federal court. 28 U.S.C. § 1441(a). “Challenges to removal jurisdiction 12 require an inquiry into the circumstances at the time the notice of removal is filed.” Jablonski v. 13 Claremont Graduate Univ., No. 220CV10695FLARAOX, 2021 WL 424419, at *1–2 (C.D. Cal. 14 Feb. 8, 2021) (quoting Spencer v. U.S. Dist. Court, 393 F.3d 867, 871 (9th Cir. 2004). “When 15 removal is proper at that time, subsequent events, at least those that do not destroy original subject 16 matter jurisdiction, do not require remand.” Id. Generally, when all federal claims are dismissed 17 in a lawsuit’s early stages and only state law claims remain, the court should decline to exercise 18 jurisdiction over the remaining state law claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343at 19 350; Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir. 1981) (“When the state issues 20 apparently predominate and all federal claims are dismissed before trial, the proper exercise of 21 discretion requires dismissal of the state claim.”)). “If at any time before final judgment it appears 22 that the district court lacks subject matter jurisdiction, the case shall be remanded.” § 1447(c) 23 (emphasis added). 24 No motion, timely or otherwise, is necessary: ultimate responsibility to ensure jurisdiction 25 lies with the district court. Kelton Arms, 346 F.3d at 1192. Moreover, the district court 26 generally must remand the case to state court, rather than dismiss it. Bruns v. Nat’l Credit Union 27 Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)). Remand is the correct remedy because a failure of 28 federal subject-matter jurisdiction means only that the federal courts have no power to adjudicate 1 the matter. Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016). State courts 2 are not bound by the constraints of Article III. ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 3 S.Ct. 2037, 104 L.Ed.2d 696 (1989). 4 Here, Plaintiff has omitted the federal claims from the First Amended Complaint, and 5 there is no other basis for subject matter jurisdiction.1 The remaining claims assert violations of 6 the California Constitution and common law and are best resolved in state court. See Cohill, 484 7 U.S. at 350. 8 V. RECOMMENDATIONS AND CONCLUSION 9 Accordingly, the court HEREBY RECOMMENDS that Plaintiff’s motion be granted and 10 this action be remanded to the Superior Court of California, Kings County, in Hanford, California. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days after the date of service of these findings and recommendations, any party may file 14 written objections with the court. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” Any reply to the objections shall be served and filed 16 within ten (10) days after the date the objections are filed. The parties are advised that failure to 17 file objections within the specified time may result in the waiver of rights on appeal. Wilkerson 18 v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 19 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21 22 Dated: March 17, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 1 Plaintiff cannot establish subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because the named parties are not diverse. Jablonski, 2021 WL 424419, at *2. (See First Amended 28 Complaint, ECF No. 20 at 3-4.)