(PC) Jacks v. Simpson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY LEE JACKS, No. 2:22-cv-0693 KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 C/O SIMPSON, et al., 15 Defendants. 16 17 This action was removed from state court. “[R]emoval jurisdiction statutes are strictly 18 construed against removal.” See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th 19 Cir. 1979) (citations omitted). “Federal jurisdiction must be rejected if there is any doubt as to 20 the right of removal in the first instance.” Gaus v. Miles, 980 F.2d 564, 566 (9th Cir. 1992). The 21 party invoking removal bears the burden of establishing federal jurisdiction. Hunter v. Philip 22 Morris USA, 582 F.3d 1039 (9th Cir. 2009). Where it appears the district court lacks subject 23 matter jurisdiction, the case shall be remanded. 28 U.S.C. § 1447(c). 24 In conclusory fashion, the removal petition alleges the complaint is subject to federal 25 question jurisdiction. Removal based on federal question jurisdiction is proper only when a 26 federal question is presented on the face of the plaintiff’s properly pleaded complaint. Caterpillar 27 Inc. v. Williams, 482 U.S. 386, 392 (1987). 28 //// ] In his appended cause of action, “General Negligence,” plaintiff alleges that Correctional 2 || Officer Simpson, despite knowing plaintiff was to receive a kosher tray, refused to provide 3 || plaintiff with a kosher tray for three days, depriving plaintiff of food for three days, and 4 || subjecting him to physical pain and suffering. Plaintiff seeks money damages. 5 Although plaintiff added “ADA violation” to a series of putative causes of action on the 6 || state court form (ECF No. | at 7), plaintiff's factual allegations do not support a claim under the 7 || Americans with Disabilities Act. Moreover, while plaintiff claimed in his appended grievance 8 | that a kosher diet was guaranteed to him under the First and Fourteenth Amendments, plaintiff 9 || did not include such causes of action in his complaint. Importantly, based on plaintiff's 10 || underlying factual allegations, such putative claims are not colorable. Rather, as pled by plaintiff, 11 | his claims sound in negligence. The undersigned finds that defendants have failed to meet their 12 | burden of establishing federal jurisdiction and the matter should therefore be remanded. 13 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign 14 | a district judge to this case; and 15 IT IS RECOMMENDED that the above-entitled action be summarily remanded to the 16 || Superior Court of California, County of Sacramento, Case No. 34-2021-00310294-CU-PO-GDS. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 19 || after being served with these findings and recommendations, any party may file written 20 || objections with the court and serve a copy on all parties. Such a document should be captioned 21 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 || objections shall be filed and served within fourteen days after service of the objections. The 23 || parties are advised that failure to file objections within the specified time may waive the right to 24 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 25 || Dated: April 27, 2022 %6 Foci) Aharon 27 KENDALL J. NE /jack0693.rem UNITED STATES MAGISTRATE JUDGE 28