Joseph v. Murillo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, Case No.: 19cv1965-JAH (LL) 12 Plaintiff, ORDER REMANDING ACTION TO 13 v. STATE COURT 14 M. MURILLO; SGT. A. HERNANDEZ, 15 Defendants. 16 17 INTRODUCTION 18 Pending before the Court is an Objection to Removal by Plaintiff Alonzo Joseph 19 (“Plaintiff”), an inmate currently incarcerated at California State Prison located in 20 Corcoran, California, filed on October 22, 2019. Doc. No. 7. Due to Plaintiff’s pro se status, 21 the Court must construe the pleading liberally. See Haines v. Kerner, 404 U.S. 519, 520– 22 21 (1972). Therefore, the Court will treat the pleading as a Motion to Remand. For the 23 reasons set forth below, the Court finds it lacks jurisdiction over the complaint and, 24 therefore, GRANTS the motion to remand the matter to state court for all further 25 proceedings. 26 BACKGROUND 27 On July 3, 2019, Plaintiff Alonzo Joseph (“Plaintiff”) filed a complaint in the 28 Superior Court of California, County of San Diego, against Defendants Sgt. A. Hernandez 1 and Corrections Office M. Murillo. See Doc. No. 1 at 5, exhibit A. Defendant Murillo 2 removed the action to this Court on October 10, 2019. Doc. No. 1. Therein, Defendant 3 claimed there is federal jurisdiction. Id. Specifically, Defendant Murillo claims the Civil 4 Cover sheet identifies the case as “Civil Rights” and the Complaint alleges claims for 5 violations of the Eighth Amendment for excessive force and failure to protect and a 6 Fourteenth Amendment violation for retaliation. Doc. No. 1 at 2. Defendant also requests 7 the Court “screen” Plaintiff’s Complaint pursuant to 28. U.S.C. § 1915A. Id. at 3. Plaintiff 8 filed an Objection to Removal on October 22, 2019, objecting to removal “because Plaintiff 9 have [sic] a right to submit himself in any court.” Doc. No. 7. 10 DISCUSSION 11 A. Legal Standard 12 The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of 13 New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any 14 dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a 15 Better Env’t., 523 U.S. 83, 94 (1998). “Jurisdiction is power to declare the law, and when 16 it ceases to exist, the only function remaining to the court is that of announcing the fact and 17 dismissing the cause.” Id. (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 614 (1868)). 18 District courts must construe the removal statutes strictly against removal and resolve any 19 uncertainty as to removability in favor of remanding the case to state court. Gaus v. Miles, 20 Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam); Boggs v. Lewis, 863 F.2d 662, 663 21 (9th Cir. 1988). 22 Removal jurisdiction is governed by 28 U.S.C. § 1441 et seq. A state court action 23 can only be removed if it could have originally been brought in federal court. Caterpillar, 24 Inc. v. Williams, 482 U.S. 386, 392 (1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th. 25 Cir. 1996). Thus, for an action to be removed on the basis of federal question jurisdiction, 26 the complaint must establish either that federal law creates the cause of action or that the 27 plaintiff’s right to relief necessarily depends on the resolution of substantial questions of 28 federal law. Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for 1 Southern Cal., 463 U.S. 1, 10-11 (1983). Whether federal jurisdiction exists is governed 2 by the well-pleaded complaint rule. Caterpillar, 482 U.S. at 392. Under this rule, the 3 federal question must be “presented on the face of plaintiff’s properly pleaded complaint.” 4 Id.; accord Wayne v. DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir. 2002). “[I]t 5 is now settled law that a case may not be removed to federal court on the basis of a federal 6 defense, including the defense of pre-emption, even if the defense is anticipated in the 7 plaintiff’s complaint, and even if both parties concede that the federal defense is the only 8 question truly at issue.” Caterpillar, 482 U.S. at 393; see Wayne, 294 F.3d at 1183 9 (“However, the existence of a defense based upon federal law is insufficient to support 10 jurisdiction.”). Further, “[a]s the master of the complaint, a plaintiff may defeat removal 11 by choosing not to plead independent federal claims.” Arco Envtl. Remediation L.L.C. v. 12 Department of Health & Envtl. Quality, 213 F.3d 1108, 1114 (9th Cir. 2000); Rains v. 13 Criterion Sys., Inc., 80 F.3d 339, 344 (9th Cir. 1996); Redwood Theaters, Inc. v. Festival 14 Enters. Inc., 908 F.2d 477, 479 (9th Cir. 1990). 15 The defendants have the burden of establishing that removal is proper and supporting 16 its jurisdictional allegations with competent proof. Gaus v. Miller, 980 F.2d at 566; 17 Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990). In 18 addition, the defendants must file a timely notice of removal. 28 U.S.C. § 1446(b). The 19 notice of removal must be filed within 30 days after receipt of a copy of the initial pleading 20 if removability can be determined from its text. Id. 21 B. Discussion 22 Defendants seek removal of this action on the grounds that Plaintiff’s Complaint 23 arises under 42 U.S.C. § 1983. However, the face of Plaintiff’s Complaint does not 24 establish that a federal statute creates any of the claims found in Plaintiff’s Complaint. 25 Furthermore, while Defendant’s cites to Plaintiff’s Civil Cover sheet as support for the 26 removal, Defendant ignores that Plaintiff also indicated the causes of action are for 27 negligence and intentional tort, which are state laws and not federal causes of action. See 28 Doc. No. 1-2 at 5. Simply because Plaintiff alleges a violation of his civil rights does not 1 || foreclose the possibility that he is seeking damages for alleged violations of his civil rights 2 || under California law. The “mere presence of a federal issue in a state cause of action does 3 ||not automatically confer federal question jurisdiction.” Merrell Dow Pharms., Inc. v. 4 || Thompson, 478 U.S. 804, 813 (1986). It 1s certainly not clear from the face of Plaintiff’s 5 ||Complaint that he intended to seek relief under § 1983. However, Plaintiff's Objection to 6 Removal makes clear he in fact does not intend seek relief under § 1983 and pursue 7 ||this action in federal court. Doc. No. 7. “The plaintiff is the master of his or her own 8 ||complaint and is free to ignore the federal cause of action and rest the claim solely on a 9 || state cause of action.” Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1370 (9th Cir. 10 |} 1984). 11 Accordingly, the mere possibility that Plaintiff could have brought a civil rights 12 ||claim under § 1983 does not support a finding of federal jurisdiction. Based on the 13 || aforementioned, IT IS HEREBY ORDERED the Court GRANTS the motion to remand. 14 || Pursuant to 28 U.S.C. § 1447(c), this action is REMANDED to the Superior Court for 15 || the State of California, County of San Diego, where it was originally filed and assigned 16 || case number 37-2019-00034482. Defendant’s request for screening pursuant to 28. U.S.C. 17 1915A is denied as moot. 18 IT IS SO ORDERED. 19 20 21 |}DATED: January 16, 2020 22 23 JQHN A. HOUSTON NITED STATES DISTRICT JUDGE 25 26 27 28