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United States District Court, N.D. California

R.S. AGTARAP, Defendant.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge


Plaintiff, a California prisoner incarcerated at the California Training Facility ("CTF") and proceeding pro se, filed the complaint in the above-titled action (hereafter "Complaint") in Monterey County Superior Court against a single defendant, CTF guard R.S. Agtarap ("Agtarap"), who allegedly committed assault and battery upon plaintiff.

Pursuant to 28 U.S.C. § 1446, defendant removed the case to federal court on the ground that the Complaint "appears" to include both state law claims and a claim under 42 U.S.C. § 1983. (See Notice of Removal at 1:26.) Removal of a state court action that includes claims arising under federal law is authorized by 28 U.S.C. § 1441(b). Here, defendant states: "Plaintiff alleges that he suffered an assault and battery by Defendant. He further claims that his constitutional rights of due process were violated in the processing of his related administrative grievance." (See id. at 1:27 — 2:1.) Defendant attaches a copy of the Complaint as an exhibit to the notice of removal. Plaintiff has filed objections to the removal.

  A review of the complaint reveals that it does not, contrary to defendant's assertion, set forth a due process claim, or, for that matter, any other federal claim. The Complaint is on a form provided by the Superior Court. On page three of the form Complaint, where the causes of action are set forth, plaintiff has checked "General Negligence" and "Intentional Tort," both state law causes of action. Additionally, plaintiff writes in that section:

On 5/7/2003 officer R.S. Agtarap committed an Assault and Battery on plaintiff by poking plaintiff in the chest area, causing plaintiff to suffer pain, emotional distress and mental pain and suffering.
In the attachment describing his cause of action, plaintiff states:
Assault and Battery by Officer Agtarap 1. Owed duty to plaintiff to control his assaultive behavior, 2. Breached that duty, by assaulting plaintiff, 3. Injury resulted by the conduct of officer Agtarap poking plaintiff in the chest area, causing physical and mental injury.
The Complaint also includes an "Exemplary Damages Attachment," in which plaintiff states that the predicate facts supporting punitive damages, specifically, malice, fraud and oppression, can be found in the staff and state Board of Control complaints that he attaches as Exhibit A to the Complaint. The Complaint does not include any causes of action other than the two above-described state law claims; it does not contain an allegation that plaintiff's administrative appeals were not processed properly; it does not name as a defendant any individual who allegedly was involved in the processing of those appeals; and it makes no mention of due process or any other federal law.

  The single reference to "due process" is found in plaintiff's state court papers submitted in the administrative grievance attached as an exhibit to the Complaint. In that grievance, plaintiff states he is requesting a Second Level of review because the "interviewer['s]" cancelling of his First Level appeal "would be a due process violation." (See Compl. Ex. A at third unnumbered page.) To whatever extent plaintiff, in his prison administrative proceedings, may have asserted such conduct constituted a due process violation, plaintiff has not brought such claim in state court, either directly or by incorporation by reference,*fn1 nor is the "interviewer" who cancelled plaintiff's First Level Appeal named as a defendant in his state court action.*fn2

  Because plaintiff's Complaint does not include a claim for violation of due process, or any other claim arising under federal law, this Court lacks subject matter jurisdiction over the case. See 28 U.S.C. § 1331. Under such circumstances, the Court must remand the action to state court. See 28 U.S.C. § 1447(c).

  Accordingly, the above-titled action is hereby REMANDED to the Superior Court of the State of California in and for the County of Monterey.

  The Clerk shall close the file and terminate any pending motions.


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