United States District Court, N.D. California
DONALD BEASLEY, Plaintiff,
R.S. AGTARAP, Defendant.
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER REMANDING ACTION TO STATE COURT
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
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
The Clerk shall close the file and terminate any pending
IT IS SO ORDERED.