The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REMANDING ACTION TO FRESNO COUNTY SUPERIOR COURT (Doc. 4)
This is a civil action filed by plaintiff David Leon("plaintiff"), a state prisoner proceeding pro. The action was removed from the Fresno County Superior Court to this Court by defendant Yates ("defendant") on December 19, 2008. On January 7, 2009, plaintiff filed a motion to remand. (Doc. 4). Defendant filed an opposition on January 9, 2009. (Docs. 4, 5)
Under 28 U.S.C. § 1441(a), a defendant may remove from state court any action "of which the district courts of the United States have original jurisdiction." Federal courts "shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
28 U.S.C. § 1331. Because of the "Congressional purpose to restrict the jurisdiction of the federal courts on removal," the removal statute is strictly construed against removal.*fn1 Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872 (1941); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Federal jurisdiction "must be rejected if there is any doubt as to the right of removal in the first instance." Duncan, 76 F.3d at 1485;Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Courts "must consider whether federal jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to federal jurisdiction." Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted).
In his notice of removal, defendant contends that plaintiff has alleged a denial of adequate medical care, thereby constituting a violation of Plaintiff's Eighth Amendment and state law rights. (Doc. 1, p.2:3-4.) "The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule, which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc., v. Williams, 482 U.S. 386, 392 (1987) (internal quotations and citations omitted). "The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id.
Defendant's contention that this action arises under federal law is not supported by a review of plaintiff's complaint. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979) (existence of federal jurisdiction determined by the complaint at the time of removal). In his amended complaint, plaintiff requests that the Court exercise its pendent or supplemental jurisdiction that arises over the federal jurisdiction or law, statute or constitution. (Doc. 1-3, Exh.A). However, plaintiff lists negligence and premises liability as the causes of action, and the court does not find any federal claims upon which this court has subject matter jurisdiction. Although plaintiff could have brought this action in this Court pursuant to 42 U.S.C. § 1983 and alleged that defendant violated his rights under the United States Constitution, he did not do so. Plaintiff's decision to file suit in state court utilizing a state civil complaint form alleging state law claims demonstrates that plaintiff exercised his right to rely exclusively on state law. Caterpillar, Inc., 482 U.S. at 392.
This Court lacks subject matter jurisdiction over this action and accordingly, this Court hereby recommends that this action be remanded to the Fresno County Superior Court and that the Court's clerk serve a copy of this order on the Fresno County Superior Court and to serve the parties in the customary manner.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being served with these Findings and Recommendations, the parties may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Plaintiff's Request for Sanctions, Costs and Fees
Plaintiff has also requested an investigation to determine whether defense counsel has acted in violation of Rule 11(b)(1) for removing this action. Plaintiff has also requested costs and attorney fees.
The Court does not find that sanctions or costs are warranted against defendant nor his counsel in this case. The confusion over federal jurisdiction arises from plaintiff's wording in his amended complaint. Further, plaintiff's request for attorney's fees is without merit. Plaintiff is representing himself in this action. Because plaintiff is not represented by an attorney, he is not entitled to recover attorney's fees if he prevails. Gonzales v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987).
Based on the foregoing, plaintiff's request for sanctions, costs and attorneys ...