The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
[Fresno Superior Court case #08CECG02352]
FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S REQUEST FOR REMAND BE GRANTED
OBJECTIONS, IF ANY, DUE IN 30 DAYS
This is a civil action filed by plaintiff Paul C. Hamilton ("plaintiff"), a state prisoner proceeding pro se. This action was initiated by civil complaint filed by plaintiff in the Fresno County Superior Court on July 14, 2008 (case #07CECG02352). On March 30, 2009, defendants Yates, Mattingly, Trimble and Spearman ("defendants") removed the case to federal court by filing a Notice of Removal of Action pursuant to 28 U.S.C. § 1441(b). (Doc. 2.) On April 10, 2009, plaintiff filed an opposition to defendants' notice of removal, which the court here construes as a request for remand. (Doc. 8.)
Plaintiff is a state prisoner proceeding pro se in a civil complaint. Plaintiff is presently incarcerated at Pleasant Valley State Prison ("PVSP") in Coalinga, California, where the events at issue allegedly occurred. Plaintiff names as defendants J. A. Yates (Warden), J. Mattingly (Assistant Warden ("AW")), M. H. Trimble (AW), and M. E. Spearman (AW). All of the defendants are employees of the California Department of Corrections and Rehabilitation at PVSP.
Plaintiff makes the following allegations. On May 31, 2007, a riot began at PVSP between Hispanics and Blacks. Two days later, by order of J. Mattingly, all of the Black inmates and some of the Hispanic inmates were subjected to a lockdown. Every Black inmate, including those who were not involved in the riot, not present on the yard at the time of the riot, locked in their cells, crippled in wheelchairs, and mobility impaired, gang members and non-affiliates, were all ordered locked down, but only a portion of the Hispanic inmates, the South Siders, were locked down. Plaintiff is not an African-American, but because he has black skin, he is considered a member of the Black inmate population by PVSP. Plaintiff remained on lockdown for over 5 1/2 weeks and was deprived of outdoor exercise during that time. As a result of lack of exercise, plaintiff suffers serious back pains. Plaintiff was informed in July 2007 that although he is documented ethnically as "Other," he was ordered to be locked down with the Blacks (African-Americans) because he had described himself as black in a letter.
For weeks prior to June 30, 2007, plaintiff noticed consistently strong odors of feces and urine while in his cell. Plaintiff requested to be moved to a different cell, but the request was denied.
Plaintiff filed appeals at the prison, complaining about discrimination, deprivation of outdoor exercise, and the strong odors in his cell. Plaintiff also notified the Warden, who never responded. Defendants Mattingly, Spearman, and Trimble either denied or only partially granted the complaints. Plaintiff alleges that reprisals have been taken against him for filing the prison appeal complaining about discrimination.
Plaintiff requests monetary damages as relief.
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. Removal of an action under 28 U.S.C. § 1441(b) depends solely on the nature of the plaintiff's complaint, and is properly removed only if "a right or immunity created by the Constitution or laws of the United States [constitutes] an element, and an essential one, of the plaintiff's cause of action." Gully v. First National Bank in Meridian, 299 U.S. 109, 112 (1936). The plaintiff is the master of his or ...