IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 4, 2009
MARK ROLL, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REMANDING ACTION TO STATE COURT
Plaintiff Mark Roll ("Plaintiff"), proceeding pro se and in forma pauperis, filed the instant action on November 4, 2008. Pursuant to the Court's order, he filed a Fourth Amended Complaint on September 18, 2009.
On September 28, 2009, the Court issued an order to show cause why the action should not be remanded to state court. On November 2, 2009, Plaintiff filed a response that demonstrates that the action should, in fact, be remanded.
In the order to show cause, the Court explained that Plaintiff could not "remove" this action from state court:
When the action was filed in this Court, however, it was not removed by defendants in the state action. By definition, an action can only be removed by a defendant. 28 U.S.C. § 1446(a). Here, Plaintiff filed the complaint, along with a civil cover sheet indicating that the action was removed from state court. No defendant has been served or made an appearance in this action.
Plaintiff confirms that this action was originally filed in the Sonoma County Superior Court and later transferred to Fresno County Superior Court at the request of defendants. Plaintiff states that he attempted to remove it to this Court based on federal question jurisdiction and his belief that he could not receive a fair trial in state court.
As this action has not been properly removed, it is an original action and cannot proceed because of the pending state court litigation. Plaintiff chose to file his action in state court and he continued with his litigation for over one year. Defendants have appeared in state court and defended the action. Plaintiff cannot now decide that he would rather proceed in this Court.
Based on this Court's respect for state court proceedings and the possibility that Plaintiff's claims are precluded by the principle of res judicata, this action is REMANDED to the Fresno County Superior Court.
IT IS SO ORDERED.
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