UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
December 3, 2009
HORACE A. BELL, PLAINTIFF,
SERGEANT FLIPPO, ET AL., DEFENDANTS.
(Kern County Superior Court case S-1500-CL-237799)
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE REMANDED TO KERN COUNTY SUPERIOR COURT (Doc. 1.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Plaintiff Horace A. Bell ("Plaintiff"), is a state prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. 1983. This action was initiated by civil complaint filed by Plaintiff in the Kern County Superior Court on April 20, 2009 (Case S-1500-CL-237799). On September 22, 2009, Plaintiff removed the action to the United States District Court for the Northern District of California. (Doc. 1.) On October 21, 2009, the case was transferred to the Eastern District of California. (Doc. 4.)
Under 28 U.S.C. § 1441(a), "the defendant or the defendants" may remove from state court any action "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a) (emphasis added). Removal is available to defendants to an action, not plaintiffs. See id. "A plaintiff who commences his action in a state court cannot effectuate removal to a federal court even if he could have originated the action in a federal court. . ." Am. Int'l Underwriters, Inc. v. Cont'l Ins. Co. 843 F.2d 1253, 1260 (9th Cir. 1988). "'The right to remove a state court case to federal court is clearly limited to defendants.'" Baker v. Oakland Unified School Dist., 203 Fed.Appx. 117 (9th Cir. 2006) quoting Am. Int'l Underwriters 843 F.2d at 1260. 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 (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).
Because removal is not available to a plaintiff, Plaintiff does not have the right to remove his state court case to federal court. Moreover, Plaintiff cannot simultaneously litigate his complaint in both federal and state forums. Therefore, the court must reject federal jurisdiction and remand Plaintiff's action to the Kern County Superior Court.
Based on this analysis, the court finds that Plaintiff's lawsuit must be remanded to the Kern County Superior Court. Accordingly, IT IS HEREBY RECOMMENDED that:
1. This action be REMANDED to the Kern County Superior Court; and
2. The Clerk be DIRECTED to serve notice of the remand and close the case. 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 thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is 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).
IT IS SO ORDERED.