Kern County Superior Court Case No. S-1500-CL-237799.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING PLAINTIFF'S MOTION TO REMAND
ORDER DISMISSING FEDERAL CLAIMS AGAINST DEFENDANTS FLIPPO AND SMITH FOR FAILURE TO STATE A CLAIM, AND REMANDING ACTION TO KERN COUNTY SUPERIOR COURT
Order on Motion to Remand and Screening Order
This civil rights action was filed in Kern County Superior Court by Plaintiff Horace Bell, a state prisoner proceeding pro se. Plaintiff alleges violations of his rights under the United States Constitution and California Constitution by Defendants C. Smith, T. Kurtz, N. Grannis, G. Flippo, A. Hedgepeth, N. Dill, and C. Smith, all of whom are or were employed by the California Department of Corrections and Rehabilitation. Defendants Flippo and Smith removed the action to this court on December 2, 2009. Plaintiff filed an opposition to the removal on December 14, 2009, which shall be treated by the Court as a motion to remand.
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. "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., and existence of federal jurisdiction is determined by the complaint at the time of removal, Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979).
In this instance, Plaintiff specifically alleges claims for relief arising from the violation of the United States Constitution. Because Plaintiff's complaint sets forth federal claims, Defendants were entitled to remove the action to this court and Plaintiff's opposition to the removal is without legal merit. Also without merit is Plaintiff's argument that Defendants are already in federal court on this case. A plaintiff may not remove a case, and to the extent that Plaintiff filed a complaint in federal court which is duplicative of the complaint he filed earlier in state court, which appears to be the case, Plaintiff's decision to file duplicative actions does not deprive Defendants of their right to remove the earlier-filed state court case for consideration.*fn1
For these reasons, Plaintiff's motion to remand is denied.