The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING DENIAL OF PLAINTIFF'S MOTION FOR REMAND (Doc. 8.) OBJECTIONS, IF ANY, DUE IN 30 DAYS
I. RELEVANT PROCEDURAL HISTORY
Jorge Salazar Robles ("Plaintiff"), a federal prisoner proceeding pro se, commenced this civil rights action on May 29, 2009, at the Kern County Superior Court, case number S-1500-CV-267478-DRL. (Doc. 1 at 1 ¶1, Exh. A.) On July 22, 2009, defendants Management & Training Corporation ("MTC"), Neil H. Adler and Burnett Rucker ("Defendants") removed this action to federal court. (Doc. 1.) On August 3, 2009, Plaintiff filed a motion to remand this action to the Kern County Superior Court. (Doc. 8.) On August 11, 2009, Defendants filed an opposition to Plaintiff's motion. (Doc. 9.) Plaintiff did not file a reply to the opposition. Plaintiff's motion to remand is now before the Court.
II. SUMMARY OF THE COMPLAINT
Plaintiff's complaint is based on events allegedly occurring at Taft Correctional Institution ("TCI"), where he is presently incarcerated. Plaintiff names as defendants MTC, Neil H. Adler (Warden), Lauri Watts (Health Services Administrator), and Burnett Rucker (Doctor). Defendants Adler, Watts and Rucker are employed by MTC at TCI.
Plaintiff alleges in the complaint as follows.
Prior to his incarceration at TCI, Plaintiff was housed at the CCA Detention Facility, a federal correctional facility in Arizona ("CCA"). At CCA, Plaintiff was scheduled for surgery to treat a painful hernia. However, he was transferred to TCI before the surgery took place.
Upon his transfer to TCI, Plaintiff requested the hernia surgery and was seen by Dr. Rucker, who found the hernia was not life-threatening and did not require surgery. Dr. Rucker prescribed Ibuprofen for Plaintiff's pain and recommended that Plaintiff wear an abdominal binder and avoid heavy lifting and strenuous activity. Plaintiff's condition was regularly monitored during several visits with a nurse at the TCI Health Services Department.
Dissatisfied with the treatment for his hernia, Plaintiff requested surgery via the prison grievance process, but his requests were denied. Plaintiff suffers extreme pain and cannot participate in his regular activities.
Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth and Fourteenth Amendments of the California and United States Constitution, for failing to perform the surgery which was scheduled before he was transferred to TCI. Plaintiff requests as relief monetary damages, immediate surgery, declaratory relief, and payment of attorneys fees and costs.
A. REMOVAL -- 28 U.S.C. § 1441
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 her own complaint and is free to ignore the federal cause of action and rest the claim solely on a state cause of action. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, (1913); Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976); La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 346 (3d Cir. 1974), cert. denied, 421 U.S. 937 (1975). However, under 28 U.S.C. § 1441(a), a defendant may remove from state court any action "of which the ...