UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 10, 2010
BRETT ALEXANDER HALE, PLAINTIFF,
FELIX IGBINOSA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER REMANDING ACTION TO FRESNO COUNTY SUPERIOR COURT
Plaintiff Brett Alexander Hale ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court are five motions from Plaintiff requesting that the Court screen his complaint or remand this action back to state court.
This action came before this Court upon removal from the Fresno County Superior Court. Plaintiff filed a motion to remand this case back to state court. (Doc. #5.) The Court denied Plaintiff's first motion. (Doc. #11.) The Court interpreted Plaintiff's original complaint as stating federal claims under 42 U.S.C. § 1983 for the violation of Plaintiff's rights under the Eighth Amendment. Plaintiff has since filed a first, and later a second amended complaint that purposefully omitted his federal claims. Plaintiff again seeks remand arguing that his complaint only states state law claims.
The Court notes at the outset that Plaintiff's motions to remand are procedurally untimely. 28 U.S.C. § 1447(c) states that "[a] motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a)." As a matter of semantics, Plaintiff's motions should be denied as procedurally defective. However, the Court also notes that it has discretion to exercise jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c). As a matter of comity with the state court, it is preferable for Plaintiff's state law claims to be resolved by state courts. Accordingly, this Court will decline to exercise jurisdiction over Plaintiff's state law claims and will remand this case back to state court.
Accordingly, it is HEREBY ORDERED that this action be REMANDED to Fresno County Superior Court. The clerk is directed to serve a copy of this order on the Fresno County Superior Court and to serve the parties in the customary manner. All outstanding motions in this case are dismissed.
IT IS SO ORDERED.
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