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Iloff v. Herrera

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


June 7, 2010

KEVIN ILOFF, PLAINTIFF,
v.
C. HERRERA, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER VACATING FINDINGS AND RECOMMENDATIONS AND DIRECTING THE CLERK TO FILE THE COMPLAINT (Doc. 10)

Plaintiff is a state prisoner proceeding pro se in this civil rights action. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

The action was initiated by defendants' October 7, 2008, Notice of Removal. Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441(b) on the ground that it is a civil action for allegedly discriminatory treatment of plaintiff and denial of his First Amendment right to practice his religion. This Court has original jurisdiction of such claims pursuant to 28 U.S.C. § 1331. Plaintiff opposed the removal to this Court.

However, on April 14, 2010, findings and recommendations were entered, recommending that the action be remanded to the Fresno County Superior Court because the complaint did not contain any reference to the First Amendment, the U.S. Constitution, or federal statutes. The Court noted that "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). Because plaintiff's complaint made no reference to any federal causes of action, the court recommended that the action be remanded to state court.

On April 27, 2010, defendants filed objections to the findings and recommendations supported by a declaration of Matthew Kubicek, counsel for defendants. Mr. Kubicek advised that defendants had mistakenly filed in this court only a portion of plaintiff's Fresno County Superior Court complaint; they had failed to include that portion in which plaintiff alleges defendants conspired to deprive plaintiff of group worship and thereby denied him equal protection and violated his First Amendment rights. (Compl. p. 6.) .

Pages 4-13 of defendants' exhibit is the full complaint filed in Fresno County Superior Court. On page 6 of the complaint attached as an exhibit, plaintiff alleges that

Defendants entered into a conspiracy under the color of authority to deprive plaintiff and fellow religious worshipers the ability for group worship, with out a genuine penological interest and by doing so placed a substantial burden on plaintiffs ability to practice his religion with others of this faith. Which further denied equal protection and vilation [sic] of the first amendment rights.

(Compl. p 6.) Plaintiff further alleges that defendants "did enter into a conspiracy to deprive plaintiff of the First Amendment right to practice my religion by denying me access to the essential items to practice my religion." (Compl. p. 8.) The full complaint clearly alleges a violation of plaintiff's First Amendment right to free exercise of his religious beliefs.*fn1

Defendants correctly cite Caterpillar's holding that plaintiff "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392. Plaintiff does not so rely. His complaint clearly seeks relief under the First Amendment. This Court therefore retains original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(b).

Accordingly, IT IS HEREBY ORDERED that:

1. The April 14, 2010, recommendation of dismissal is vacated; and

2. The Clerk's Office shall file in this action the full complaint attached to defendants' declaration as the operative pleading in this case.

IT IS SO ORDERED.


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