The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
This is a civil rights action filed pro se by a California state prisoner. The action currently proceeds on plaintiff's third amended complaint after the Court of Appeals reversed in part this court's prior judgment. Before the court are plaintiff's motion for severance (Doc. No. 83), plaintiff's motion for order for contempt of court (Doc. No. 89), and defendant's motion to declare plaintiff a vexatious litigant (Doc. No. 85). For the reasons outlined below, these motions are denied, and defendant is directed to respond to the Third Amended Complaint within 10 days of the filing date of this order.
Plaintiff originally filed this action in state court on August 1, 2006, alleging, among other things, violations of his rights under the Eighth and Fourteenth Amendments of the United States Constitution by twelve defendants who either were or had been employed at the California Medical Facility where plaintiff was incarcerated. See Doc. No. 1. Defendants removed the complaint to this court under 28 U.S.C. § 1441(b), which authorizes removal of state court actions that raise a federal question over which the federal courts exercise original jurisdiction. See 28 U.S.C. § 1441(b); Doc. No. 2.
On October 16, 2009, after several rounds of screening, this court dismissed the remaining claims against the remaining defendants and entered judgment. See Doc. Nos. 57, 66, 67. The plaintiff filed a timely appeal and, on March 23, 2011, the Court of Appeals remanded the action, affirming in part and reversing in part this court's October 16, 2009 judgment. See Doc. Nos. 68, 71, 74.
In particular, the Court of Appeals found that, liberally construed, the Third Amended Complaint stated a claim for relief against defendant Shankland for denial of access to the courts. See Doc. No. 71 at 2-3.
On April 21, 2011, this court directed service of the Third Amended Complaint against defendant Shankland. See Doc. No. 75. The current motions followed.
Plaintiff moves under 28 U.S.C. § 1447(c) and Federal Rule of Civil Procedure 21 to remand this action to the state court "for lack of jurisdiction."
In essence, plaintiff appears to allege that this court is required to remand his case to the state court because this court has dismissed his federal claims, and has declined to exercise supplemental jurisdiction over his state law claims. See Doc. No. 83 at 5. Defendant opposes the motion, noting, among other things, that this court has never addressed its supplemental jurisdiction over the plaintiff's state law claims. See Doc. No. 82 at 4.
Plaintiff is seeking remand under 28 U.S.C. § 1447(c), which provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded..." See 28 U.S.C. § 1447(c) (outlining procedures after removal of cases from state court). However, this court retains subject matter jurisdiction over this action because the case has been remanded from the Court of Appeals to proceed on plaintiff's Third Amended Complaint. See Caldwell v. Puget Sound Electrical Apprenticeship and Training Trust, 824 F.2d 765, 767 (9th Cir. 1987) (subject of controversy and parties properly before district court after reversal by court of appeals because mandate of court of appeals, once issued, returns to the district court).
As to plaintiff's state law claims, this federal court has subject matter jurisdiction over plaintiff's related state-law claims, which it may or may not choose to exercise. See Carlsbad Technology, Inc. v. HIF BIO, Inc,, 556 U.S. 635, -, 129 S. Ct. 1862, 1866-67, 173 L. Ed. 2d 843, 849 (2009), citing 28 U.S.C. § 1367(a). While a district court may decline to exercise supplemental jurisdiction under certain circumstances, this court has not yet done so. See 28 U.S.C. § 1367(c). Moreover, plaintiff's "denial of access" claim is a federal claim over which the court would certainly have jurisdiction. In light of this continuing jurisdiction, there is no basis to remand the action back to the state court under 28 U.S.C. § 1447.
There is additionally no basis for "severance" of the dismissed defendants under Federal Rule of Civil Procedure 21, as there is no indication that the dismissed defendants were misjoined or otherwise impermissibly brought into this action under Rule 20. See Coghlin v. Rogers, 130 F.3d 1348, 1350 (9th Cir. 1997) ("If the test for permissive joinder is not satisfied, a court, in its discretion, may sever the misjoined parties, so long as no substantial right will be prejudiced by the severance."); IO Group v. Does 1-19, 2010 U.S. Dist. LEXIS 133717, *8 (N.D. Cal., Dec. 7, 2010) ("If misjoinder is apparent, under Rule 21, the Court is authorized to 'drop' or 'sever' a misjoined party from the case.").
In light of this court's continuing subject matter jurisdiction over the remanded federal claim and the state law claims, ...