IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 7, 2012
STATE OF CALIFORNIA, PLAINTIFF,
CHRISTOPHER JAMAR SUMMERS, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
On May 11, 2012, defendant removed this criminal case, which appears to be numbered "CR 177710 A," from the California Superior Court for the County of Marin ("Superior Court") to this federal court (see Dkt. No. 3 at 3).*fn1 Plaintiff also filed an application to proceed in forma pauperis that makes the showing required by 28 U.S.C. § 1915(a)(1). Although the undersigned grants defendant's application to proceed in forma pauperis, the undersigned recommends that this case be summarily remanded to the Superior Court.
Although very little is clear from plaintiff's initial filing, it is readily apparent that defendant removed the criminal case to an inappropriate federal district court. Pursuant to 28 U.S.C. § 1455(a), a defendant desiring to remove a criminal prosecution from a state court must file his or her notice of removal "in the district court of the United States for the district and division within which such prosecution is pending" (emphasis added). Here, defendant is being prosecuted in the Marin County Superior Court, and the U.S. District Court for the Eastern District of California is not the district within which Marin County sits. See E. Dist. Local Rule 120 (identifying the counties that fall within the Eastern District of California). Accordingly, the undersigned recommends that this case be summarily remanded to the Superior Court. See 28 U.S.C. § 1455(b)(4) ("If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand.").
For the foregoing reasons, IT IS HEREBY ORDERED that defendant's application to proceed in forma pauperis (Dkt. No. 2) be granted.
It is FURTHER RECOMMENDED that:
1. This case be summarily remanded to the California Superior Court for the County of Marin.
2. The Clerk of Court be directed to close this case and vacate all dates. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d).
Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).
IT IS SO ORDERED and RECOMMENDED.