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Michael Daniels v. California Attorney General

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


June 25, 2012

MICHAEL DANIELS, PLAINTIFF,
v.
CALIFORNIA ATTORNEY GENERAL, ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel. On April 30, 2012, he filed a document entitled "Request and Motion for Removal from a State Court to a Federal District Court," along with an application to proceed in forma pauperis. As discussed below, the court grants plaintiff's application to proceed in forma pauperis, but recommends that this case be remanded to the Sacramento County Superior Court.

Plaintiff's in forma pauperis application makes the showing required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, by separate order, the court directs the agency having custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as set forth in 28 U.S.C. § 1915(b)(1) and (2).

Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b).

Plaintiff states that he initially filed this civil action in the Sacramento County Superior Court (Case No. 11-102881) on April 29, 2011. Dckt. No. 1 at 2. On April 30, 2012, he filed the instant request for removal. Id. This action must be remanded to the state court because plaintiff is not authorized to effect such a removal. Under the removal statute, only "the defendant or the defendants" may remove from state court any action "of which the district courts of the United States have original jurisdiction." See 28 U.S.C. § 1441(a) (emphasis added); accord 28 U.S.C. § 1443 (listing types of civil rights cases that "may be removed by the defendant to the district court"). This action must therefore be remanded to the state court. See 28 U.S.C. § 1447(c).

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's request to proceed in forma pauperis is granted.

2. Plaintiff shall pay the statutory filing fee of $350. All payments shall be collected in accordance with the notice to the Director of the California Department of Corrections and Rehabilitation filed concurrently herewith.

Further, IT IS HEREBY RECOMMENDED that this case be remanded to the Superior Court of the State of California in and for the County of Sacramento.

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)(l). 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. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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 (9th Cir. 1991).

20120625

© 1992-2012 VersusLaw Inc.



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