The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR REMAND AND DENYING PLAINTIFF'S MOTION FOR SANCTIONS (ECF Nos. 5, 8) FOURTEEN (14) DAY DEADLINE
Plaintiff Jason Earl Jones is a state prisoner proceeding pro se in this action originally filed on November 3, 2011 in Kern County Superior Court.*fn1 (ECF No. 1, Ex. A.) All Defendants except Defendant Adams have been served. (ECF No. 1 at 2.) Defendants Borrero, Gricewich, Phillips, Tarnoff, Wilson and State of California ("Defendants") removed this action from state court based upon federal question jurisdiction on August 27, 2012. (Id.) Plaintiff declined Magistrate Judge jurisdiction. (ECF No. 4.)
Plaintiff filed a motion for remand on September 17, 2012. (ECF No. 5.) Defendants filed a statement of non-opposition to Plaintiff's motion for remand on September 21, 2012.*fn2 (ECF No. 7.) Plaintiff filed a motion for sanctions on September 26, 2012 pursuant to Fed. R. Civ. P 11(b) for Defendants' improper removal. (ECF No. 8.) Defendants filed opposition to the motion for sanctions on October 3, 2012. (ECF No. 9.) The motions for remand and for sanctions are now before the Court.
Plaintiff's Complaint alleges causes of action arising at Kern Valley State Prison ("KVSP") for civil rights and state law violations including denial of access to court, due process, equal protection, imposition of cruel and unusual punishment, retaliation for exercise of constitutional rights, deliberate indifference to medical needs and prison conditions, interference with prison mail, transgressions relating to rules violations, prison programming, prison records, libel, general negligence and medical negligence. (Notice of Removal, Ex. A. at 7, 9-28.)
Named as Defendants are corrections and medical staffers at KVSP, the California Department of Corrections and Rehabilitation ("CDCR") and the State of California. (Id. at 3-28.)
Plaintiff seeks monetary, declaratory and injunctive relief. (Id. at 3.)
Plaintiff argues removal was defective in that this action does not arise under § 1983. The alleged civil rights violations, according to Plaintiff are incidental to state law causes of action and arise under the California Constitution rather than the U.S. Constitution, such that there is no federal question jurisdiction. Defendants are "racketeers" and any action against them would be brought under 18 U.S.C. § 1964, a statute not alleged in the Complaint.*fn3
Defendants argue Plaintiff's Complaint sets forth federal claims such that removal was proper under 28 U.S.C. 1441(a) based upon alleged 42 U.S.C. § 1983 violations of the First, Eighth, and Fourteenth Amendments of the U.S. Constitution.
Plaintiff claims Defendants' removal of this action was frivolous, was based upon intentional misstatements and was for the purpose of delay such ...