The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING
WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR REMAND AND DENYING
PLAINTIFF'S MOTION FOR SANCTIONS
(ECF No. 10)
CASE TO REMAIN OPEN
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), and removed to this Court on August 27, 2012 by Defendants Borrero, Gricewich, Phillips, Tarnoff, Wilson and State of California, based upon federal question jurisdiction. (Id.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B) and Local Rule 302 of the United States District Court for the Eastern District of California.
On October 23, 2012, findings and recommendations denying without prejudice Plaintiff's motion for remand and denying Plaintiff's motion for sanctions (F&R Denying Remand and Sanctions, ECF No. 10) were filed in which the Magistrate Judge recommended that Plaintiff's motions for remand and for improper removal sanctions (ECF Nos. 5, 8) be DENIED. The parties were notified that objection, if any, was due within fourteen days.
On December 3, 2012, Plaintiff filed objections to the Magistrate Judge findings and recommendations. (Obj. to F&R, ECF No. 13.) Defendants did not file a reply to the objections and the time for doing so has passed. (F&R Denying Remand and Sanctions at 7:10-12.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
In his Objections, Plaintiff argues non-moving Defendant Adams has been served (Obj. to F&R at 1:23-25); his underlying Complaint does not allege any federal claim (id. at 2:18-22); the Eleventh Amendment bars the Court from analyzing his state law claims (id. at 6:20-23); the parties have stipulated to the absence of federal jurisdiction and to remand (id. at 3:2-4); and sanctions against Defendants for improper removal should be granted given Defendants' non-opposition to the remand motion and the absence of any federal claim in the Complaint. (Id. at 7:24-8:4.)
Plaintiff's objections lack merit and fail to raise any material issue of law or fact under the findings and recommendations. He re-argues the merits of his remand motion. But apart from raising a purported Eleventh Amendment bar to the Court's review of his state law claims, he merely re-hashes arguments previously reviewed by the Court and found insufficient.
Nothing in the record establishes that Defendant Adams had been served at the time the removal petition was filed. Transport Indem. Co. v. Financial Trust Co., 339 F.Supp. 405, 407 (C.D. Cal. 1972).
The Complaint on its face alleges causes of action arising at Kern
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.) These claims implicate the First, Eighth, and
Fourteenth Amendments of the U.S. Constitution and are within the
original federal question jurisdiction of this Court.*fn2
28 U.S.C. §§ 1331, 1441. Actions of which the District Courts
have original jurisdiction are not subject to remand irrespective of
whether the plaintiff intended to allege a federal or state claim, if
a federal cause of action exists." Lennard v. Local 282 Pension Trust
Fund, 391 F.Supp. 554, 557 (D.C.N.Y. 1975), citing Francis H. Leggett
& Co., v. O'Rourke, 237 F.Supp. 561 (S.D.N.Y. 1964); see also Johnson
v. Jumelle, 359 F.Supp. 361, 363 (D.C.N.Y. 1973) (where a case is
properly removed to federal court, the jurisdiction of the state court ceased
and not even the consent of all the parties could divest federal
jurisdiction and confer state court jurisdiction absent statutory
authority.) The Court is not constrained from determining its own
jurisdiction. Attorneys Trust v. Videotape Computer Products, Inc., 93
F.3d 593, 600 (9th Cir.1988); see also Bernstein v. Universal
Pictures, Inc., 517 F.2d 976, 979 (C.A.N.Y. 1975).
Nor does the Eleventh Amendment deprive the Court of jurisdiction over actions involving allegedly unlawful state action. Vines. v. Howard, 676 F.Supp. 608, 613 (E.D. Pa. 1987). The existence of cognizable supplemental state law claim(s) as asserted by Plaintiff in his objections would not divest this Court of jurisdiction over implicated federal claims. 28 U.S.C. 1367.
Plaintiff's argument that any federal claims are not substantial, but merely ancillary to state law claims is factually unsupported. Warthman v. Genoa Township Bd. of Trustees, 549 F.3d 1055, 1064-65 (6th Cir. 2008); Hirschback v. NVE Bank, 496 F.Supp.2d 451, 454-55 (D.N.J. 2008).
Defendants statement of non-opposition, which is expressly conditioned on "the understand that Plaintiff is abandoning any federal claims that he may have asserted and is limiting his lawsuit to state law claims upon remand"*fn3 , is not sufficient to waive removal rights, or divest federal jurisdiction and confer state court jurisdiction. Nowhere in the record does it appear that Plaintiff has effectively waived and abandoned federal claims. See Grubb v. Donegal Mut. Ins. Co., 935 F.2d 57, 59 (a waiver must be "clear and unequivocal".)
It remains that original federal question jurisdiction exists under the Complaint. Plaintiff is not entitled to remand unless and until original federal question jurisdiction no longer exists, Johnson v. Circuit City Stores, Inc., 71 F.Supp.2d 1026, 1028-29 (N.D. Cal. 1999), e.g., through amendment or dismissal.
Plaintiff's request for Rule 11(b) sanctions is not supported by facts establishing removal was objectively unreasonable for the reasons stated above, such that sanctions are ...