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Hakim Akbar-Jones v. Michael Mcdonald

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


January 23, 2013

HAKIM AKBAR-JONES,
PLAINTIFF,
v.
MICHAEL MCDONALD, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a prisoner proceeding pro se, has removed this civil action from Lassen County Superior Court. The removal of cases from state court is governed by 28 U.S.C. §§ 1441-1455. Pursuant to 28 U.S.C. § 1446(c)(4), this court is required to examine the notice of removal and determine whether the removal should be permitted or be summarily remanded. In addition, defendant has filed a motion to remand (Doc. 5).

28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants . . . ." The right to remove a case is therefore vested in the defendant or defendants of an action, not in the plaintiff. Indeed, a plaintiff is precluded from removing actions to federal court. See Progressive West Ins. Co. v. Preciado, 479 F.3d 1014, 1018 (9th Cir. 2007) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.C. 100 (1941)).

Based on the foregoing, the undersigned finds plaintiff has no right to remove this action from the State court. It is therefore recommended that defendant's motion to remand be granted and this action be remanded back to the Lassen County Superior Court.

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 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20130123

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