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John Ray Gholar v. James A. Yates

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 7, 2013

JOHN RAY GHOLAR
PLAINTIFF,
v.
JAMES A. YATES,
DEFENDANT.

A M E N D E D F I N D I N G S A N D RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION TO REMAND BE DENIED (ECF Nos. 3 & 15) THIRTY-DAY OBJECTION DEADLINE

Plaintiff John Ray Gholar ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing a complaint in Fresno County Superior Court. Defendants removed to this Court on July 19, 2012. (ECF No. 1.) Before the Court is Plaintiff's Motion to Remand, in which Plaintiff contends that the Superior Court of Fresno County has "concurrent jurisdiction, with diversity, federal question and concurrent subject matter authority." (ECF No. 3.) On February 6, 2013, the Court issued a findings and recommendations. (ECF No. 15.) On March 6, 2013, Plaintiff filed a response to the findings and recommendations. (ECF No. 16.) Due to inadvertent an clerical error, the Court now amends its original findings and recommendation. Fed. R. Civ. Pro. 60(a). The parties are afforded a new objection time.

Federal law provides that a defendant may remove an action filed in state court if "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. In the instant Motion, Plaintiff states that his complaint "is about a state official consciously violating constitutional and civil rights." (ECF No. 3 at 3.) Because Plaintiff concedes that he is seeking to vindicate his rights under the United States Constitution, this Court has original jurisdiction over this matter. Therefore, Defendants' removal of this action was proper.

Accordingly, the Court HEREBY RECOMMENDS that Plaintiff's motion to remand, filed on August 1, 2012, be DENIED.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

UNITED STATES MAGISTRATE JUDGE

20130307

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