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Marlo Porter v. Director of Department of Correcstions


April 3, 2013


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Plaintiff Marlo Porter ("Plaintiff") is a prisoner proceeding pro se in a civil suit seeking declaratory and monetary relief against for the Defendants for alleged violations of the civil and common laws of the State of California. (Doc. 2, Ex. A at 12, ¶ 1-4). Originally filed in the Kern County Superior Court, Defendant's notice of removal on February 15, 2013, brought the matter before this Court. (Doc. 1 and 2). On March 4, 2013, Plaintiff filed his opposition to Defendant's request for removal (Doc. 7), which the Court construed as a motion to remand. (Doc. 8).*fn1 Defendants filed their collective response to Plaintiff's motion for remand on March 29, 2013. (Doc. 9). Pending before the Court is Plaintiff's motion for remand.

For the reasons set forth below, the Court REMANDS this matter to the Kern County Superior 1 Court. 3 2


Under 28 U.S.C. ' 1441(a), a defendant may remove from state court any action Aof which the 5 district courts of the United States have original jurisdiction.@ Federal courts Ashall have original 6 jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.@ 7

28 U.S.C. ' 1331. Because of the ACongressional purpose to restrict the jurisdiction of the federal 8 courts on removal,@ the removal statute is strictly construed against removal.*fn2 Shamrock Oil & Gas 9 Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872 (1941) superseded by statute on other grounds as stated in Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 697 (2003); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). Federal jurisdiction Amust be rejected if there is any doubt as to the right of removal in the first instance.@ Duncan, 76 F.3d at 1485;Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Courts Amust consider whether federal jurisdiction exists, even if no objection is made to removal, and even if both parties stipulate to federal jurisdiction.@ Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (citations omitted).


While a lack of reference to federal law is not dispositive in determining whether federal jurisdiction exists, N. Am. Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir. 1978), Defendants' contention that this action arises under federal law is not supported by a review of Plaintiff's complaint. Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir. 1979) (existence of federal jurisdiction determined by the complaint at the time of removal). To determine whether a federal question exists that would permit the Court to exercise federal jurisdiction, the Court applies the "well-pleaded complaint" rule. See e.g., Caterpillar, Inc., v. Williams, 482 U.S. 386, 392 (1987). This rule "provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff=s properly pleaded complaint.@ Caterpillar, Inc., 482 U.S. at 392 (1987) 2 (internal quotations and citations omitted). AThe rule makes the plaintiff the master of the claim; he or 3 she may avoid federal jurisdiction by exclusive reliance on state law.@ Id. 4

i.Plaintiff's reference to Wallis v. Baldwin does not trigger federal subject matter jurisdiction.

A review of the face of the complaint supports Plaintiff's motion for remand. In their notice of 7 removal, Defendants use Plaintiff's reference to Wallis v Baldwin, 70 F.3d 1074 (9th Cir. 1995) to 8 support their contention that Plaintiff inadvertently states an "Eighth Amendment claim for deliberate 9 indifference." (Doc. 2 at 2, ¶ 1). However, Plaintiff explains that he referenced Wallis because he did not believe state laws were available. (Doc. 7 at 2, ¶ 1). The Court construes Plaintiff's use of Wallis as nothing more than a reference to demonstrate to the Court that Defendants could be subject to liability for their actions. Reference to an isolated federal case is insufficient evidence for this Court to assert subject matter jurisdiction over this matter. Therefore, REMAND is appropriate to the Kern County Superior Court.

ii. Reference to "knowingly, willfully, and maliciously" supports Plaintiff's state claim for punitive damages.

Defendants aver that Plaintiff's allegation that "Defendants acted "knowingly, willfully, and maliciously" in the face of a serious risk of harm" potentially*fn3 indicates a cause of action under 42 U.S.C § 1983, because it fails to a state a claim for negligence under state law. (Doc. 2 at 4-5)(emphasis added). However, the Court notes that Plaintiff seeks punitive damages for Defendants' conduct. (Doc. 2 at 13, ¶ 2). Given that the California exemplary damage statute requires a plaintiff prove that a defendant acted with "malice" toward the plaintiff, Cal. Civ. Code § 3294(a)(West), and that "malice" is defined as "a willful and conscious disregard for the rights.of others" (Cal. Civ. Code § 3294(c)(1)(West)), Plaintiff's claim that Defendants acted "knowingly, willfully and maliciously" can be construed in support of his state claim for punitive damages. The Court will not 2 imply a "potential" federal claim where a state claim is supported by the face of the complaint. 3

Therefore, REMAND is appropriate to the Kern County Superior Court. 4

iii. Plaintiff's express reference to the California Civil Code does not imply a federal cause of action.

The Court rejects Defendants' bifurcated argument that by referencing the California Civil Code, Plaintiff could be "potentially" asserting a claim under 42 U.S.C. § 1983. In their opposition to 8 remand, Defendants indicate that Plaintiff's use of Cal. Civ. Code § 52.3 as the basis of his complaint 9 fails because the statute provides Plaintiff no private cause of action. (Doc. 9 at 4-5). On this basis, Defendants note that "since § 52.3 encompasses the Constitutions and laws of both the State of California and the United States, [Plaintiff] potentially states a federal claim arising under 42 U.S.C Section 1983."*fn4 Id. at 5.

Although Plaintiff could have brought this action in this Court pursuant to 42 U.S.C. ' 1983 and alleged that Defendants violated his rights under the United States Constitution, he did not do so. The Court takes judicial notice that Plaintiff previously litigated a matter in this Court pursuant to 42 U.S.C. § 1983.*fn5 In comparison, here, Plaintiff unequivocally asserts that jurisdiction is brought pursuant to provisions of the California Civil Code and California Code of Civil Procedure. (Doc. 2, Ex. 1 at 3, ¶ 1). This fact amply indicates to the Court that Plaintiff is fully aware of his option to litigate federal constitutional claims in this Court. Plaintiff=s decision to file suit in state court alleging state law claims demonstrates that plaintiff exercised his right to rely exclusively on state law. Caterpillar, Inc., 482 U.S. at 392. Therefore, REMAND is appropriate to the Kern County Superior Court. ///


For the above stated reasons, Court lacks subject matter jurisdiction over this action. Therefore, 3 the Court hereby ORDERS as follows: 4

1. This matter is REMANDED to the KERN COUNTY SUPERIOR COURT; and

2. The Clerk of Court is DIRECTED to close this matter, because this Order terminates the action in its entirety.


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