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Baker v. Clerk, Board of Supervisors Alameda County

United States District Court, N.D. California, San Francisco Division

June 28, 2016

JOEL BAKER, Plaintiff,


          LAUREL BEELER United States Magistrate Judge


         Plaintiff Joel Baker filed a notice of removal. (See Notice - ECF No. 1.) He also filed an application to proceed in forma pauperis, which the undersigned granted. The document attached to his notice of removal - and apparently the case he removes - is his request for judicial notice apparently related to his own petition for a writ of mandamus against the Board of Supervisors. (See ECF No. 1 at 3.) In his removal notice, and in his request for judicial notice, he complains of the wrongful foreclosure of his property. (See id.) His civil cover sheet references that foreclosure and other claims such as tort and civil-rights violations. (See ECF No. 1-3.) The basis for those claims is not obvious from his filings.

         Only a defendant may remove a case from state court; it is not apparent that Mr. Baker is able to remove his case because he appears to be the petitioner there. Moreover, the removal notice does not attach the state complaint, and the court thus cannot tell whether there is any basis for federal jurisdiction. The court gives Mr. Baker two weeks to supplement his filing so that the court may evaluate its jurisdiction.


         1. Sua sponte screening - 28 U.S.C. § 1915(e)(2)

         The court recently granted the plaintiff leave to proceed in forma pauperis. (ECF No. 8.) A complaint filed by any person proceeding in forma pauperis under 28 U.S.C. § 1915(a) is subject to a mandatory and sua sponte review and dismissal by the court to the extent that it is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). Section 1915(e)(2) mandates that the court reviewing an in forma pauperis complaint make and rule on its own motion to dismiss before directing the United States Marshal to serve the complaint pursuant to Federal Rule of Civil Procedure 4(c)(2). Lopez, 203 F.3d at 1127. The Ninth Circuit has noted that ―[t]he language of § 1915(e)(2)(B)(ii) parallels the language of Federal Rule of Civil Procedure 12(b)(6).' Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998).

         Under Rule 12(b)(6) and § 1915(e)(2)(B), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. Rule 8(a)(2) requires that a complaint include a ―short and plain statement' showing the plaintiff is entitled to relief. ―To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.' Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal quotation omitted); see Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint need not contain ―detailed factual allegations, ' but the plaintiff must ―provide the ‗grounds‘ of his ‗entitle[ment]‘ to relief, ' which ―requires more than labels and conclusions'; a mere ―formulaic recitation of the elements of a cause of action' is insufficient. Twombly, 550 U.S. at 555.

         In determining whether to dismiss a complaint under Rule 12(b)(6), the court is ordinarily limited to the face of the complaint. Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Factual allegations in the complaint must be taken as true and reasonable inferences drawn from them must be construed in favor of the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court cannot assume, however, that ―the [plaintiff] can prove facts that [he or she] has not alleged.' Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). ―Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.' Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         When dismissing a case for failure to state a claim, the Ninth Circuit has ―repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.' Lopez, 203 F.3d at 1130 (internal quotations omitted).

         2. Removal Jurisdiction

         The right to remove a case to federal court is vested exclusively in the defendant or defendants. 28 U.S.C. § 1441(a). A plaintiff who has chosen to file a case in state court generally cannot later remove to federal court, even to defend against a counterclaim or cross-claim. See Progressive West Ins. Co. v. Preciado, 479 F.3d 1014, 1017 (9th Cir. 2007.)


         Preliminarily, it appears that Mr. Baker initiated the case in state court. If that is so, he cannot remove it because only a defendant can. That said, it is possible that the court is mistaken and there is a different procedural posture in state court. If Mr. Baker wants to proceed with his case here, he must attach a filed copy of the complaint that he is attempting to remove. Alternatively, if the procedural posture of his case means that he can proceed only in state court, he may submit a notice of voluntary ...

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