United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND
DISMISSING CERTAIN CLAIMS AND DEFENDANTS (DOC. NOS. 19,
Francisco Sierra is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action filed pursuant to 42 U.S.C. § 1983. The matter
was referred to a United States Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
March 4, 2019, the assigned magistrate judge screened
plaintiff's first amended complaint and issued findings
and recommendations, recommending that this action proceed on
plaintiff's claim against defendant Thompson for
retaliation in violation of the First Amendment, against
defendant Castellanos for cruel and unusual punishment in
violation of the Eighth Amendment, and that all other claims
and defendants be dismissed. (Doc. No. 19.) The findings and
recommendations were served on plaintiff and contained notice
that any objections were to be filed within twenty-one days
after service. (Id. at 18.) After seeking and
receiving two extensions of time in which to file objections,
plaintiff filed objections on June 28, 2019. (Doc. No. 24.)
Contained within those objections is a motion for leave to
remand those causes of action that the magistrate judge
recommended be dismissed.
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C) and Local Rule 304, this court has conducted a
de novo review of this case. Having carefully
reviewed the entire file, including plaintiff's
objections, the court finds the findings and recommendations
to be supported by the record and by proper analysis.
court first addresses plaintiff's objections to the
findings and recommendations. The magistrate judge previously
screened the original complaint and found that it stated some
cognizable claims, but that those claims did not arise out of
the same transaction or occurrence and could thus not be
brought in the same lawsuit. (See Doc. No. 11.) In
that screening order, the magistrate judge provided plaintiff
with instructions on how to properly construct an amended
complaint. Plaintiff did not heed the direction given and, as
the magistrate judge has noted in the pending findings and
recommendations, “[t]he material factual allegations in
the FAC are largely identical to the factual allegations in
the [original] Complaint.” (Doc. No. 19 at 3.) Thus,
the magistrate judge recommended dismissal after finding that
plaintiff had failed to correct the deficiencies already
identified in the screening order.
respect to whether his claims are related to one another, in
his objections plaintiff merely cites to legal authority, and
makes no effort to explain how the claims presented in his
complaint arise from the same transaction or occurrence.
Here, the magistrate judge applied the correct legal
standard. The court also agrees with the magistrate judge
that many of plaintiff's claims are entirely unrelated to
one another. The FAC alleges claims against twenty-three
separate defendants who work at three different prisons, with
the various incidents alleged in the FAC being several months
apart. Accordingly, the undersigned agrees with the
magistrate judge's conclusion that plaintiff has failed
to allege a connection between the named defendants
sufficient to meet the requirements of Federal Rule of Civil
Procedure 20(a)(2), because of which certain of his claims
must be dismissed.
addition, although plaintiff has requested “leave to
remand all claims against Avalos [and] Wright” (Doc.
No. 24 at 1), plaintiff has not offered any argument or
authority in support of this request. See United States
v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)
(“Arguments made in passing and not supported by
citations to the record or to case authority are generally
deemed waived.”). Nonetheless, the court will address
plaintiff's request in light of his pro se
status. As this court and other have previously concluded,
federal courts lack the authority to remand a case to state
court if it was originally filed in federal court. See
Martinez v. Nestle Dreyer's Ice Cream Co., No.
1:18-cv-01582-DAD-JLT, 2019 WL 2918025, at *1 (E.D. Cal. July
8, 2019); see also Bradgate Assocs., Inc. v. Fellows,
Read & Assocs., Inc., 999 F.2d 745, 751 (3rd Cir.
1993) (reviewing a district court's order to remand a
consolidated case and holding that “the district court
should have remanded the removed case to state court and
dismissed the case [plaintiff] originally filed in federal
court.”); Ngoc Lam Che v. San Jose/Evergreen Cmty.
Coll. Dist. Found., No. 17-cv-00381-BLF, 2017 WL
2954647, at *3 (N.D. Cal. July 11, 2017) (“As an
initial matter, this Court could not remand Che's state
law claim even if it were to dismiss Che's ADA claim,
because this action was originally filed in federal
court.”); Harbord v. Bean, No. C 17-349 RSL,
2017 WL 2081072, at *1 (W.D. Wash. May 15, 2017)
(“[T]his Court lacks the authority to remand a case
that originated in federal court.”),
aff'd, No. 17-35498, 2017 WL 6345784 (9th Cir.
Oct. 12, 2017); Fuse v. Ariz. Bd. of Regents, No. CV
07-2351-PHX-FJM, 2009 WL 837645, at *1 (D. Ariz. Mar. 27,
2009) (“[W]e cannot remand plaintiff's claims to
state court because this action was originally filed in
federal court.”). Construing plaintiff's request as
a motion to remand, that motion must be denied.
reasons set forth above, 1. The findings and recommendations
issued on March 4, 2019 (Doc. No. 19) are adopted in full;
case shall proceed on plaintiff s claims against defendant
Thompson for retaliation in violation of the First Amendment
and against defendant Castellanos for cruel and unusual
punishment in violation of the Eight Amendment; and
other claims and ...