Tate v. Nakashyan

         FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S MOTION FOR REMAND BE GRANTED, THAT THIS CASE BE REMANDED TO STATE COURT, AND THAT PLAINTIFF'S MOTION FOR CLARIFICATION BE DENIED AS MOOT (ECF NOS. 1, 4, & 10) ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE

         Plaintiff Derek Tate proceeds pro se in this action against Defendant Diana Nakashyan for claims under California law. Defendant removed the case to this Court on September 3, 2019, claiming that Plaintiff's Complaint “potentially” states claims under the First and Eighth Amendment. (ECF No. 1.) Defendant filed a request that the Court screen Plaintiff's Complaint, which the Court granted. (ECF No. 3.)

         On September 20, 2019, Plaintiff filed “objections” to Defendant's notice of removal, which the Court has construed as a motion to remand (“motion to remand”). (ECF No. 4.) Defendant filed a response to Plaintiff's motion to remand on October 7, 2019. (ECF No. 8.)

         On November 2, 2019, Plaintiff filed a motion seeking clarification of the Court's order granting Defendant's request to screen the Complaint. (ECF No. 10.)

         For the following reasons, the Court recommends that Plaintiff's motion to remand be granted and that Plaintiff's motion for clarification be denied as moot.

         However, if Plaintiff files objections to these findings and recommendations stating that he does intend to include federal claims, the Court will screen his Complaint and treat his objections to removal as withdrawn.

         I. BACKGROUND AND SUMMARY OF ALLEGATIONS IN PLAINTIFF'S COMPLAINT

         Plaintiff originally filed this suit in the Superior Court of the State of California, County of Kern. (ECF No. 1.) Defendant filed a notice of removal on September 3, 2019, stating that Plaintiff's Complaint “potentially involves claims under the First Amendment and Eighth Amendment to the U.S. Constitution, and therefore this Court has original, federal-question jurisdiction.” (ECF No. 1, p. 2.)

         Generally, Plaintiff claims that, “Defendant…violated Plaintiff [sic] California State Constitutional right to adequate mental health treatment by subjecting Plaintiff…to intentional infliction of emotional distress, causing severe mental anguish, ” and that “Defendant…acting under the color of state law, an employee, employed by the California Correctional Healthcare Services Department located at Kern Valley State Prison…violated prison policy Title 15 article 9 mental health services section 3360(a), availability of mental health services.”

         More specifically, Plaintiff claims that Defendant, a mental health doctor at Plaintiff's prison, was texting and e-mailing another inmate. Plaintiff revealed to Defendant that he knew about these communications and, based upon that disclosure, Defendant “retaliated” against Plaintiff by withholding treatment and generally engaging in a campaign of rude and abusive behavior towards Plaintiff.

         Plaintiff claims that the California Department of Corrections and Rehabilitation (“CDCR”) regulations prohibit the use of mental health programs in an abusive manner, which Defendant violated through her behavior. Plaintiff claims that Defendant's behavior resulted in the deprivation of adequate mental health care to Plaintiff and caused him great emotional distress, including a stint in the mental health crisis bed facility in Sacramento for a ten-day suicidal observation prevention treatment stay. Plaintiff maintains that Defendant's actions violated the “duty of care” by depriving adequate treatment and amount to the intentional infliction of emotional distress.

         Plaintiff also claims that Defendant told the inmate she had been communicating with that Plaintiff knew about the communications. That inmate then confronted Plaintiff in a violent and threatening manner, indicating to Plaintiff that Defendant had or attempted to have the Plaintiff assaulted.

         Plaintiff maintains that Defendant's actions amount to cruel and unusual punishment under the California Constitution and that Defendant's actions violated his rights to confidentiality-again in contravention of CDCR regulations and the California Constitution. According to Plaintiff, “there exists no justifiable penological justification for the Defendant to violate the Plaintiff's expectation of safety while receiving mental health treatment.”

         Finally, Plaintiff also claims that Defendant was “deliberately indifferent” to ...