United States District Court, E.D. California
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
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.)
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.
November 2, 2019, Plaintiff filed a motion seeking
clarification of the Court's order granting
Defendant's request to screen the Complaint. (ECF No.
following reasons, the Court recommends that Plaintiff's
motion to remand be granted and that Plaintiff's motion
for clarification be denied as moot.
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objections to removal as withdrawn.
BACKGROUND AND SUMMARY OF ALLEGATIONS IN PLAINTIFF'S
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.)
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.”
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.
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.
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.
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.”
Plaintiff also claims that Defendant was “deliberately
indifferent” to ...