United States District Court, S.D. California
ORDER REMANDING ACTION TO STATE COURT
A. HOUSTON, UNITED STATES DISTRICT JUDGE
before the Court is an Objection to Removal by Plaintiff
Alonzo Joseph (“Plaintiff”), an inmate currently
incarcerated at California State Prison located in Corcoran,
California, filed on October 22, 2019. Doc. No. 7. Due to
Plaintiff's pro se status, the Court must
construe the pleading liberally. See Haines v.
Kerner, 404 U.S. 519, 520- 21 (1972). Therefore, the
Court will treat the pleading as a Motion to Remand. For the
reasons set forth below, the Court finds it lacks
jurisdiction over the complaint and, therefore,
GRANTS the motion to remand the matter to
state court for all further proceedings.
3, 2019, Plaintiff Alonzo Joseph (“Plaintiff”)
filed a complaint in the Superior Court of California, County
of San Diego, against Defendants Sgt. A. Hernandez and
Corrections Office M. Murillo. See Doc. No. 1 at 5,
exhibit A. Defendant Murillo removed the action to this Court
on October 10, 2019. Doc. No. 1. Therein, Defendant claimed
there is federal jurisdiction. Id. Specifically,
Defendant Murillo claims the Civil Cover sheet identifies the
case as “Civil Rights” and the Complaint alleges
claims for violations of the Eighth Amendment for excessive
force and failure to protect and a Fourteenth Amendment
violation for retaliation. Doc. No. 1 at 2. Defendant also
requests the Court “screen” Plaintiff's
Complaint pursuant to 28. U.S.C. § 1915A. Id.
at 3. Plaintiff filed an Objection to Removal on October 22,
2019, objecting to removal “because Plaintiff have
[sic] a right to submit himself in any court.” Doc. No.
federal court is one of limited jurisdiction. See Gould
v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 774
(9th Cir. 1986). As such, it cannot reach the merits of any
dispute until it confirms its own subject matter
jurisdiction. Steel Co. v. Citizens for a Better
Env't., 523 U.S. 83, 94 (1998). “Jurisdiction
is power to declare the law, and when it ceases to exist, the
only function remaining to the court is that of announcing
the fact and dismissing the cause.” Id.
(quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506,
614 (1868)). District courts must construe the removal
statutes strictly against removal and resolve any uncertainty
as to removability in favor of remanding the case to state
court. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th
Cir. 1992) (per curiam); Boggs v. Lewis, 863 F.2d
662, 663 (9th Cir. 1988).
jurisdiction is governed by 28 U.S.C. § 1441 et
seq. A state court action can only be removed if it
could have originally been brought in federal court.
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987); Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th.
Cir. 1996). Thus, for an action to be removed on the basis of
federal question jurisdiction, the complaint must establish
either that federal law creates the cause of action or that
the plaintiff's right to relief necessarily depends on
the resolution of substantial questions of federal law.
Franchise Tax Board of Cal. v. Construction Laborers
Vacation Trust for Southern Cal., 463 U.S. 1,
10-11 (1983). Whether federal jurisdiction exists is governed
by the well-pleaded complaint rule. Caterpillar, 482
U.S. at 392. Under this rule, the federal question must be
“presented on the face of plaintiff's properly
pleaded complaint.” Id.; accord Wayne v.
DHL Worldwide Express, 294 F.3d 1179, 1183 (9th Cir.
2002). “[I]t is now settled law that a case may not be
removed to federal court on the basis of a federal defense,
including the defense of pre-emption, even if the defense is
anticipated in the plaintiff's complaint, and even if
both parties concede that the federal defense is the only
question truly at issue.” Caterpillar, 482
U.S. at 393; see Wayne, 294 F.3d at 1183
(“However, the existence of a defense based upon
federal law is insufficient to support jurisdiction.”).
Further, “[a]s the master of the complaint, a plaintiff
may defeat removal by choosing not to plead independent
federal claims.” Arco Envtl. Remediation L.L.C. v.
Department of Health & Envtl. Quality, 213 F.3d
1108, 1114 (9th Cir. 2000); Rains v. Criterion Sys.,
Inc., 80 F.3d 339, 344 (9th Cir. 1996); Redwood
Theaters, Inc. v. Festival Enters. Inc., 908 F.2d 477,
479 (9th Cir. 1990).
defendants have the burden of establishing that removal is
proper and supporting its jurisdictional allegations with
competent proof. Gaus v. Miller, 980 F.2d at 566;
Nishimoto v. Federman-Bachrach & Assocs., 903
F.2d 709, 712 n.3 (9th Cir. 1990). In addition, the
defendants must file a timely notice of removal. 28 U.S.C.
§ 1446(b). The notice of removal must be filed within 30
days after receipt of a copy of the initial pleading if
removability can be determined from its text. Id.
seek removal of this action on the grounds that
Plaintiff's Complaint arises under 42 U.S.C. § 1983.
However, the face of Plaintiff's Complaint does not
establish that a federal statute creates any of the claims
found in Plaintiff's Complaint. Furthermore, while
Defendant's cites to Plaintiff's Civil Cover sheet as
support for the removal, Defendant ignores that Plaintiff
also indicated the causes of action are for negligence and
intentional tort, which are state laws and not federal causes
of action. See Doc. No. 1-2 at 5. Simply because
Plaintiff alleges a violation of his civil rights does not
foreclose the possibility that he is seeking damages for
alleged violations of his civil rights under California law.
The “mere presence of a federal issue in a state cause
of action does not automatically confer federal question
jurisdiction.” Merrell Dow Pharms., Inc. v.
Thompson, 478 U.S. 804, 813 (1986). It is certainly not
clear from the face of Plaintiff s Complaint that he intended
to seek relief under § 1983. However, Plaintiffs
Objection to the Removal makes clear he in fact does not
intend seek relief under § 1983 and pursue this action
in federal court. Doc. No. 7. “The plaintiff is the
master of his or her own complaint and is free to ignore the
federal cause of action and rest the claim solely on a state
cause of action.” Garibaldi v. Lucky Food Stores,
Inc., 726 F.2d 1367, 1370 (9th Cir. 1984).
the mere possibility that Plaintiff could have brought a
civil rights claim under § 1983 does not support a
finding of federal jurisdiction. Based on the aforementioned,
IT IS HEREBY ORDERED the Court GRANTS the
motion to remand. Pursuant to 28 U.S.C. § 1447(c),
this action is REMANDED to the Superior Court for the
State of California, County of San Diego, where it was
originally filed and assigned case number
37-2019-00034482. Defendant's request for
screening pursuant to 28. U.S.C. § 1915A is denied as