Gholar v. Yates

Full title: JOHN RAY GHOLAR Plaintiff v. JAMES A. YATES, Defendant.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Feb 5, 2013

CASE NO. 1:12-cv-01182-LJO-SAB (PC) (E.D. Cal. Feb. 5, 2013)

Opinion

CASE NO. 1:12-cv-01182-LJO-SAB (PC)

02-05-2013

JOHN RAY GHOLAR Plaintiff v. JAMES A. YATES, Defendant.

Stanley A. Boone

FINDINGS AND RECOMMENDATIONS

RECOMMENDING DEFENDANT'S MOTION

TO REMAND BE DENIED

(ECF No. 3)

THIRTY-DAY OBJECTION DEADLINE

Plaintiff John Ray Gholar ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action by filing a complaint in Fresno County Superior Court. Defendant removed to this Court on July 19, 2012. (ECF No. 1.) Before the Court is Plaintiff's Motion to Remand, in which Plaintiff contends that the Superior Court of Fresno County has "concurrent jurisdiction, with diversity, federal question and concurrent subject matter authority." (ECF No. 3.)

Federal law provides that a defendant may remove an action filed in state court if "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. In the instant Motion, Plaintiff states that his complaint "is about a state official consciously violating constitutional and civil rights." (ECF No. 3 at 3.) Because Plaintiff concedes that he is seeking to vindicate his rights under the United States Constitution, this Court has original jurisdiction over this matter. Thus, Defendant's removal of this action was proper.

Accordingly, the Court HEREBY RECOMMENDS that Defendant's motion to remand, filed on August 1, 2012, be DENIED.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

Stanley A. Boone

UNITED STATES MAGISTRATE JUDGE