Opinion
No. CIV S-06-2262 LKK DAD P.
May 22, 2008
ORDER
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. By order filed March 17, 2008, plaintiff's complaint was dismissed with leave to file an amended complaint. Plaintiff has filed an amended complaint, together with a request to remove this action to state court.
Plaintiff is advised that he may not remove a civil action from federal court to state court. See 28 U.S.C. § 1441(a) (a civil action "may be removed by a defendant or defendants" from state court to federal court). However, plaintiff is further advised that he has full authority to decide whether to prosecute this action in state court or federal court. If plaintiff wishes to proceed in state court, he should file a request to voluntarily dismiss this action without prejudice pursuant to Rule 41(a) of the Federal Rules of Civil Procedure. He may then file a complaint in state court. Ollie v. Riggin, 848 F.2d 1016, 1017 (9th Cir. 1988) ("Plaintiffs do not have the right actively to pursue parallel state and federal actions simultaneously."). In the alternative, plaintiff may proceed on his amended complaint in this court.
Plaintiff is cautioned that, if he dismisses this action and files a similar complaint regarding his federal constitutional rights in state court, the defendant or defendants may elect to seek removal of the action to federal court. See 28 U.S.C. § 1441(a).
In light of plaintiff's recent request, the court will order plaintiff to file a declaration, clarifying whether he wishes to voluntarily dismiss this action or proceed on his amended complaint.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's April 8, 2008 request to remove this action to state court is denied; and
2. Within fifteen days of the date of this order, plaintiff shall file a declaration, clarifying whether he wishes to voluntarily dismiss this action or proceed on his amended complaint.