1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIUS BUTLER, No. 2:22-cv-1301 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 J. CLARK KELSO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 14, 2023, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. F. & R., ECF No. 32. 23 Following extensions of time, plaintiff filed objections to the findings and recommendations. 24 Objs., ECF No. 38. Defendants filed a response to the objections. Response, ECF No. 39. 25 In accordance with provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court 26 has conducted a de novo review of this case. Having reviewed the file, the court adopts the 27 findings and recommendations in part. The court addresses plaintiff’s objections here. 28 /// 1 I. Judicial Notice. 2 Plaintiff first argues the magistrate judge erred by granting in part defendants’ request for 3 judicial notice and denying in part plaintiff’s request for judicial notice. “When a magistrate 4 judge rules on a non-dispositive matter, a district judge may ‘reconsider’ that ruling only if it is 5 ‘clearly erroneous or contrary to law.’” CPC Pat. Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 6 804 (9th Cir. 2022) (quoting 28 U.S.C. § 636(b)(1)(A)). Thus, the court reviews the magistrate 7 judge’s ruling on the requests for judicial notice under the “clearly erroneous” standard. 8 Plaintiff contends the court improperly took judicial notice of disputed facts, specifically 9 the California Correctional Healthcare Services (CCHS) organizational chart and a memorandum 10 identifying John Dovey as a special consultant to the Office of the Receiver. Objs. at 2–4. Under 11 Federal Rule of Evidence 201(b)(2), the court may take judicial notice of “a fact that is not 12 subject to reasonable dispute because it . . . can be accurately and readily determined from 13 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Courts can take 14 judicial notice of “matters of public record made available by the government.” Kheriaty v. 15 Regents of the Univ. of Cal., No. 22-55001, 2022 WL 17175070, at *1 (9th Cir. Nov. 23, 2022) 16 (unpublished). This includes information posted on government websites and government 17 documents that are “verifiable with certainty.” United States v. Camp, 723 F.2d 741, 744 n.** 18 (9th Cir. 1984) (collecting cases). The magistrate judge did not err in granting in part defendants’ 19 requests for judicial notice. 20 Plaintiff next posits the magistrate judge incorrectly failed to take judicial notice of certain 21 documents. Obj. at 4. As the magistrate judge notes, plaintiff cannot supplement the allegations 22 in his complaint through his requests for judicial notice. See F. & R. at 5; see also D & D Greek 23 Rest., Inc. v. Great Greek Franchising, LLC, No. 20-9770, 2021 WL 4459063, at *3 (C.D. Cal. 24 May 19, 2021) (collecting cases). Additionally, judicial notice need not be taken of information 25 nonresponsive to the pending motions. See Plevy v. Haggerty, 38 F.Supp.2d 816, 821 (C.D. Cal. 26 1998). The magistrate judge did not err in denying in part plaintiff’s requests for judicial notice. 27 /// 28 /// 1 II. Motion to Remand 2 Plaintiff argues the magistrate judge erred by finding removal proper and recommending 3 against remand. “When a magistrate judge issues a report and recommendation on a dispositive 4 matter, a district judge must ‘make a de novo determination of those portions of the report or 5 specified proposed findings or recommendations to which objection is made.’” CPC Pat. Techs. 6 Pty Ltd., 34 F.4th at 804 (citing 28 U.S.C. § 636(b)(1)(C)). Thus, the court reviews the magistrate 7 judge’s recommendation regarding the motion to remand de novo. 8 After the magistrate judge issued the findings and recommendations, plaintiff filed a 9 notice of dismissal, dismissing all claims against defendant J. Clark Kelso, the court-appointed 10 Receiver for the California prison medical healthcare system in the case of Plata v. Newsom, Case 11 No. 01-1351 (N.D. Cal.). Not. Dismissal, ECF No. 35. Plaintiff does not argue the magistrate 12 judge erred in his analysis that Kelso met the removal requirements under 28 U.S.C. § 1442(a), 13 which permit federal officers to remove an action to federal court. Rather, plaintiff argues 14 because Kelso has been dismissed and no other defendants established a separate ground for 15 removal, the case should be remanded. Objs. at 6–7. The magistrate judge did not separately 16 analyze whether the other defendants were employed under Kelso because “[a]s a federal official, 17 Kelso has an independent basis to remove the action to federal court.” F. & R. at 9 n.5. 18 The magistrate judge did not err in recommending denial of plaintiff’s motion to remand. 19 Plaintiff did not file his notice of dismissal until after the magistrate judge issued the findings and 20 recommendations. Moreover, the jurisdiction of this court is “not ousted when the federal 21 removal predicate was subsequently dropped from the proceedings.” Murphy v. Kodz, 22 351 F.2d 163, 167 (9th Cir. 1965). Plaintiff’s tactical move to avoid this court’s jurisdiction does 23 not deprive this court of jurisdiction. 24 III. Motion to Dismiss 25 Plaintiff argues this court should assess his complaint under the California demurrer 26 statute rather than the Federal Rules of Civil Procedure. Obj. at 10. This position is incorrect 27 because the Federal Rules apply to civil cases once removed to federal court. Fed. R. Civ. P. 28 81(c)(1); see Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. 70 of 1 Alameda County, 415 U.S. 423, 437 (1974). 2 Here, the court does not reach whether plaintiff has met the federal pleading requirements 3 because the court finds the magistrate judge correctly found the Receiver and members of his 4 staff, collectively termed “Receiver defendants,” are entitled to quasi-judicial immunity. As the 5 magistrate judge notes, F. & R.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARIUS BUTLER, No. 2:22-cv-1301 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 J. CLARK KELSO, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 14, 2023, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. F. & R., ECF No. 32. 23 Following extensions of time, plaintiff filed objections to the findings and recommendations. 24 Objs., ECF No. 38. Defendants filed a response to the objections. Response, ECF No. 39. 25 In accordance with provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court 26 has conducted a de novo review of this case. Having reviewed the file, the court adopts the 27 findings and recommendations in part. The court addresses plaintiff’s objections here. 28 /// 1 I. Judicial Notice. 2 Plaintiff first argues the magistrate judge erred by granting in part defendants’ request for 3 judicial notice and denying in part plaintiff’s request for judicial notice. “When a magistrate 4 judge rules on a non-dispositive matter, a district judge may ‘reconsider’ that ruling only if it is 5 ‘clearly erroneous or contrary to law.’” CPC Pat. Techs. Pty Ltd. v. Apple, Inc., 34 F.4th 801, 6 804 (9th Cir. 2022) (quoting 28 U.S.C. § 636(b)(1)(A)). Thus, the court reviews the magistrate 7 judge’s ruling on the requests for judicial notice under the “clearly erroneous” standard. 8 Plaintiff contends the court improperly took judicial notice of disputed facts, specifically 9 the California Correctional Healthcare Services (CCHS) organizational chart and a memorandum 10 identifying John Dovey as a special consultant to the Office of the Receiver. Objs. at 2–4. Under 11 Federal Rule of Evidence 201(b)(2), the court may take judicial notice of “a fact that is not 12 subject to reasonable dispute because it . . . can be accurately and readily determined from 13 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. Courts can take 14 judicial notice of “matters of public record made available by the government.” Kheriaty v. 15 Regents of the Univ. of Cal., No. 22-55001, 2022 WL 17175070, at *1 (9th Cir. Nov. 23, 2022) 16 (unpublished). This includes information posted on government websites and government 17 documents that are “verifiable with certainty.” United States v. Camp, 723 F.2d 741, 744 n.** 18 (9th Cir. 1984) (collecting cases). The magistrate judge did not err in granting in part defendants’ 19 requests for judicial notice. 20 Plaintiff next posits the magistrate judge incorrectly failed to take judicial notice of certain 21 documents. Obj. at 4. As the magistrate judge notes, plaintiff cannot supplement the allegations 22 in his complaint through his requests for judicial notice. See F. & R. at 5; see also D & D Greek 23 Rest., Inc. v. Great Greek Franchising, LLC, No. 20-9770, 2021 WL 4459063, at *3 (C.D. Cal. 24 May 19, 2021) (collecting cases). Additionally, judicial notice need not be taken of information 25 nonresponsive to the pending motions. See Plevy v. Haggerty, 38 F.Supp.2d 816, 821 (C.D. Cal. 26 1998). The magistrate judge did not err in denying in part plaintiff’s requests for judicial notice. 27 /// 28 /// 1 II. Motion to Remand 2 Plaintiff argues the magistrate judge erred by finding removal proper and recommending 3 against remand. “When a magistrate judge issues a report and recommendation on a dispositive 4 matter, a district judge must ‘make a de novo determination of those portions of the report or 5 specified proposed findings or recommendations to which objection is made.’” CPC Pat. Techs. 6 Pty Ltd., 34 F.4th at 804 (citing 28 U.S.C. § 636(b)(1)(C)). Thus, the court reviews the magistrate 7 judge’s recommendation regarding the motion to remand de novo. 8 After the magistrate judge issued the findings and recommendations, plaintiff filed a 9 notice of dismissal, dismissing all claims against defendant J. Clark Kelso, the court-appointed 10 Receiver for the California prison medical healthcare system in the case of Plata v. Newsom, Case 11 No. 01-1351 (N.D. Cal.). Not. Dismissal, ECF No. 35. Plaintiff does not argue the magistrate 12 judge erred in his analysis that Kelso met the removal requirements under 28 U.S.C. § 1442(a), 13 which permit federal officers to remove an action to federal court. Rather, plaintiff argues 14 because Kelso has been dismissed and no other defendants established a separate ground for 15 removal, the case should be remanded. Objs. at 6–7. The magistrate judge did not separately 16 analyze whether the other defendants were employed under Kelso because “[a]s a federal official, 17 Kelso has an independent basis to remove the action to federal court.” F. & R. at 9 n.5. 18 The magistrate judge did not err in recommending denial of plaintiff’s motion to remand. 19 Plaintiff did not file his notice of dismissal until after the magistrate judge issued the findings and 20 recommendations. Moreover, the jurisdiction of this court is “not ousted when the federal 21 removal predicate was subsequently dropped from the proceedings.” Murphy v. Kodz, 22 351 F.2d 163, 167 (9th Cir. 1965). Plaintiff’s tactical move to avoid this court’s jurisdiction does 23 not deprive this court of jurisdiction. 24 III. Motion to Dismiss 25 Plaintiff argues this court should assess his complaint under the California demurrer 26 statute rather than the Federal Rules of Civil Procedure. Obj. at 10. This position is incorrect 27 because the Federal Rules apply to civil cases once removed to federal court. Fed. R. Civ. P. 28 81(c)(1); see Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. 70 of 1 Alameda County, 415 U.S. 423, 437 (1974). 2 Here, the court does not reach whether plaintiff has met the federal pleading requirements 3 because the court finds the magistrate judge correctly found the Receiver and members of his 4 staff, collectively termed “Receiver defendants,” are entitled to quasi-judicial immunity. As the 5 magistrate judge notes, F. & R. at 16, the Plata court expressly ordered “[t]he Receiver and his 6 staff shall have the status of officers and agents of this Court, and as such shall be vested with the 7 same immunities as vest with this Court.” See Touchstone Decl. Ex. 1 at 6, ECF No. 10-1. The 8 Ninth Circuit and district courts in this circuit have consistently held court-appointed receivers are 9 entitled to quasi-judicial immunity. See, e.g., In re CIM-SQ Transfer Cases, No. 22-2059, 10 2023 WL 2285850, at *2 (N.D. Cal. Feb. 27, 2023) (collecting cases); see also Abdulle v. Sillen, 11 No. 22-15319, 2022 WL 17818545, at *2 (9th Cir. Dec. 20, 2022) (unpublished) (holding 12 “federal receivers also are entitled to immunity from a suit for damages”). Accordingly, the 13 complaint is dismissed with prejudice as to the Receiver defendants. 14 “Once the basis for removal jurisdiction is dropped, it is within the district court’s 15 discretion whether to ‘hear the rest of the action or remand it to the state court from which it was 16 removed.’” Mellis v. Asbestos Corp. Ltd., No. 13-3449, 2013 WL 4805746, at *2 (N.D. Cal. 17 Sept. 9, 2013) (quoting Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir.1986)). This action was 18 removed to this court in accordance with the federal officers removal statute noted above. 19 Plaintiff voluntarily dismissed Kelso, and in any event the Receiver defendants are entitled to 20 quasi-judicial immunity as noted above. Because the remaining defendants are not federal 21 officers entitled to federal court jurisdiction under 28 U.S.C. § 1442, plaintiff’s claims are all 22 based on state law, and the litigation is at its early stages, the court exercises its discretion to 23 dismiss the complaint without prejudice as to the remaining defendants and remand the action to 24 state court. See Murphy v. Kodz, 351 F.2d 163, 167–68 (9th Cir. 1965) (holding district courts 25 have discretion to dismiss a complaint and remand a case to state court “[w]here the federal head 26 of jurisdiction has vanished from the case, and there has been no substantial commitment of 27 judicial resources to the nonfederal claims”). 28 /// ] Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed February 14, 2023, are adopted in part; 3 2. Plaintiffs motion for remand (ECF No. 6) is granted in part; 4 3. Defendants’ motion to dismiss (ECF No. 3) is granted; 5 4. Plaintiff's complaint is dismissed with prejudice as to Defendants J. Clark Kelso, 6 | Richard Kirkland, Lisa Heintz, John Dovey, and Jackie Clark, and dismissed without prejudice 7 || as to the remaining defendants; 8 5. This action is remanded to the Superior Court of California, County of Sacramento; 9 | and 10 6. The Clerk of the Court is directed to close this case. 11 | DATED: August 28, 2023. 12
4 CHIEF ED STATES DISTRICT JUDGE
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