Opinion
No. C 07-00665 SBA (PR).
March 4, 2008
ORDER GRANTING DEFENDANTS' MOTION TO SCREEN AMENDED COMPLAINT PURSUANT TO 28 U.S.C. § 1915A
Plaintiff, a state prisoner, filed this action as a civil action in the Monterey County Superior Court. Defendants have removed the action to this Court pursuant to 28 U.S.C. § 1441(b). Plaintiff has since amended his complaint. In an Amended Order dated August 1, 2007, the Court granted Plaintiff's motion for leave to file an amended complaint.
Defendants, who are represented by the State Attorney General's Office, have filed a motion asking the Court to screen the amended complaint under 28 U.S.C. § 1915A.
Deputy Attorney General Kenneth T. Roost represents and has acknowledged service on behalf of Defendants Hager and Avelino. Although "Comfort Care Manufacturer/Supplier" has been named as a Defendant, that Defendant has not been served.
Cases brought under 42 U.S.C. § 1983, as this one is, may properly be brought in either state or federal court. See Patsy v. Bd. of Regents of State of Fl., 457 U.S. 496, 506-07 (1982). However, a defendant may remove to the appropriate federal district court "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 163 (1997) (quoting 28 U.S.C. § 1441(a)). The propriety of removal thus depends on whether the case originally could have been filed in federal court. See id. Removal does not require court action, but rather is effective upon the defendant's filing of a notice of removal. See 28 U.S.C. § 1446(d).
Because this case is filed by a prisoner, the Court must engage in a preliminary screening of the amended complaint.
Accordingly, Defendants' motion to screen the amended complaint is GRANTED. The Court will conduct its initial review of the amended complaint pursuant to 28 U.S.C. § 1915A in a separate written Order.
This Order terminates Docket no. 11.
IT IS SO ORDERED.