Thorp v. Kepoo

• Decision Date: 06 June 2000
• Docket Number: No. Civ.A. 99-00501 HG-B.,Civ.A. 99-00501 HG-B.
• Citation: 100 F.Supp.2d 1258
• Parties: Raymond M. THORP, Plaintiff, v. Roy KEPOO, Facility Superintendent of Waiawa Correctional Facility; Phil Tumminelo, Warden of Waiawa Correctional Facility, Keith Kaneshiro, Director of Department of Public Safety, Defendants.
• Court: U.S. District Court — District of Hawaii

100 F.Supp.2d 1258

Raymond M. THORP, Plaintiff, v. Roy KEPOO, Facility Superintendent of Waiawa Correctional Facility; Phil Tumminelo, Warden of Waiawa Correctional Facility, Keith Kaneshiro, Director of Department of Public Safety, Defendants.

No. Civ.A. 99-00501 HG-B.

United States District Court, D. Hawaii.

June 6, 2000.

Raymond M. Thorp, Appleton, MN, plaintiff pro se.

Marie C.L. Laderta, Martin W. Basiszta, Office of the Attorney General, State of Hawaii, Honolulu, HI, for defendants.

ORDER ADOPTING AS MODIFIED THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION THAT PLAINTIFF'S MOTION TO REMAND BE GRANTED AND DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART

GILLMOR, District Judge.

On July 13, 1999, Defendants removed this action to federal court and one week later filed Defendants' Motion to Dismiss, arguing, inter alia, that this Court lacked subject matter jurisdiction. On July 26, 1999, Plaintiff filed his Objection to Defendant's Motion of Removal to Federal Court (construed as a motion for remand). Both motions were heard by the magistrate judge.

On October 27, 1999, the magistrate judge issued his Findings and Recommendation that Plaintiff's Motion to Remand Be Granted and Defendants' Motion to Dismiss Be Granted in Part ("Findings and Recommendation"). On November 8, 1999, Plaintiff Raymond M. Thorp filed his Objection to the Magistrates [sic] Findings and Recommendation Granting Defendants [sic] Motion to Dismiss In Part ("Plaintiff's Objections to the Findings and Recommendation"). After considering the parties' memoranda and the caselaw, the Court ADOPTS as modified the magistrate judge's findings and recommendation that Plaintiff's motion to remand be granted and Defendants' motion to dismiss be granted in part.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 17, 1999, Plaintiff Raymond M. Thorp filed a complaint, entitled 42 U.S.C. § 1983 Civil Complaint ("Complaint"), against Defendants Roy Kepoo, Phil Tumminelo and Keith Kaneshiro (collectively, the "Defendants") in the First Circuit Court, State of Hawaii. (Thorp v. Kepoo, et al., Civil No. 99-2372-06). Plaintiff's Complaint alleged, inter alia, that his rights under the Eighth Amendment to the United States Constitution and Article I, Section 12 of the Hawaii Constitution were violated by the Defendants. These alleged violations occurred in connection with Plaintiff receiving an electric shock while performing his duties as an inmate electrician.

On July 13, 1999, Defendants removed the case to federal court, claiming this Court has federal question jurisdiction under 28 U.S.C. § 1343(3).

On July 20, 1999, Defendants filed a Motion to Dismiss, claiming that this Court was without jurisdiction to address Plaintiff's claims because Plaintiff had not alleged that his administrative remedies were exhausted, as required under 42 U.S.C. § 1997e(a). Defendants' motion also claimed, inter alia, that dismissal was proper because a de minimus injury does not rise to the level of a constitutional violation, that the Eleventh Amendment bars suit against Defendants in their official capacities and that Defendants are qualifiedly immune from suit.

On July 26, 1999, Plaintiff filed his Objection to Defendant's [sic] Motion of Removal to Federal Court. The magistrate judge construed Plaintiff's motion as a motion for remand. Plaintiff's motion for remand and Defendants' Motion to Dismiss were heard before the magistrate judge on October 21, 1999.

On October 27, 1999, the magistrate judge filed his Findings and Recommendation that Plaintiff's Motion to Remand Be Granted and Defendants' Motion to Dismiss Be Granted in Part. The magistrate judge based his recommendation on his finding that Plaintiff had failed to allege that he exhausted his administrative remedies before filing suit. Without properly exhausting his administrative remedies, the magistrate judge concluded, Plaintiff's suit was jurisdictionally barred in federal court under 42 U.S.C. § 1997e(a). The Findings and Recommendation went on to conclude that no federal questions remained, and, therefore, Plaintiff's case was without jurisdiction in federal court and recommended the case be remanded to state court.

On November 8, 1999, Plaintiff Raymond M. Thorp filed Plaintiff's Objections to the Findings and Recommendation. Plaintiff specifically claimed that dismissal of any of Plaintiff's claims was improper because the federal court is without jurisdiction over the entire case.

STANDARD OF REVIEW

Any party may object to a magistrate judge's dispositive proposed order, findings, or recommendations. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Local Rule 74.2. The district court must make a de novo determination of those portions of the magistrate judge's report to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Id. De novo review means the court must consider the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir.1992). Thus, although the district court need not hold a de novo hearing, the court's obligation is to arrive at its own independent conclusion about those portions of the magistrate judge's findings or recommendation to which objections are made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

A district court will reverse or modify a magistrate judge's nondispositive pretrial matter only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Local Rule 74.1. A clearly erroneous standard is "significantly deferential, requiring a definite and firm conviction that a mistake has been committed." Concrete Pipe & Prods v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (internal quotation marks omitted). See also Sec. Farms v. Int'l Bhd. of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997) (citation omitted).

There is a split in authority regarding whether a motion to remand is a nondispositive pretrial matter. Compare Bearden v. PNS Stores, Inc., 894 F.Supp. 1418, 1419 n. 1 (D.Nev.1995) (finding that a motion for remand is a nondispositive pretrial matter because it does not terminate the litigation or dispose of any claim); with In Re: U.S. Healthcare, 159 F.3d 142, 146 (3d Cir.1998) (holding that an order to remand action to state court is dispositive). In light of the lack of precedent from the United States Court of Appeals for the Ninth Circuit, the Court will review all of the magistrate judge's conclusions de novo, not just those objected to by Plaintiff.

ANALYSIS

The Findings and Recommendation take the position that Plaintiff had failed to exhaust his administrative remedies before bringing this suit. This failure, the magistrate judge concluded, made Plaintiff's federal claims not ripe for review. As a result, the recommendation is that Defendants' motion to dismiss Plaintiff's federal claims be granted. Without any federal claims surviving, the magistrate judge concluded that the Court had no subject matter jurisdiction over Plaintiff's remaining state law claims and recommended that Plaintiff's motion to remand be granted and that the case be remanded to state court.

Plaintiff and Defendants both argue that this Court lacks subject matter jurisdiction due to Plaintiff's failure to exhaust his administrative remedies. The parties disagree as to the proper disposition of Plaintiff's claims as a result of this lack of jurisdiction. Plaintiff argues that Section 1997e(a) deprived this Court of jurisdiction over Plaintiff's claims and, therefore, the Court was without the authority to dismiss Plaintiff's federal claims. Plaintiff believes the case should have been remanded to state court in whole. Defendants, on the other hand, argue that the Court must dismiss Plaintiff's federal claims as a result of his failure to exhaust his administrative remedies. Once these claims are dismissed, the Court should dismiss Plaintiff's pendent state claims for lack of jurisdiction or dismiss the remaining claims on the merits.

The Court ADOPTS the Findings and Recommendation that Defendants' motion to dismiss be granted in part. The Court finds that Plaintiff's federal claims are not ripe to be heard in federal court under 42 U.S.C. § 1997e(a). Section 1997e(a) bars prisoner grievances in federal court that have not exhausted available administrative remedies. The Findings and Recommendation correctly concluded that Plaintiff had not exhausted his administrative remedies. As a result, Plaintiff's federal claims are not properly before this Court.

The Court also ADOPTS as modified¹ the recommendation that Plaintiff's motion to remand be granted. Once Plaintiff's federal claims are dismissed, this Court may only exercise jurisdiction over Plaintiff's pendent state law claims pursuant to 28 U.S.C. § 1367(a). The Court will not exercise its discretion to hear Plaintiff's pendent state law claims. In light of the judicial policy favoring remand, rather than dismissal, of claims that may be properly heard before a state court, see Carnegie-Mellon University v. Cohill, 484 U.S. 343, 353, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), Plaintiff's pendent state law claims are remanded to state court.

I. Plaintiff's Federal Claims are Barred by 42 U.S.C. § 1997e(a)

The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), requires an inmate litigant bringing a federal cause of action in federal court to first exhaust available administrative remedies. A prisoner may not bring a section 1983 action "until such administrative remedies as are available are exhausted." Contrary to the arguments made by Plaintiff and Defendants, section 1997e(a) is not jurisdictional. See Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir.1999), cert. denied ___ U.S. ___, 120 S.Ct. 787, 145 L.Ed.2d 664 (2000)...