# (PC) Kilgore v. Compton > District Court, E.D. California · July 30, 2020 URL: https://www.frixlaw.com/law-library/cases/10020887 ## Case - **Court:** District Court, E.D. California - **Decided:** July 30, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10020887 ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN KILGORE, No. 2:17-cv-1560 AC P 12 Plaintiff, 13 v. ORDER and 14 R. COMPTON, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff Ivan Kilgore is a state prisoner proceeding pro se. Plaintiff filed this medical 18 negligence action in the Sacramento County Superior Court; defendants removed it to this court 19 because the complaint also contained allegations of deliberate indifference to plaintiff’s medical 20 needs. The case is referred to the undersigned United States Magistrate Judge pursuant to 28 21 U.S.C. § 636(b)(1)(B) and Local Rule 302(c). 22 On screening under 28 U.S.C. § 1915A, the undersigned found that the complaint failed to 23 state a cognizable federal claim. ECF No. 8. Plaintiff challenges a CDCR protocol for exclusive 24 distribution of over the counter (OTC) products, including OTC pain relievers, through the 25 canteen services system and thus subject to canteen limits. Plaintiff alleges that this system 26 prevented him from obtaining prescribed OTC pain relief medication for a period of 27 approximately one month following a knee injury. ECF No. 1. The court found that these 28 allegations do not support a claim of deliberate indifference to serious medical needs under 1 governing Eighth Amendment principles. ECF No. 8. Plaintiff was granted leave to amend. Id. 2 In response, plaintiff requested that this case be remanded to state court while staying his 3 putative federal claim. ECF No. 11. By order filed June 15, 2020, the undersigned denied a stay 4 and directed plaintiff to file either an amended complaint or a request that his federal claim be 5 voluntarily dismissed and the case remanded to state court. ECF No. 12. Plaintiff now seeks 6 dismissal of his Eighth Amendment claim and remand of the negligence claim to the state court. 7 ECF No. 13; see also ECF Nos. 11-2. 8 The request for voluntary dismissal of plaintiff’s claim under 42 U.S.C. § 1983 should be 9 granted. For the reasons explained in the screening order, ECF No. 8, plaintiff’s factual 10 allegations fail to state a § 1983 claim for which relief can be granted. Plaintiff’s request for 11 dismissal of the claim is the functional equivalent of amendment to withdraw the claim. 12 Accordingly, the undersigned recommends dismissal of the federal claim. 13 Dismissal of the § 1983 claim leaves a single claim for medical negligence under Cal. Civ. 14 Code § 1714.8. See ECF No. 1 at 21. This court need not maintain supplemental jurisdiction 15 over the remaining state law claim. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th 16 Cir. 2010) (“A district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has 17 dismissed all claims over which it has original jurisdiction.’” (quoting 28 U.S.C. § 1367(c)(3))). 18 Dismissal of the entire action is not required, however. District courts have the discretion to 19 remand rather than dismiss a properly removed case that no longer contains federal claims. 20 Carnegie-Mellon University v. Cohill, 484 U.S. 343, 357 (1988).1 The court’s exercise of this 21 discretion should be guided by considerations of judicial economy, procedural convenience, 22 fairness to the litigants and comity to the state courts. Id. at 350-51. 23 The undersigned finds that remand to state court is appropriate here. State court was 24 plaintiff’s chosen forum; considerations of comity and judicial economy favor litigation of a 25 purely state law issue in the state courts; and there are no apparent convenience factors weighing 26 against remand. 27 1 Superseded by statute on other grounds as recognized in Fent v. Oklahoma Water Resources 28 Board, 235 F.3d 553, 557 (10th Cir. 2000). See Sanford, 625 F.3d at 561. wOAOe OU EAINTT ENN RAMU a PI Oe POY VI 1 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a 2 | district judge to this case. 3 Further, for good cause shown, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiffs First Cause of Action, under 42 U.S.C. § 1983, be dismissed; and 5 2. This case be remanded forthwith to the Superior Court of the State of California, in and 6 || for the County of Sacramento. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 9 || days after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 12 | failure to file objections within the specified time may waive the right to appeal the District 13 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | DATED: July 29, 2020 ~ 19 Chthien—Chare ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10020887. Public record. Not legal advice.