People of the State of California v. Schaupp

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 THE PEOPLE OF THE STATE OF Case No. 1:23-cv-00755-SAB CALIFORNIA, 12 ORDER DIRECTING CLERK OF COURT Plaintiff, TO RANDOMLY ASSIGN A DISTRICT 13 JUDGE TO THIS ACTION v. 14 FINDINGS AND RECOMMENDATIONS RECOMMENDING SUMMARY REMAND CAROLYN SCHAUPP, 15 OF ACTION AND DENIAL OF PLAINTIFF’S APPLICATION TO PROCEED Defendant. 16 IN FORMA PAUPERIS AS MOOT 17 (ECF Nos. 1, 2) 18 FOURTEEN DAY DEADLINE [19] 20 I. 21 INTRODUCTION 22 Defendant Carolyn Schaupp (“Defendant”), proceeding pro se, filed a “notice of removal 23 and interlocutory appeal of state court action” regarding the Stanislaus County Superior Court 24 case People of the State of California v. Carolyn Schaupp, No. CR-20-008761, on May 15, 2023, 25 along with a request for judicial notice of various state court records. (ECF No. 1.) Defendant 26 purports to remove the criminal action pursuant to 28 U.S.C. §§ 1455 and 1331. (Id. at 2.) 27 Defendant did not submit a filing fee with her notice of removal but instead filed an application to 28 proceed in forma pauperis. (ECF No. 2.) For the reasons discussed herein, the Court 1 recommends Plaintiff’s IFP application be denied as moot and the matter be summarily remanded 2 to the State court.1 3 II. 4 REQUEST FOR JUDICIAL NOTICE 5 A. Defendant’s Requests 6 Defendant seeks judicial notice of the following facts: 7 1. Writ of habeas Corpus in the District Court of Appeals, F08165 [8] 2. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) [9] 3. Denial of 425.16 Motion filed February 15, 2023, by refusing 10 to set hearing in case number CR20008761 within 30 days. (See Writ of certiorari filed herewith) [11] 4. Refusal to issue ruling on Application for Default Judgment 12 in 425.16 Motion filed February 15, 2023. (Default Requested March 15, 2023.) (See writ of Certiorari filed herewith) [13] 5. Lack of Summons in Case Number CR20008761 (See writ of 14 Certiorari Filed herewith) 15 6. Lack of arraignment in Case Number CR2008761 (See writ of Certiorari Filed herewith) [16] 7. Void Arrest Warrant issued 9/26/2022. (See writ of 17 Certiorari Filed herewith) 18 8. Lack of Faretta Waiver after 9/26/2023 (See writ of Certiorari Filed herewith) [19] 9. California Assembly Bill 1675 (California Anti-Slapp 20 Project) 21 10. SLAPP Special Motion Log, at https://www.courts.ca.gov/ cms/slapp.htm (2/15/2023) [22] 11. ANTI-SLAPP filed 2/15/2023 in the Stanislaus County 23 Superior Court. 24 12. Order on ANTI-SLAPP filed February 16, 2023, case number CR20008761. [25] 13. Request to enter default on ANTI-SLAPP CR2008761 [26] 27 1 See Flam v. Flam, 788 F.3d 1043 (9th Cir. 2015) (holding a remand order is beyond the power of a magistrate judge to issue and directing district court judge to either consider motion for remand in the first instance or request the 28 magistrate judge prepare a report and recommendation regarding the remand motion). 1 14. Affidavit of Carolyn Schaupp 2 (ECF No. 3 at 2–3) (emphasis in original). 3 B. Discussion 4 Courts may take judicial notice of “adjudicative facts” and other facts not subject to 5 reasonable dispute and either “generally known” in the community or “capable of accurate and 6 ready determination by reference to sources whose accuracy cannot be reasonably questioned.” 7 Fed. R. Evid. 201(b). 8 The Court may judicially notice “proceedings in other courts, both within and without the 9 federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. 10 Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation omitted); Bennett v. 11 Medtronic, Inc., 285 F.3d 801 , 803 n.2 (9th Cir. 2002) (same); see also Lee v. City of L.A., 250 12 F.3d 668, 689 (9th Cir. 2001) (court may take judicial notice of undisputed matters of public 13 record). Thus, the Court may judicially notice the Ninth Circuit case, Batzel v. Smith, cited by 14 Defendant (Request 2, ECF No. 3 at 27–67); and any actual filings by Defendant in her 15 referenced cases or orders relating thereto. For example, the Court may judicially notice the 16 minute order issued in Viss v. Schaupp, Case No. FL-22-001489, its finding that no case titled 17 “Stanislaus County Public Defendant v. Carolyn Hope Schaupp” exists in the Superior Court for 18 Stanislaus County, and the fact that the court struck Defendant’s “Notice of Motion and Special 19 Motion to Strike” as defective in that case (ECF No. 3 at 133), as well as the court’s order in 20 People v. Schaupp, Case No. CR-20-008761 (Request 12, ECF No. 3 at 135–37), which also 21 discusses Defendant’s “Notice of Motion and Special Motion to Strike,” referring to it as 22 “Defendant’s Purported Anti-SLAPP Motion.” Bias, 508 F.3d at 1225 . To the extent 23 Defendant’s Requests 3 and 4 also relate to the aforementioned findings in these orders, they are 24 granted. Id. 25 The Court may also judicially notice California Assembly Bill 1675 (Request 9, ECF No. 26 3 at 69–72), as a public record that is not subject to reasonable dispute and “capable of accurate 27 and ready determination by reference to sources whose accuracy cannot be reasonably 28 questioned.” Lee, 250 F.3d at 689; Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741 , 1 746 (9th Cir. 2006) (The court “may take judicial notice of ... matters of public record.”); see also 2 Chaker v. Crogan, 428 F.3d 1215 , 1223 n.8 (9th Cir. 2005) (taking judicial notice of legislative 3 history). 4 The Court may also judicially notice information displayed on government websites 5 where neither party disputes the accuracy of the information contained therein. Daniels-Hall v. 6 Nat’l. Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). Accordingly, the Court may judicially 7 notice the entries listed on the SLAPP special motion log, at the website indicated by Defendant 8 (Request 10, ECF No. 3 at 74–77). 9 However, while the Court may judicially notice the fact that certain documents were filed 10 in Defendant’s various cases or certain orders were issued, the Court may not accept as true 11 arguments asserted within the filings, or legal conclusions about those filings. See Khoja v. 12 Orexigen Therapeutics, Inc., 899 F.3d 988, 1000 (9th Cir. 2018) (it is improper to judicially 13 notice a transcript when the substance of the transcript “is subject to varying interpretations, and 14 there is a reasonable dispute as to what the [transcript] establishes.”) (citation omitted). For this 15 reason, the Court may judicially notice the fact that Defendant’s “notice of motion and special 16 motion to strike, pursuant to C.C.P. § 425.16 (see ECF No. 3 at 79–132 (presumably related to 17 Requests 3, 4, and 11)) was filed as a “filed on demand” filing with the Superior Court for the 18 County of Stanislaus on February 15, 2023, but it cannot judicially note as true the facts and 19 arguments asserted by Defendant in her motion. Khoja, 899 F.3d at 1000 . The same applies to 20 Defendant’s affidavit (Request 14, ECF No. 3 at 125–30). Similarly, the Court cannot judicially 21 notice certain orders filed in cases to be “void” merely because Defendant characterizes them as 22 such in her court filing and caption (see ECF No. 3 at 79). Khoja, 899 F.3d at 1000 . Thus, 23 Defendant’s Requests 5, 6, 7, and 8 must be denied. 24 The Court also declines to take judicial notice of Defendant’s “petition for writ of 25 prohibition/mandate/habeas corpus” (Request 1, ECF No. 3 at 6–25), and her “Motion to 26 Dismiss/Request to Enter Default C.C.P. in Anti-SLAPP Filed February 15, 2023” (Request 13, 27 ECF No. 3 at 141–96), as they are unsigned, unverified documents with no indicia of being filed 28 with any court, and containing legal arguments and facts subject to dispute. 1 Finally, the Court may judicially note Defendant filed an affidavit in Case No. CR2 2008761 on April 25, 2023 (Request 14, ECF No. 3 at 198–208), but it cannot judicially notice 3 the facts contained therein, which may be subject to dispute. Khoja, 899 F.3d at 1000 . 4 C. Conclusion 5 In sum, with respect to the documents attached to her request for judicial notice and based 6 on the foregoing, the Court grants Defendant’s request for judicial notice as to Requests 2, 9, 10, 7 and 12, and the fact that the documents identified in Requests 3, 4, 11, and 14 were filed in the 8 Superior Court of Stanislaus County, but declines to judicially notice the truth of the matter 9 asserted within Defendant’s filings with respect to those requests. All other requests are denied. 10 II. 11 NOTICE OF REMOVAL 12 Defendant purports to remove this action pursuant to 28 U.S.C. §§ 1455 and 1331. (ECF 13 No. 1 at 2.) However, she also appears to argue the matter is brought before this Court pursuant 14 to 28 U.S.C. § 1332 (diversity jurisdiction), 28 U.S.C. § 1443 (civil actions), 28 U.S.C. § 1914 ,2 15 and 28 U.S.C. § 1441 (removal of civil actions). (See ECF No. 1 at 2–5.) 16 As an initial matter, the Court notes §§ 1331, 1332, and 1441 are not applicable here, 17 where Defendant purports to remove a criminal action, because these sections pertain to the 18 removal of civil actions. See 28 U.S.C. § 1441 (discussing removal of civil actions); 28 U.S.C. § 19 1331 (providing federal question jurisdiction in civil actions); 28 U.S.C. § 1332 (a) (providing for 20 diversity jurisdiction in civil actions). 21 A. 28 U.S.C. § 1455 22 Turning to the applicable statutes, 28 U.S.C. § 1455 provides the following procedures for 23 removal of criminal prosecutions: 24 (a) Notice of removal.—A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the 25 district court of the United States for the district and division within which such prosecution is pending a notice of removal signed 26 pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, [2] 28 U.S.C. § 1914 concerns the payment of filing fees and therefore relates to Defendant’s motion to proceed in 28 forma pauperis; as such, it shall be addressed in the next section of this order. 1 together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. [2] (b) Requirements.—(1) A notice of removal of a criminal 3 prosecution shall be filed not later than 30 days after the arraignment in the State court, or at any time before trials, 4 whichever is earlier, except that for good cause shown the United States district court may enter an order granting the defendant or 5 defendants leave to file the notice at a later time. 6 (2) A notice of removal of a criminal prosecution shall include all grounds for such removal … For good cause shown, the United 7 States district court may grant relief from the limitations of this paragraph. [8] … [9] (4) The United States district court in which such notice is filed 10 shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should 11 not be permitted, the court shall make an order for summary remand. [13] 28 U.S.C. § 1455 (emphasis in original). 14 Somewhat confusingly, Defendant’s filing is titled “notice of removal and interlocutory 15 appeal of state court action to United States District Court” (ECF No. 1 at 1–11); however, within 16 the same filing, Defendant also includes a separately-captioned document titled “petition for writ 17 of certiorari” (id. at 12–21), in which Defendant indicates she is petitioning the Court for a writ of 18 certiorari before judgment (in the State case) to review a decision of the California Superior Court 19 for the County of Stanislaus. More specifically, this second document requests a writ to issue 20 from this Court ordering the Superior Court of Stanislaus County to produce certain records to 21 Defendant from her State court casefile, which Defendant indicates were “fraudulent[ly] 22 conceal[ed]” and not provided to her. (See id. at 13 .) Defendant appears to assert removal is 23 proper because the Court has jurisdiction over “this civil action” based on federal question 24 jurisdiction.3 (Id. at 2–3.) Defendant indicates the Court should relate several cases— 25 FL22001489, PR20000740, FL20001695, 23STPB03148, and 22CCADO1060—to the instant [26] 3 Regardless of Defendant’s attempt to categorize Case No. CR-20008761 as a civil matter, the court filings attached [27] to her request for judicial notice, the case number itself, and Defendant’s own acknowledgement demonstrate that the case is a criminal matter. Defendant’s attempt to apply to her criminal case statutes which expressly only govern 28 civil matters is therefore unavailing. 1 criminal matter because they were filed all over California by Monica Izzo Viss and Simon Viss 2 based on similar allegations, even though Defendant’s anti-SLAPP motions were denied in each 3 of these cases. (Id. at 2.) Defendant asserts this Court has jurisdiction over her State case (and 4 the related case/s) because the denial of her anti-SLAPP motion is reviewable by this Court 5 pursuant to the collateral order doctrine and the Erie doctrine. (Id.) Defendant also asserts this 6 Court has jurisdiction over her State criminal case based on questions of law related to the 7 Rehabilitation Act and Civil Rights Act. (Id. at 2–3.) 8 The Court is unpersuaded that Defendant’s State case is properly removed pursuant to § 9 1455. The aforementioned facts do not constitute a “short and plain statement of the grounds for 10 removal,” as required under 28 U.S.C. § 1455 (a). Consequently, it is not entirely clear what 11 Defendant’s proffered basis for removal is. For example, at one point in the notice of removal, it 12 appears Defendant asserts she filed an anti-SLAPP motion in another case, FL-22-001489, which 13 was purportedly wrongfully denied (see ECF No. 3 at 133), and the current criminal case, CR-2014 008761, is removed based on that denial because it is a related SLAPP case. (See ECF No. 1 at 15 2.) At another point in the notice of removal, Defendant appears to assert the removal is 16 predicated on a purported “deprivation of hearings and a fair trial, deprivation of witnesses and 17 evidence and discovery, abuse of discovery, prosecutorial witness tampering, prosecutorial 18 evidence tampering, judicial misconduct and retaliation, and more” during her criminal 19 proceedings, as well as violations of due process and equal protection rights. (Id. at 3, 4.) In any 20 event, statements that this Court has jurisdiction over the criminal matter due to federal question 21 jurisdiction, diversity jurisdiction, and other statutes are conclusory; moreover, Defendant’s 22 reliance on civil statutes that are inapplicable to the instant criminal matter is unavailing. 23 Further, Defendant’s reference to cases other than the criminal matter, CR-20-008761, is 24 unavailing, as there is no indication that these cases have been consolidated, much less related to 25 the instant matter, and are therefore not presently before this Court. In fact, it is not entirely clear 26 under what statutes Defendant is being charged in her criminal case because, as noted below, 27 Defendant does not attach copies of the pleadings from her criminal case to the instant removal 28 notice and she does not identify the underlying criminal charges in her notice of removal. As best 1 as the Court can ascertain from the documents attached to the request for judicial notice, however, 2 it appears Defendant was charged with violations of California Vehicle Code § 23152(a) (driving 3 under the influence) and California Penal Code § 273a(a) (willfully permitting a child under her 4 care or custody to be “placed in a situation where his or her person or health is endangered” 5 “under circumstances or conditions likely to produce great bodily harm or death”), regarding an 6 incident occurring on July 11, 2020. (See ECF No. 3 at 11.) 7 Defendant also fails to attach copies of “all process, pleadings, and orders” served upon 8 her in the at-issue criminal case, in compliance with 28 U.S.C. § 1455 (a). Defendant argues these 9 filings were never served on her. But the Court finds this argument unavailing. The one order 10 from Defendant’s criminal case which she does submit (see ECF No. 3 at 135–37) indicates 11 Defendant is represented by court-appointed counsel in her criminal matter, and therefore has 12 access to her casefile through her attorney.4 Specially, the criminal court notes in its February 16, 13 2023 order in case CR-20-008761, “Ms. Schaupp is represented by counsel….” (Id. at 135.) 14 Nor is the Court persuaded that Defendant’s removal is timely under the statute. Section 15 1455 requires removal of a criminal matter before the earlier of either: 30 days after the 16 arraignment, or before trial. 28 U.S.C. § 1455 (b)(1). Here, however, some of Defendant’s 17 statements suggest that her criminal matter has been finally adjudicated (see ECF No. 3 at 201 18 (affidavit discussing the “trial phase” of Defendant’s criminal case); see also id. at 6–25 19 (document created by Defendant that appears to be intended as a writ of habeas corpus, relating to 20 criminal case)), though this is also unclear, as Defendant does not attach copies of “all process, 21 pleadings, and orders,” 28 U.S.C. § 1455 (a), served upon her in the at-issue criminal case. The 22 order from case CR-20-008761 indicates, as of February 16, 2023, the criminal matter was set for 23 further proceedings regarding a pending determination of competency pursuant to Cal. Penal 24 Code § 1368. (ECF No. 3 at 135.) Further, the February 16, 2023 order was issued at least 40 25 days after Defendant’s prior court date. (See id. at 136.) On this record, the Court does not find [26] 4 The fact that Defendant is represented by counsel in her criminal case also suggests that her attempt to file the instant removal notice, pro se, is inappropriate absent any indication that Defendant is no longer represented by her [27] criminal case court-appointed attorney. (See also id. at 135 (court order indicating any pro se filing submitted by Defendant to the state court would not be deemed filed, but would instead be automatically forwarded to her attorney 28 for further consideration on how to proceed).) 1 good cause exists to grant Defendant leave to file the notice of removal at a later time than that 2 provided in the statute. 28 U.S.C. § 1455 (b)(1). 3 At bottom, Defendant’s notice of removal fails to satisfy the procedural or substantive 4 requirements of 28 U.S.C. § 1455 , and the Court does not discern any good cause to relieve 5 Defendant of these requirements. Accordingly, the case must be summarily remanded. 28 U.S.C. 6 § 1455(b)(4). 7 B. 28 U.S.C. § 1443 8 The Court also considers Defendant’s notice of removal pursuant to 28 U.S.C. § 1443 . 9 Section 1443 permits removal of “civil actions or criminal prosecutions” by a defendant based on 10 allegations that state proceedings would violate certain federally-protected rights. Specifically, 11 this provision allows for removal, by a defendant, of a criminal case from state court to federal 12 court in two circumstances: 13 (1) [the defendant] is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of 14 citizens of the United States, or of all persons within the jurisdiction thereof; [or] [15] (2) [the prosecution is] for any act under color of authority derived 16 from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law. [18] 28 U.S.C. § 1443 . 19 As previously noted, Defendant appears to assert the removal is predicated on a purported 20 “deprivation of hearings and a fair trial, deprivation of witnesses and evidence and discovery, 21 abuse of discovery, prosecutorial witness tampering, prosecutorial evidence tampering, judicial 22 misconduct and retaliation, and more” during her criminal proceedings, as well as violations of 23 due process and equal protection rights. (ECF No. 1 at 3, 4.) However, these assertions are all 24 conclusory and no supporting facts are provided. It is, therefore, entirely unclear to this Court 25 what wrongful conduct Defendant is claiming with respect to her criminal case. At most, based 26 on the various random court documents included in Defendant’s request for judicial notice, the 27 Court can discern the following procedural status of Defendant’s underlying case/s: 28 In an order of the court in the matter of Viss v. Schaupp, Case No. FL-22-001489, the 1 state court notes Defendant filed an “ex parte application” for a domestic violence restraining 2 order, in which Defendant named “plaintiffs” who are not parties to that case. (ECF No. 3 at 3 133.) More specifically, the filing refers to that case as “Stanislaus County Public Defender, et al. 4 v. Carolyn Hope Schaupp”; the court noted no such case exists at the Stanislaus Superior Court 5 and Defendant may not unilaterally create it through her pleading captions. (Id.) Accordingly, 6 the court rejected Defendant’s ex parte filing because she did not seek and obtain leave to add 7 such nonparties to the action. (Id.) In the same order, the court notes Defendant filed a “Notice 8 of Motion and Special Motion to Strike” bearing the same defects and struck that filing as well. 9 (Id.) Having struck the improper filings, the state court further noted no hearings on those 10 motions would be set, nor would any further ruling on those matters be issued. (Id.) 11 In the underlying criminal action that Defendant purports to remove, Case No. CR-2012 008761, the state court issued an order on February 16, 2023, addressing Defendant’s purported 13 anti-SLAPP motion. (Id. at 135.) In this order, the state court noted Defendant failed to timely 14 appear for a hearing to determine competency pursuant to California Penal Code § 1368, and that 15 it had discovered the reason for Defendant’s absence was that she was at the clerk’s office at that 16 time, attempting to file an “Ex Parte Motion to File Anti-SLAPP Hearing” and a “Special Motion 17 to Strike Pursuant to PC 425.16.” (Id.) The court noted Defendant “has on more than one 18 occasion disrupted and delayed the orderly process of court by going to the Clerk’s office and 19 filing documents during times when her matter was scheduled for court.” (Id. at 136.) The state 20 court further noted that, because Defendant is represented by counsel, her attempts to file 21 documents pro se were improper; accordingly, the court indicated that, rather than accept further 22 pleadings from Defendant, it would forward the documents to her attorney, who may then 23 determine how to proceed. (Id. at 135.) In addition, the court noted it had considered the 24 propriety of an anti-SLAPP motion and would consider and rule on any such motion if it were 25 brought forward by counsel. (Id. at 136.) Finally, the state court noted that if Defendant 26 “chooses to absent herself from court proceedings, the Court will consider forfeiting the bond in 27 the case and issue a warrant for her arrest, unless the circumstances and good cause exists to do 28 otherwise.” (Id. at 137.) 1 This Court surmises Defendant’s instant notice of removal, which she has indicated is 2 predicated on the denial of her anti-SLAPP motion (ECF No. 1 at 2), is based on the same 3 purported anti-SLAPP motions rejected by the state court as improperly filed by Defendant 4 without knowledge of her counsel, and as pertaining to nonparties and a case which does not 5 exist. In light of the aforementioned state court orders, this Court cannot conclude Defendant has 6 presented any viable legal basis for removal at this time. 7 In sum, because Defendant’s notice fails to state a legally cognizable basis for removal of 8 the state criminal prosecution, and because granting leave to amend would be futile given that a 9 proper basis could not be stated on amendment of the present set of allegations, the Court finds 10 the notice of removal should be summarily dismissed and this action should be remanded to the 11 Superior Court of Stanislaus County. 12 III. 13 APPLICATION TO PROCEED IN FORMA PAUPERIS [14] 28 U.S.C. § 1914 concerns the payment of filing fees and therefore relates to Defendant’s 15 motion to proceed in forma pauperis. Section 1914 provides, “[t]he clerk of each district court 16 shall require the parties instituting any civil action, suit or proceeding in such court, whether by 17 original process, removal or otherwise, to pay a filing fee of $350, except that on application for a 18 writ of habeas corpus the filing fee shall be $5.” 28 U.S.C. § 1914 (a). Because this statute only 19 contemplates the requirement of a filing fee in civil actions and does not address criminal actions, 20 numerous federal district courts have determined the filing fee requirement is applicable only to 21 civil and not criminal actions. See, e.g., Martin v. Juridicary, 3rd Cir., No. CV 22-00506 LEK22 WRP, 2022 WL 18586942 , at *1 (D. Haw. Dec. 12, 2022), report and recommendation adopted 23 sub nom. Martin v. Hawaii Judiciary, 3rd Cir., 2023 WL 143332 (D. Haw. Jan. 10, 2023), appeal 24 dismissed sub nom. Martin v. Hawaii Judiciary, No. 23-15211, 2023 WL 3480916 (9th Cir. Apr. 25 20, 2023) (noting the Ninth Circuit has not addressed this issue, but the Fifth Circuit has held 26 there is no filing fee to remove a state criminal case to federal court because 28 U.S.C. § 1914 (a) 27 only requires filing fees for civil actions) (collecting cases). 28 Consistent with these persuasive legal authorities, the Court finds Plaintiff is not required 1 to pay the civil case filing fee in connection with her removal of the instant State criminal action. 2 Accordingly, Defendant’s application to proceed in forma pauperis in this matter (ECF No. 2) 3 should be denied as moot. 4 IV. 5 ORDER AND RECOMMENDATIONS 6 Based on the foregoing, IT IS HEREBY ORDERED that the Clerk of the Court shall 7 randomly assign a District Judge to this action. 8 Furthermore, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be DENIED as 10 moot; 11 2. This action be SUMMARILY DISMISSED and REMANDED to the Superior 12 Court for Stanislaus County; and 13 3. The Clerk of the Court be directed to CLOSE this case. 14 These findings and recommendations are submitted to the district judge assigned to this 15 action, pursuant to 28 U.S.C. § 636 (b)(1)(B) and this Court’s Local Rule 304. Within fourteen 16 (14) days of issuance of this recommendation, Plaintiff may file written objections to the findings 17 and recommendations with the Court. Such a document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendations.” 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 The district judge will review the magistrate judge’s findings and recommendations 2 | pursuant to 28 U.S.C. § 636 (b)(1)(C). Plaintiff is advised that failure to file objections within the 3 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 4 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [5] 6 IT IS SO ORDERED. Zl Se 7 | Dated: _June 9, 2023 _ _ PFA ee UNITED STATES MAGISTRATE JUDGE