ORDER GRANTING MOTIONS TO DISMISS; REMANDING ACTION

JEFFREY T. MILLER, District Judge.

Defendants Judicial Council of California and the Superior Court of California, County of San Diego, erroneously sued as Superior Court of San Diego, (collectively the "Judicial Defendants") move to dismiss and to strike portions of Plaintiff's First Amended Complaint ("FAC") for failure to state a claim; defendants California Department of Corrections and Rehabilitation, and two of its officials sued in their official capacities, Scott Kernan and Kathleen Allison, (collectively "CDCR Defendants"), move to dismiss the FAC on grounds that they are not persons under 42 U.S.C. §1983; and defendant County of San Diego ("County") moves to dismiss the FAC for failure to state a claim. The court grants the motions to dismiss the federal claims and remands the action to the Superior Court of California, County of San Diego.

BACKGROUND

On January 6, 2017, Defendants removed this action from the Superior Court of California, County of San Diego. The FAC, filed on January 27, 2017, alleges ten claims for relief: (1) false imprisonment; (2) violation of 42 U.S.C. §1983, Fourteenth Amendment; (3) violation of 42 U.S.C. §1983, Fourth and Fourteenth Amendments; (4) violation of 42 U.S.C. §1983, Eighth Amendment; (5) negligent infliction of emotional distress; (6) negligence; (7) breach of mandatory public entity duties; (8) legal malpractice; (9) declaratory judgment; and (10) violation of 42 U.S.C. §1983, Sixth Amendment. Plaintiff's claims arise from the following generally described allegations.

While on probation for a commercial burglary conviction in San Diego Superior Court Case No. SCD 290954, on or about June 27, 2012, Plaintiff was re-incarcerated to a term of six years for new offenses of petty theft, receiving stolen property, and probation violation in Case No. SCD 241737. (FAC ¶¶53-55). In both these cases, Plaintiff was represented by the County of San Diego's Public Defenders Office ("SDPDO").

On November 17, 2014, and October 7, 2015, an unknown entity acting on Plaintiff's behalf, "but without his knowledge or consent," filed Petitions for Redesignation of Sentence ("Petitions") pursuant to Penal Code §1170.18, the codification of Proposition 47 passed by voters on November 4, 2014.1 At no time had Plaintiff been informed or consulted about the filing of these two Petitions. (FAC ¶58). On March 3, 2015, Judge David. J. Danielsen of the San Diego Superior Court granted both Petitions and ordered that Plaintiff be released "forthwith." (FAC ¶¶59-60). The Minute Orders in both cases reflect that SDPDO appeared on behalf of Plaintiff. Id. The Minute Orders, however, do not reflect the identify of the attorney who appeared on Plaintiff's behalf. Plaintiff did not receive notice from the court, SDPDO, or any other party concerning the Minute Orders ordering his immediate release from custody.

On October 1, 2015, Plaintiff, acting on his own behalf, filed a Petition for Redesignation of Sentence pursuant to Penal Code §1170.18. On October 13, 2015, Plaintiff received notice from Clerk of Court for the Superior Court informing him that his Petitions had been granted on March 3, 2015. Plaintiff was released from custody on October 23, 2015.

Plaintiff seeks compensation for the 230 additional days he spent in custody. (FAC ¶69). Plaintiff also seeks a declaration that his detention was unlawful and an award of attorney's fees and costs.

DISCUSSION

Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest[]" that the pleader is entitled to relief); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian, 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996).

Prior to Iqbal and Twombly, "a claim of municipal liability under § 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir.2007). In addressing the impact of Iqbal and Twombly on the pleading standards for civil rights cases, the Ninth Circuit more recently stated:

AE ex rel. Hernandez v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202 (9th Cir.2011)).

The Federal Claims

Concerned that the FAC fails to state a federal claim in this removal action, the court first addresses the federal claims and then analyzes whether the action was improvidently removed from the Superior Court. Courts strictly construe the removal statute, 28 U.S.C. § 1441, against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992). Indeed, there is a "strong presumption" against removal, and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Id. This strong presumption "against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. "[A] federal court may dismiss sua sponte if jurisdiction is lacking." Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir.1983).

The Judicial Defendants' Motion

The Second, Third, and Fifth Causes of Action

Judicial Defendants move to dismiss the Second, Third, and Fifth Causes of Action because neither the Judicial Council nor the Superior Court are persons within the meaning of 42 U.S.C. §1983. Under 42 U.S.C. § 1983, "[e]very person" who acts under color of state law may be sued. The term "person" has been interpreted broadly, even to include cities, counties, and other local government entities, but not states or their agencies. See Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978). It has long been the law that a damages action against a State, or its officials acting in their official capacities, is an action against the State. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). As the Judicial Council of California and the Superior Court are indisputably state agencies, Plaintiff cannot assert a damages claim against these Defendants. See Wolfe v. Strankham, 392 F.3d 358, 364 (9th Cir. 2004) (the Judicial Council of California is a state agency); Greater Los Angeles Council on Dearness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir.1987) (the California Superior Court is a state agency).

Plaintiff contends that the Judicial Defendants waived Eleventh Amendment immunity and are, therefore, subject to §1983 liability. The court rejects this argument because, among other things, the Judicial Defendants are not asserting the Eleventh Amendment to bar Plaintiff's claims. Rather, the threshold issue under §1983 is whether a state agency is a "person" for purposes of §1983. Plaintiff fails to establish the prerequisites for stating a §1983 claim.

In sum, the court dismisses the §1983 claims with prejudice and without leave to amend.

The Ninth Cause of Action

Judicial Defendants move to dismiss this claim for declaratory relief brought pursuant to 28 U.S.C. §§2201 and 2202 because (1) declaratory relief is not an independent cause of action, but instead, a remedy, and (2) declaratory relief operates prospectively and Plaintiff seeks relief to address past wrongs. Plaintiff does not oppose dismissal of this claim. Accordingly, the court dismisses the declaratory relief claims against all Defendants with prejudice.

In sum, the court dismisses all federal claims asserted against the Judicial Defendants.

The County of San Diego's Motion

It is well-established that municipalities, their agencies and their supervisory personnel cannot be held liable under §1983 on any theory of respondeat superior or vicarious liability. They can, however, be held liable for deprivations of constitutional rights resulting from their formal policies, practices or customs. See Monell, 436 U.S. at 691-693; Watts v. County of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001); Shaw v. California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986).

Locating a "policy" ensures that a municipality "is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may be fairly said to be those of the municipality." Board of the County Comm'rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 403-04 (1997) (citing Monell, 436 U.S. at 694). Similarly, an act performed pursuant to a "custom" which has not been "formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law." Id. (citing Monell, 436 U.S. at 690-691); see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (holding that municipal liability under § 1983 may be shown if Plaintiff proves that the employee committed an alleged constitutional violation pursuant to a "longstanding practice or custom which constitutes the `standard operating procedure' of the local government entity.").

"To bring a § 1983 claim against a local government entity, a plaintiff must plead that a `municipality's policy or custom caused a violation of the plaintiff's constitutional rights." Ass'n for Los Angeles Deputy Sheriffs v. Cnty. of Los Angeles, 648 F.3d 986, 992-93 (9th Cir. 2011). A plaintiff must show (1) he possessed a constitutional right of which he was deprived, (2) the municipality had a policy, (3) the policy amounts to deliberate indifference to the plaintiff's constitutional right, and (4) the policy is the "moving force behind the constitutional violation." Anderson v. Warner, 451 F.3d 1063, 1070 (9th Cir. 2006). "For a policy to be the moving force behind the deprivation of a constitutional right, the identified deficiency in the policy must be closely related to the ultimate injury," and the plaintiff must establish "that the injury would have been avoided had proper policies been implemented." Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006).

Here, the FAC is devoid of any allegations that County maintained a policy, custom, or practice of failing to transmit official Superior Court documents to the appropriate entities to obtain reductions in sentence pursuant to Proposition 47. Moreover, Plaintiff fails to allege any role by County in disseminating Minute Orders issued by the Superior Court, an entity distinct from County.

Finally, to the extent Plaintiff seeks to impose §1983 liability on SDPDO, such a claim necessarily fails. Public defenders do not act under color of state law, see Polk County v. Dodson, 454 U.S. 312, 325 (1981); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (applying the holding of Polk in a Bivens action), and there is no respondeat superior liability under §1983.

In sum, the court grants the motion to dismiss all federal claims asserted against the County of San Diego without leave to amend.

CDCR's Motion

CDCR, as well as Scott Kernan and Kathleen Allison, sued in their official capacities for money damages, move to dismiss the federal claims because they are not persons under §1983. The court grants the motion to dismiss because the CDCR is an arm of the state and, therefore, not subject to §1983 liability. Bennett v. People of State of California, 406 F.2d 36 (9th Cir. 1969) (CDCR is not a person for purposes of §1983); Haack v. California Dep't of Corrections and Rehabilitation, 2012 WL 570353, at *4 (E.D. Cal. Feb. 12, 2012); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

Plaintiff contends that the CDCR Defendants waived Eleventh Amendment immunity and are, therefore, subject to §1983 liability. The court rejects this argument because, among other things, the CDCR Defendants are not asserting the Eleventh Amendment to bar Plaintiff's claims. Rather, the threshold issue under §1983 is whether a state agency like CDCR, or its officials acting in their official capacities, are "persons" for purposes of §1983, something Plaintiff fails to establish.

In sum, the court grants the motion to dismiss the federal claims without leave to amend.

Remand

The court sua sponte remands this action to state court. See Maniar v. FDIC, 979 F.2d 782, 785 (9th Cir. 1992) (the court may sua sponte remand an action to state court). Federal courts are courts of limited jurisdiction. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868)). Accordingly, federal courts are under a continuing duty to confirm their jurisdictional power and are even "obliged to inquire sua sponte whenever a doubt arises as to [its] existence. . . ." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (citations omitted).

"Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the Untied States shall be removable without regard to the citizenship or residence of the parties." 28 U.S.C. §1441(b). Whether a claim "arises under" federal law for removal purposes is determined by the well-pleaded complaint rule. Under the "well-pleaded complaint rule, . . . federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (internal quotation marks omitted). "[T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813 (1986). A "federal issue" is not "a password opening federal courts to any state action embracing a point of federal law." Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005) (internal quotation marks omitted). See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998). The party who invokes federal removal jurisdiction, has the burden of demonstrating the existence of federal jurisdiction. See Gaus, 980 F.2d 566; B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981). Any doubts regarding removal jurisdiction are construed against removal and in favor of remanding the case to state court. See Gaus, 980 F.2d at 566.2

Here, under the well-pleaded complaint rule, Plaintiff's claims, as set forth in the original complaint, the operative complaint at the time of removal, do not raise federal questions against the named defendants nor do they require the resolution of substantial federal issues.3 As set forth above, applying long-standing unassailable threshold principles regarding proper parties cognizable as defendants in a §1983 case, no federal questions are asserted against any Defendant. Accordingly, as federal jurisdiction must "be rejected if there is any doubt as to the right of removal in the first instance," Gaus, 980 F.2d at 566, the court remands the action to state court. Pursuant to 28 U.S.C. §1367, the court declines to exercise supplemental jurisdiction over the state law claims and remands the action to the Superior Court of California, County of San Diego.

In sum, the court grants all motions to dismiss the federal claims without leave to amend and remands this action to the Superior Court of California, County of San Diego. The Clerk of Court is instructed to close the file.

IT IS SO ORDERED.