Update: The state attorney general's office called us back, and its take appears at the bottom of the post.
In the case of the sexually assaulted transgender prisoner suing the state prison system, events played out just as the plaintiff’s attorney predicted.
The California attorney general’s office had petitioned for the case to be removed to federal court with an unusual sense of timing. By the time the petition was e-filed on Friday night, the state court trial judge had heard motions in limine and jury selection was scheduled to begin the following Monday.
Plaintiff’s attorney Gregory Walston accused the AG’s attorneys of filing a petition they knew would fail, but that would delay the trial by at least a week — just enough time to argue the lawsuit is moot at trial. Plaintiff Alexis Giraldo is scheduled to be paroled on Friday.
Today, U.S. District Judge Frank Damrell, Jr. remanded (.pdf) the matter back to San Francisco Superior Court, stating that the removal petition was untimely. Judge Damrell pointed to the same federal law that Walston cited in his response: 28 U.S.C. §1446, which requires a removal petition be filed within 30 days after receiving the first pleading in a state case. In this case, that was March 19.
“The court did everything they should have and everything I asked them,” Walston said.
Of course, the trial still ended up getting delayed a week. The AG’s press office had not returned a call before this posting.
Walston offered his two cents about how the trial judge might take the AG’s latest move.
“I can’t imagine that the court would be impressed by this,” he said.
Update: The attorney general's office called back shortly after we first posted this, and denied that the petition for removal had been a delay tactic.
Spokesman Gareth Lacy said, “We disagree with the inaccurate characterization of this case and look forward to having the factual issues decided in the appropriate forum namely, before a jury.”
— Millie Lapidario