United States District Court, M.D. North Carolina
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
WEBSTER, UNITED STATES MAGISTRATE JUDGE
a pretrial detainee facing criminal charges in the Superior
Court of Rowan County, North Carolina, submitted a document
titled as a Notice of Removal in which he purports to remove
state court criminal cases to this Court under 28 U.S.C.
§ 1455. In that document, he alleges that his arrest was
illegal and that he is being denied his rights because he has
been unable to view certain documentation and question
defendant in a state criminal case files a notice of removal
in a United States District Court, that court “shall
examine the notice promptly. If it clearly appears on the
face of the notice and any exhibits annexed thereto that
removal should not be permitted, the court shall make an
order for summary remand.” 28 U.S.C. § 1455(b)(4).
regard, “‘federal courts are courts of limited
jurisdiction,' constrained to exercise only the authority
conferred by Article III of the Constitution and
affirmatively granted by federal statute.” In re
Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir.1998)
(quoting Owen Equip. and Erection Co. v. Kroger, 437
U.S. 365, 374 (1978)). Moreover, federal law severely limits
the circumstances under which a litigant may remove a case
from state court to federal court. See 28 U.S.C.
§§ 1441-1453 (2011); see also Mulcahey v.
Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir.1994) (“Because removal jurisdiction raises
significant federalism concerns, we must strictly construe
removal jurisdiction.”). Further, “[t]he burden
of establishing federal jurisdiction is placed upon the party
seeking removal.” Mulcahey, 29 F.3d at 151.
filing cannot carry that burden in this case. Of the federal
removal statutes, only three, 28 U.S.C. §§ 1442,
1442a, and 1443, provide for removal of state criminal cases.
See 28 U.S.C. §§ 1441-1453; see
also, Iowa v. Johnson, 976 F.Supp. 812, 816
(N.D. Iowa 1997) (“If this state criminal prosecution
is removable to federal district court, it must be on the
basis of one of three federal statutes, 28 U.S.C. §
1442, 28 U.S.C. § 1442a, or 28 U.S.C. §
1443.”). Plaintiff does not satisfy the conditions of
those three statutes because the instant Notice of Removal
and its attachments lack allegations that Plaintiff acted as
or assisted a federal official, acted as a military member,
or faces denial of racial equality. See City of
Greenwood, Miss. v. Peacock, 384 U.S. 808, 815 (1966)
(“[T]he history of [28 U.S.C. § ] 1443(2)
demonstrates convincingly that this subsection of the removal
statute is available only to federal officers and to persons
assisting such officers ....“ (emphasis added));
Crawford v. State of Md., No. 92-2190, 4 F.3d 984
(table), 1993 WL 375649, at *1 (4th Cir. Sept. 24, 1993)
(unpublished) (“[W]e find that the petition for removal
[under 28 U.S.C. § 1443(1) ] was without substantive
merit because it contemplated broad contentions under
generally applicable constitutional rights, rather than
‘any law providing for specific civil rights stated in
terms of racial equality.'” (quoting Georgia v.
Rachel, 384 U.S. 780, 792 (1966)) (emphasis added));
Florida v. Simanonok, 850 F.2d 1429, 1430 n. 1 (11th
Cir.1988) (“Clearly, the party seeking removal [under
28 U.S.C. § 1442a] must also be a member of the armed
forces.” (emphasis added)); North Carolina v.
Carr, 386 F.2d 129, 131 (4th Cir.1967) (observing that
“purpose of [28 U.S.C. § 1442] is to take from the
State courts the indefeasible power to hold an officer or
agent of the United States criminally or civilly liable for
an act allegedly performed in the execution of any of the
powers or responsibilities of the Federal sovereign”
Plaintiff makes only general allegations that the state has
violated or is violating his constitutional rights. A proper
notice of removal must cite to a specific federal law
providing for equal civil rights and allege that the state
court prosecution will deny those rights. Doe v.
Berry, 967 F.2d 1255, 1256 (8th Cir. 1992). Plaintiff
does not do so here. Further, it is not sufficient to claim
“‘that the defendant's federal equal civil
rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the
charges against the defendant are false, or that the
defendant is unable to obtain a fair trial in a particular
state court.'” Id. at 1257 (quoting
Peacock, 384 U.S. at 827). Plaintiff's filing
contains exactly that type of general, and insufficient,
allegations. Therefore, his filing cannot serve to
successfully remove his criminal case to this Court and the
Court should enter an order for summary remand of
Plaintiff's criminal case to the state court.
because Plaintiff alleges that state officials violated his
constitutional rights in various ways, the Court exercised an
abundance of caution and treated the filing for
administrative purposes as a civil rights action pursuant to
42 U.S.C. § 1983. Nevertheless, the form of the
Complaint is such that serious flaws make it impossible to
further process the Complaint. The problems are:
1. The filing fee was not received nor was a proper affidavit
to proceed in forma pauperis submitted, with
sufficient information completed or signed by Plaintiff, to
2. The Complaint is not on forms prescribed for use by this
Court, nor is the information requested by such forms and
necessary to process the Complaint pursuant to 28 U.S.C.
§ 1915A contained in Plaintiff's submission.
See LR 7.1(e).
the Complaint should be dismissed, but without prejudice to
Plaintiff filing a new complaint, on the proper § 1983
forms, which corrects the defects of the present Complaint.
To further aid Plaintiff, the Clerk is instructed to send
Plaintiff new § 1983 forms, instructions, an application
to proceed in forma pauperis, and a copy of
pertinent parts of Fed.R.Civ.P. 8 (i.e., Sections
(a) & (d)). Further, to the extent that Plaintiff seeks
to have this Court intervene in an ongoing state court
criminal matter, he would have to file a petition for habeas
corpus under 28 U.S.C. § 2241. If Plaintiff wishes to
file a habeas petition, he must seek the proper forms for
doing so from the Clerk's Office. He should also be aware
that it is not ordinarily proper for this Court to intervene
in pending state court criminal matters.
forma pauperis status is granted for the sole purpose of
entering this Order and Recommendation.
THEREFORE ORDERED that in forma pauperis status is
granted for the sole purpose of entering this Order and
Recommendation. The Clerk is instructed to send Plaintiff
§ 1983 forms, instructions, an application to proceed
in forma pauperis, and a copy of pertinent parts of
Fed.R.Civ.P. 8 (i.e., Sections (a) & (d)).
RECOMMENDED that, pursuant to 28 U.S.C. § 1455(b)(4),
Plaintiffs criminal case be remanded to the General Court of
Justice, Superior Court Division, Rowan County, North
FURTHER RECOMMENDED that, to the extent that Plaintiffs
filing may be an attempt at a civil or habeas corpus action
in this Court, the action be dismissed sua sponte
without prejudice to Plaintiff filing a new complaint or