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State v. Johnson

United States District Court, D. South Carolina

February 6, 2018

State of South Carolina, Plaintiff,
v.
Earl Johnson, Jr., Defendant.

          REPORT AND RECOMMENDATION

          BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE

         The pro se Defendant, Earl Johnson, Jr., filed a notice of removal on November 29, 2017, which purports to remove a criminal action from the Summerville, South Carolina Municipal Court.[1] Notice of Removal, ECF No. 1. Defendant has submitted copies of some documents related to his state case (Case Number 2015A1820500620). ECF No. 1-1.

         A review of the records for Dorchester County reveals that the Defendant has a pending case against him for breach/obtain signature or prop, under false pretenses, value $2, 000 or less (Case Number 2015 Al 820500620). See Dorchester County First Judicial Circuit Public Index, http://publicindex.sccourts.org/Dorchester/PublicIndex/CaseDetails.aspx?County=18&CourtAgency= 18205&Casenum=2015 A182050062 0&CaseType=C&HKey=744347109901177869109110 107538867881177148104112824876897111311852106661201106811057557676721111127381 (last visited February 2, 2018); see also ECF No. 1-1 at 1-3.

         Discussion

         This Court is required to order a summary remand if it "clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted." 28 U.S.C. § 1455(b)(4). Such is the case here. A defendant in a criminal proceeding in state court may properly remove the action only when he or she meets the substantive requirements of 28 U.S.C. §§ 1442 (Federal officers or agencies sued or prosecuted), 1442a (Members of armed forces sued or prosecuted), or 1443 (Civil rights cases), and the procedural requirements of 28 U.S.C. § 1455. See, e.g.. South Carolina v. Tucker. No. 3:17-1811-JFA-PJG. 2017 WL 3773137 (D.S.C. Aug. 11. 2017), adopted by. 2017 WL 3730566 (D.S.C. Aug. 30, 2017); Virginia v. El. Civil Action No. 3:16cvl28, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26, 2016). Defendant's removal fails to qualify under any of these provisions.

         To qualify for removal pursuant to § 1442, a removing party must establish that he is an officer of the United States or a person acting under an officer of the United States. 28 U.S.C. § 1442. Defendant has not alleged that he is a federal officer or that he was in any way assisting a federal official in the performance of his or her duties. Removal under § 1442a requires a removing party to show, among other things, that he is a member of the armed forces of the United States. 28 U.S.C. § 1442a. Defendant has not alleged that he is in the military. Thus, the Defendant has not alleged or shown any facts supporting removal under §§ 1442 or 1442a.

         Nor is this action removable under § 1443. The Supreme Court has stated that removal under 28 U.S.C. § 1443(2) "is available only to state officers;" City of Greenwood. Miss. v. Peacock. 384 U.S. 808, 824 n.22 (1966); and the Defendant has not alleged that he is a state officer. Additionally, Defendant has not shown that removal is proper under § 1443(1), under which a removing party must first show that the '"right allegedly denied ... arises under a federal law providing for specific civil rights stated in terms of racial equality;'" Lee-Bautista v. Bautista. 633 Fed.Appx. 148, 149 (4th Cir. 2016)(quoting Johnson v. Mississippi, 421 U.S. 213, 219 (1975)); and "that the removal petitioner' is denied or cannot enforce' the specified rights" in state court. Johnson v. Mississippi, 421 U.S. at 219 (citing Georgia v. Rachel. 384 U.S. 780, 803 (1966). Here, the Defendant has not alleged that he has been denied his civil rights in terms of racial equality, and Section 1443(1) does not serve to remedy "the violation of... constitutional rights phrased in terms of general rights applicable to all citizens." Pennsylvania v. Brown-Bey. 637 Fed.Appx. 686, 688 (3d Cir. 2016); see Dugas v. Hanover Cnty. Circuit Court, No. 3:08CV72, 2008 WL 4153765, at *3 (E.D.Va. Sept. 5, 2008).

         To the extent the Defendant is instead seeking to remove his criminal case pursuant to 28 U.S.C. § 1441 based on federal question or diversity jurisdiction, he cannot do so, as § 1441 only applies to the removal of civil cases. 28 U.S.C. § 1441(a) ["Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."](emphasis added). Moreover, under § 1331, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (emphasis added).

         Even if jurisdiction was proper under § § 13 31 and 1441, the Defendant has still failed to provide a basis for jurisdiction. Defendant mentions the Federal Declaratory Judgment Act (ECF No. 1-1 at 12) in his filing, which allows the court to address a complaint or controversy if the court has jurisdiction. 28 U.S.C. § 2201. However, Defendant has not raised an issue which invokes any federal question jurisdiction. Defendant also may be asserting as a ground for removal "Rule 60. Relief from Judgment or Order." ECF No. 1-1 at 12. However, Defendant has not pointed to any federal court order or judgment from which he seeks relief. Additionally, to the extent that the Defendant is attempting to assert jurisdiction based on a "sovereign citizen" type claim, any such claim should be dismissed as frivolous. See Smalls v. Sterling. No. 2:16-4005-RMG, 2017 WL 1957471, at *1 (D.S.C. May 11, 2017); Gaskins v. South Carolina. No. 2:15-CV-2589-DCN, 2015 WL 6464440, at *4 (D.S.C. Oct. 26, 2015)(collecting cases).

         The Defendant has also failed to satisfy the procedural requirements of § 1455, as he failed to sign his notice of removal pursuant to Rule 11 of the Federal Rules of Civil Procedure (§ 1455(a)), failed to provide a short and plain statement of the grounds for removal (1455(b)(2)), and failed to file all of the necessary state court documents required (§ 1455(a)).[2]

         Finally, it appears the Defendant may be asserting that he is "diverse" from the entities prosecuting him, and that his removal of his criminal case may therefore be proper based on diversity jurisdiction. However, § 1332 does not apply to criminal actions. See 28 U.S.C. § 1332, "[t]he district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and cost, and is between-(1) citizens of different States; [or] (2) citizens of a State and citizens or subjects of a foreign state...." 28 U.S.C. § 1332 (emphasis added). Again, the case Defendant is attempting to remove is a criminal, not a civil, action. Moreover, even if this was a civil action, Defendant is precluded as a matter of law from removing this case on the basis of diversity of citizenship since he is a citizen of the state in which the action was brought (South Carolina). See 28 U.S.C. § 1441(b)(2)["A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought."].

         Because Defendant fails to establish that this Court has jurisdiction over this matter, this action should be remanded back to the Summerville Municipal Court. See 28 U.S.C. § 1455(W4): see also North Carolina v. Dupree, 521 Fed.Appx. 181 (4th Cir. 2013)[Table][finding district court lacked subject matter jurisdiction over removal of state criminal prosecution because defendant did not make the requisite showing for removal under § 1443, and thus, remand to state court was appropriate]; Commonwealth of Va. v. El No. 3:16cvl28, 2016 WL 4507814, at *3 (E.D.Va. Aug. 26, 2016)(collecting cases).

         Conclusion

         Based on the foregoing, it is recommended[3] that this action be remanded to the state court sua sponte ...


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