United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, UNITED STATES MAGISTRATE JUDGE
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. 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.
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,
(last visited February 2, 2018); see also ECF No.
1-1 at 1-3.
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
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.
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).
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).
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
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)).
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
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).
on the foregoing, it is recommended that this action be
remanded to the state court sua sponte ...