United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge.
se Defendant, Cedrick Deshaun Walker, filed a notice of
removal which purports to remove criminal actions from the
Berkeley County Municipal Court, Goose Creek Municipal Court,
Hanahan Municipal Court, and Summerville Municipal
Court. Notice of Removal, ECF No. 1. As
part of his filing, the Defendant has submitted copies of
pre-trial hearing notices in six criminal cases which appear
to be pending against him in the City of Goose Creek, South
Carolina (Ticket Numbers 2015A0820200656, 2015A080200623,
2015A0820200624, 2Ol5AO82O2OO633, 2Ol5AO82O2OO639,
and2Ol5AO82O2OO65l). ECF No. 1-1 at5-10.
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;l6cvl28, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26,
2016). Defendant's removal fails to qualify under any of
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.
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. 2Ol6)(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;O8CV72, 2008 WL 4153765, at *3 (E.D.Va.
Sept. 5, 2008).
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)).
extent the Defendant is instead seeking to remove his
criminal cases 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 §§ 1331 and 1441, the
Defendant has still failed to provide a basis for
jurisdiction. Defendant mentions the Federal Declaratory
Judgment Act (ECF No. 1 at 3) in his filing, which allows the
court to address a complaint or controversy if the court has
jurisdiction. 28 U.S.C. § 2201. However, the Defendant
has not raised an issue which invokes any federal question
jurisdiction. The Defendant may also be asserting as a ground
for removal "Rule 60. Relief from Judgment or
Order." ECF No. 1 at 3. However, the 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,
it appears the Defendant may be asserting that he is
"diverse" from the entities prosecuting him, and
that his removal of his criminal cases 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 cases Defendant is
attempting to remove are criminal, not civil, actions.
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. § l44l(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 these matters, these actions should be remanded back to
the City of Goose Creek Municipal Court. See 28 U.S.C. §
1455(b)(4); see a]so 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. 3:16cvl 28, 2016 WL 4507814, at *3
(E.D.Va. Aug. 26, 2Ol6)(collecting cases).
on the foregoing, it is recommended that these actions be
remanded to the City of Goose Creek Municipal Court court sua
sponte pursuant to 28 U.S.C. § 1455.
parties are referred to the Notice Page attached hereto.
of Right to File Objections to Report ...