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Hunter v. State of South Carolina Government

United States District Court, D. South Carolina, Columbia Division

March 6, 2018

Regina M. Hunter El, Plaintiff,
v.
State of South Carolina Government; The Honorable Henry McMaster; The Honorable Mr. Alan Wilson; South Carolina Judicial Department; The Honorable Donald W. Beatty; Mr. Terry Leverette; Sumter County Summary Court; The Honorable Kristi F. Curtis; The Honorable Lee A. Tindal; The Honorable Fred H. Gordon; Ms. Evesra McFaddin; Sumter County Sheriff's Office; Mr. Anthony Dennis; Mr. J. Hofer, R.; Ms. Kathy Ward; South Carolina Department of Motor Vehicles; Mr. Kevin A. Shwedo; South Carolina Department of Transportation Commission & Administration; Mr. Woodrow W. Willard, Jr.; Mr. John N. Hardee; Mr. Robert D. Robbins; Mr. Ben H. Davis, Jr.; Mr. David E. Branham, Sr.; Mr. Samuel B. Glover; Mr. Tony K. Cox; Mr. Clifton Parker; John Doe; Jane Doe; Mrs. Christy Hall; Mr. Leland Colvin; Mr. Brian W. Keys; Mr. James J. Feda, Defendants.

          REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Regina M. Hunter El, (“Plaintiff”), a self-represented litigant, seeks to remove this matter from the Sumter County Summary Court.[1] This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Having reviewed the notice of removal in accordance with applicable law, the court concludes that the matter should be summarily remanded.

         I. Procedural Background

         Plaintiff indicates she seeks removal of the matter State of South Carolina v. Regina Michelle Hunter from the Sumter County Summary Court pursuant to 28 U.S.C. § 1455. (Compl., ECF No. 1 at 1-2.) She indicates the matter she seeks to remove involves an unspecified traffic violation. (Id. at 2.) She alleges that several rights secured by the constitution have been violated by the state summary court. (Id. at 2-3.) She also alleges the state summary court lacks jurisdiction for various reasons, and also that the judges in that court have violated various rules of ethics, oaths, and judicial canons. (Id.)

         By order issued January 22, 2018, the court informed Plaintiff that she failed to pay the filing fee or move to proceed in forma pauperis. (ECF No. 3.) The order warned Plaintiff that her failure to comply with the order within the time permitted would subject her case to dismissal for failure to prosecute and for failure to comply with an order of the court under Rule 41 of the Federal Rules of Civil Procedure. Plaintiff has not responded to the order and the time period to comply has passed.[2] (ECF No. 7.)

         II. Discussion

         A. Subject matter jurisdiction

         To the extent Plaintiff seeks to remove this matter from the Sumter County Summary Court, the court notes criminal defendants may only remove state criminal prosecutions to federal court in rare circumstances. See 28 U.S.C. § 1442 (criminal prosecutions against federal agencies and officers), § 1442(a) (criminal prosecution against members of the armed services), & § 1443 (denial of racial equality in state criminal prosecutions). Federal law requires:

A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

28 U.S.C. § 1455(a). A notice of removal must also include the grounds for such removal, and a failure to state grounds that exist at the time of the filing of the notice constitutes waiver of such grounds. 28 U.S.C. § 1455(b)(2).

         Plaintiff does not contend that her attempted removal of her state criminal prosecution falls under any of the permissible circumstances enumerated by law. Rather, Plaintiff asserts the court has jurisdiction over this matter because she alleges various constitutional violations, and violations of ethics rules and judicial canons. See generally Johnson v. Mississippi, 421, U.S. 213, 219 (1975) (“Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice [for removal under § 1443].”); State v. Ivory, 906 F.2d 999, 1002 (4th Cir. 1990) (“The ‘regulation of crime is pre-eminently a matter for the States, ' and there is a ‘strong judicial policy against federal interference with state criminal proceedings.' ”) (quoting Meas v. California, 489 U.S. 121 (1989)).

         Also, Plaintiff failed to file the necessary state court documents required by § 1455(a) and she also failed to demonstrate the matter was timely removed pursuant to § 1455(b)(1). Because Plaintiff fails to establish that the court has jurisdiction over this matter, the court finds the matter should be summarily remanded to the Sumter County Summary Court. See 28 U.S.C. § 1455(b)(4) (“The United States district court in which such notice is filed 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.”); 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, Civil Action No. 3:16cv128, 2016 WL 4507814, at *3 (E.D. Va. Aug. 26, 2016) (collecting cases).

         B. Failure to prosecute or comply with an order of this court

         Alternatively, the court finds this action should be dismissed for Plaintiff's failure to comply with an order of the court or prosecute her case. As indicated above, Plaintiff did not respond to the court's January 22 order and has failed to pay the filing fee or move to proceed in forma pauperis. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power, ' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). As well as inherent authority, a court may sua sponte dismiss a case for lack of prosecution under Federal Rule of Civil Procedure 41(b). Id. at 630. The United States Court of Appeals for the Fourth Circuit has held that a court should “ascertain (1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) ...


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