State of New Jersey v. Bruce Aristeo

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, JORDAN and KRAUSE, Circuit Judges. Total Pages: 4. BLD-272

Case: 15-1096

Document: 003112021810

Page: 1

Date Filed: 07/20/2015

BLD-272
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1096
___________
STATE OF NEW JERSEY
v.
BRUCE ARISTEO,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civ. No. 1-14-cv-07911)
District Judge: Honorable Renée M. Bumb
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect or
Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
July 16, 2015
Before: AMBRO, JORDAN and KRAUSE, Circuit Judges
(Opinion filed: July 20, 2015)
_________
OPINION*
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.

Case: 15-1096

Document: 003112021810

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Date Filed: 07/20/2015

Bruce Aristeo, proceeding pro se, appeals from an order of the District Court
remanding his case to a New Jersey state court. We will summarily affirm.
Aristeo filed a notice in the District Court seeking to remove, pursuant to 28
U.S.C. §§ 1331 and 1443, a criminal action pending against him in the Superior Court of
New Jersey, Camden County. He also sought other relief, including a stay of the criminal
proceedings and dismissal of the indictment. The District Court remanded the matter to
state court, concluding that Aristeo had made no allegations that would permit removal
under the statutes pertaining to removal of criminal prosecutions, i.e., 28 U.S.C. §§ 1442,
1442a, and 1443. This appeal followed.
Cases removed pursuant to § 1442 or § 1443 are excepted from the general rule
that “[a]n order remanding a case to the State court from which it was removed is not
reviewable on appeal.” 28 U.S.C. § 1447(d). We thus have jurisdiction to determine
whether remand was proper to the extent removal was sought under § 1443, which is the
only issue presented by this appeal.1 See Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir.
1997). We exercise plenary review over the underlying basis for remand to the extent it
involves a legal question. See Lazorko v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000).
At issue is the first subsection of § 1443, which authorizes removal of a state law

1

Aristeo did not purport to remove this action under § 1442, and he has not
challenged the District Court’s conclusion that § 1442 is not applicable in his case (as it
plainly is not). Insofar as he argues that 28 U.S.C. § 2283 supports removal, we note that
the District Court did not address that issue in its remand order, most likely because
§ 2283 does not concern removal, but rather stays of state court proceedings.
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action “[a]gainst any person who is denied or cannot enforce in the courts of such State a
right under any law providing for the equal civil rights of citizens of the United States, or
of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1).2 For this provision
to apply, “a state court defendant must demonstrate both (1) that he is being deprived of
rights guaranteed by a federal law ‘providing for . . . equal civil rights’; and (2) that he is
‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047
(quoting Georgia v. Rachel, 384 U.S. 780, 788 (1966)). Under the first prong of the test,
the civil rights at issue must involve matters of racial equality. Id. Under the second
prong, removal is proper only where a defendant’s federal civil rights “‘will inevitably be
denied by the very act of bringing the defendant to trial in the state court.’” Id. at 1049
(quoting Greenwood, 384 U.S. at 828).
As the District Court properly determined, Aristeo has shown no basis for removal
under § 1443. He did not allege that his civil rights were being denied on the basis of
race, but rather that his prosecution for stalking via website postings violated his First
Amendment right to freedom of speech. Aristeo’s ancillary allegations that the state
statute is void for vagueness and that his property was seized without a warrant similarly
do not implicate a deprivation of civil rights based on race. On appeal, Aristeo concedes
“the lack of racial discrimination facts in this case.” Instead, he argues that the plain

2

Aristeo has not alleged in the District Court, or argued on appeal, anything that
might permit removal under the second subsection of § 1443, which generally concerns
the execution of certain duties by federal officers. See 28 U.S.C. § 1443(2); Greenwood
3

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language of § 1443 makes it applicable regardless of race and that the United States
Supreme Court incorrectly interpreted the statute to require a race-based deprivation of
civil rights in Georgia v. Rachel. This argument, which asks us to ignore almost 50-yearold Supreme Court precedent, is simply frivolous.
Accordingly, we will summarily affirm the District Court’s order. See 3d Cir.
L.A.R. 27.4; I.O.P. 10.6. In light of this disposition, we deny Aristeo’s request for an “en
banc determination.”

v. Peacock, 384 U.S. 808, 824 (1966).
4