State of Alabama v. Lucy

Filing 2

Order re: 1 Notice of Removal filed by William N. Lucy, REMANDING this action to the Circuit Court of Mobile County, AL as set out. Signed by Judge Kristi K. DuBose on 9/22/2014. (copy to William Lucy) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STATE OF ALABAMA,
Plaintiff,

)
)
)

v.

)

Civil Action No. 14-00434-KD-N

)
WILLIAM N. LUCY,

)

Defendant.

)
ORDER

This action is before the Court on the notice of removal (Doc. 1) filed pro se by
Defendant William N. Lucy (“Lucy”). Lucy seeks to remove to this Court a pending criminal
action against him in the Circuit Court of Mobile County, Alabama, Case No. CC-2013-005332.1
Upon consideration and for the reasons set forth herein, this action is REMANDED to the
Circuit Court of Mobile County, Alabama.

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Lucy has not paid a filing fee in connection with his notice of removal. Generally, in civil
actions, “[b]ecause removal to federal court constitutes an initial case filing, the removing party
is required to pay the [statutory ]filing fee.” Hagner v. Seminole Cnty., No. 607CV-1464-ORL31AUM, 2007 WL 3407387, at *3 (M.D. Fla. Nov. 13, 2007) (citing 28 U.S.C. § 1914(a) (“The
clerk of each district court shall require the parties instituting any civil action, suit or proceeding
in such court, whether by original process, removal or otherwise, to pay a filing fee of $350…”).
However, “[f]iling fees are not to be collected in connection with criminal removal petitions.”
Lefton v. City of Hattiesburg, Miss., 333 F.2d 280, 285 (5th Cir. 1964). See also Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent in
the Eleventh Circuit all decisions issued by the Fifth Circuit before October 1, 1981); Georgia v.
Castaneira, No. 1:11-CV-3054-TWT-JFK, 2011 WL 5514000, at n.2 (N.D. Ga. Oct. 11, 2011)
(“Petitioner has not paid a filing fee. Because filing fees are not required for removal of a
criminal action under [28 U.S.C. ]§ 1443, it is not necessary to grant Petitioner in forma pauperis
status in this action.” (citing Lefton, 333 F.2d at 285)), report and recommendation adopted, No.
1:11-CV-3054-TWT, 2011 WL 5514011 (N.D. Ga. Nov. 9, 2011).

Lucy cites 28 U.S.C. § 1446(b) as the basis for removal. However, § 1446(b) applies to
removal of civil cases. Moreover, as Lucy does not claim he is a federal officer or member of
the armed forces, he cannot remove his criminal action under 28 U.S.C. §§ 1442 or 1442a.
Title 28 U.S.C. § 1455, effective December 7, 2011, governs removal of state criminal
actions and sets forth in relevant part as follows:
(a) Notice of removal. 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.
(b) Requirements. (1) A notice of removal of a criminal prosecution shall be filed
not later than 30 days after the arraignment in the State court, or at any time
before trial, whichever is earlier, except that for good cause shown the United
States district court may enter an order granting the defendant or defendants leave
to file the notice at a later time.
28 U.S.C. § 1455.
Lucy has not complied with § 1455(a) because he did not provide the Court “with a copy
of all process, pleadings, and orders served upon” him in the criminal action. Also, he has not
shown compliance with the procedural requirements listed in § 1455(b)(1) because he did not
allege or establish that his notice of removal was timely filed or allege good cause for an
untimely notice.
The statute also provides that when a notice of removal of a criminal action is filed, the
District Court “shall examine the notice promptly” and “[i]f it clearly appears on the face of the
notice and any exhibits annexed thereto that removal should not be permitted, the court shall

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make an order for summary remand.” 28 U.S.C. § 1455(b)(4). In that regard, 28 U.S.C. § 1443
permits removal of the following “criminal prosecutions[] commenced in a State court”:
(1) Against 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;
(2) For any act under color of authority derived from any law providing for equal
rights, or for refusing to do any act on the ground that it would be inconsistent
with such law.
28 U.S.C. § 1443.
The Supreme Court has held that a notice of removal under 28 U.S.C. § 1443(1)
must satisfy a two-pronged test. See Johnson v. Miss., 421 U.S. 213, 219, 95 S.
Ct. 1591, 44 L.Ed.2d 121 (1975) (citing Georgia v. Rachel, 384 U.S. 780, 86 S.
Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood v. Peacock, 384 U.S.
808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966)). First, it must appear that the right
allegedly denied the removing defendant arises under a federal law “providing for
specific civil rights stated in terms of racial equality.” Johnson, 421 U.S. at 219
(emphasis added) (citation internal quotation omitted). 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. Id. Similarly, assertions that a removing defendant will be denied
due process of law because the criminal law under which he is being prosecuted is
allegedly vague or that the prosecution is assertedly a sham, corrupt, or without
evidentiary basis does not, standing alone, satisfy the requirements of Section
1443(1). Id. (citation omitted).
Second, it must appear, in accordance with the provisions of Section 1443(1), that
the removing defendant is “denied or cannot enforce” the specified federal rights
“in the courts of (the) State.” Johnson, 421 U.S. at 219. This provision normally
requires that the “denial be manifest in a formal expression of state law,” such as
a state legislative or constitutional provision, “rather than a denial first made
manifest in the trial of the case.” Id. (citation and internal quotation omitted).
Under Section 1443(1),
the vindication of the defendant's federal rights is left to the state courts
except in the rare situations where it can be clearly predicted by reason of
the operation of a pervasive and explicit state or federal law that those
rights will inevitably be denied by the very act of bringing the defendant
to trial in the state court.
City of Greenwood, 384 U.S. at 828. Failure to satisfy either prong of the two-

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pronged test is fatal to removal. Williams v. State of Miss., 608 F.2d 1021, 1022
(5th Cir. 1979); Provident Funding Associates, LP v. Obande, 414 Fed. App'x 236
(11th Cir. 2011).
Moore-El v. Town of Summerdale, Civil Action No. 13-00508-KD-B, 2013 WL 6185669, at *2
(S.D. Ala. Nov. 26, 2013) (footnote omitted).
In support of removal, Lucy alleges that “this case involves ‘due process of law’ ” and
that he doesn’t “feel that he can get a fair trial in state court because the plaintiff (State of
Alabama) in this case is the defendant in a civil case brought by” Lucy in federal court and
because “the judge in this instant case is a defendant in a civil case brought by this defendant
now pending” in this Court “for false imprisonment[.]”2 (Doc. 1 at 1-2). Lucy also claims that
his criminal action “stems from a civil action filed by [him] against the Mobile County Circuit
Clerk.” (Id. at 2). Arguably, Lucy has made a “short and plain statement” of his grounds for
removal. 28 U.S.C. § 1455(a).
However, Lucy’s notice of removal does not satisfy either prong of the Johnson test for
removal under § 1443(1). Nowhere in the notice does he claim that he is being deprived of a
specific civil right stated in terms of racial equality. On the contrary, his claim that he will be
denied “due process” mentions no racial implications at all and states only a broad constitutional
guarantee of general applicability. Regarding the second prong of the Johnson test, “[a]s the
Supreme Court has made clear, charges that the defendant is unable to obtain a fair trial in a
particular state court are insufficient to support removal under § 1443(1).
As the Eleventh Circuit has explained, under the Supreme Court's interpretation
of § 1443(1), it is not enough to allege that a defendant's civil rights have been
corruptly denied in advance of trial, that the charges are false, or even that the
defendant is unable to obtain a fair trial in a particular state court. Alabama v.
Conley, 245 F.3d 1292, 1297 (11th Cir.2001). Rather, the vindication of a
defendant's federal rights is left to the state courts, unless it can be clearly
S.D. Ala. Case No. 1:14-cv-185-CG-B (in which Mobile County Circuit Judge Joseph
Johnston is a defendant).
2

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predicted that the very act of bringing a defendant to trial will deny those rights.
Id. Such a showing can be made if the civil rights act pursuant to which the
defendant has filed a notice of removal immunizes the defendant from the
prosecution at issue. See id., 245 F.3d at 1298.
Moore-El, 2013 WL 6185669, at *3.
“The allegedly corrupt or otherwise improper motives of an individual state court judge
do not show that [Lucy] will be unable…to raise any due process claims he may have in either
the state court action or a separate action in federal court.” Alabama v. Conley, 245 F.3d 1292,
1298-99 (11th Cir. 2001). Moreover, “[i]n the instant case, there is no basis for finding that
[Lucy] is immunized from the criminal charge that the [State of Alabama] has brought against
him. Therefore, [Lucy] has failed to satisfy the second prong of the removal test for § 1443(1).”
Moore-El, 2013 WL 6185669, at *3. Indeed, Lucy has not even cited a particular civil rights act
as a basis for removal.
§ 1443(2)…provides removal “[f]or any act under color of authority derived from
any law providing for equal rights, or for refusing to do any act on the ground that
it would be inconsistent with such law.” The first clause under § 1443(2), dealing
with “any act under color of authority,” confers the right to remove only upon
“federal officers or agents and those authorized to act with or for them in
affirmatively executing duties under any federal law providing for equal civil
rights.” Taylor v. Phillips, 442 Fed. App'x 441, 443 (11th Cir. 2011) (citing City
of Greenwood, 384 U.S. at 824. The second clause under § 1443(2), dealing with
“refusing to do any act on the ground that it would be inconsistent with such law,”
allows the right to remove only to state officers. City of Greenwood, 384 U.S. at
824. (citations omitted).
Id. Lucy “has not shown that he is a state or federal officer, or working for one. Thus, he could
not properly remove the case under § 1443(2).” Id. See also Bell v. Taylor, 509 F.2d 808, 809
n.1 (5th Cir. 1975) (“28 U.S.C.A. s 1443(2) is inapplicable because it covers only federal officers
and those acting under them.”).
[T]he rules of notice pleading apply with as much vigor to petitions for removal
as they do to other pleadings, which, according to Rule 8(f) of the Federal Rules

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of Civil Procedure, ‘shall be so construed as to do substantial justice.’[3] The
statute requires that the petition for removal contain ‘a short and plain statement
of the facts which entitle him or them to removal.’ 28 U.S.C.A. 1446.[4] The
Supreme Court has held that the removal must be effected by the filing of ‘a
verified petition setting forth, agreeably to the ordinary rules of pleading, the
particular facts, not already appearing, out of which the right arises.’ Chesapeake
& Ohio Railway Co. v. Cockrell, 1914, 232 U.S. 146, 151, 34 S. Ct. 278, 280, 58
L. Ed. 544.[5] It is plain, therefore, that the petition is to be construed ‘agreeably
to the ordinary Rules of pleading’ since in fact the petition for removal is the basis
for the federal court's jurisdiction and it is a pleading of the facts necessary to vest
jurisdiction in the federal court.
Rachel v. State of Georgia, 342 F.2d 336, 340 (5th Cir. 1965), aff’d, 384 U.S. 780 (1966).
Accord Achtenberg v. State of Mississippi, 393 F.2d 468, 470 (5th Cir. 1968) (“When the Rachel
case was before it, this Court especially considered the application of the liberal rules of pleading
as provided for under the Federal Rules of Civil Procedure to the statute relating to Removal
Petitions. We there held that the liberal rule of Notice-Pleading is applicable to petitions for
removal.”).
“The test of removability is comparable to the test for the existence of federal
jurisdiction- the well pleaded petition of the petitioner. This test of removability is governed, in
the first instance, by the content of the petition...” Walker v. State of Ga., 417 F.2d 5, 8 (5th Cir.
1969).

Lucy has failed to plead sufficient facts to indicate that this Court has removal

jurisdiction under § 1443 over his state criminal action. “If at any time before final judgment it
3

This rule is now embodied in Federal Rule of Civil Procedure 8(e) (“Pleadings must be
construed so as to do justice.”).
4

The Circuit Court addressed the removal of a criminal action and entered its decision before
the enactment of 28 U.S.C. § 1455. However, § 1455(a), as § 1446(a), requires that the removal
petition contain a short and plain statement of the grounds for removal of the criminal action.
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“The requirement that a verified petition be part of the removal papers was eliminated and in its
place [§ 1446](a) now requires a notice of removal signed pursuant to Rule 11[of the Federal
Rules of Civil Procedure].” David D. Siegle, Commentary on 1988 Revision of Section 1446
(West) (noted in 28 U.S.C.A. § 1446 (West)).

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appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c). It is true that the general rules of notice pleading apply to notices of removal
in this Circuit, and “[w]hen it appears that a pro se plaintiff's complaint, if more carefully
drafted, might state a claim, the district court should give the pro se plaintiff an opportunity to
amend his complaint instead of dismissing it with prejudice.” Jemison v. Mitchell, 380 F. App'x
904, 907 (11th Cir. 2010) (citing Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in
part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en
banc)6). However, upon consideration of the notice of removal, the undersigned is of the opinion
that any amendment of the notice to allow for removal of Lucy’s state criminal action under §
1443 would be futile.
Accordingly, this action is REMANDED to the Circuit Court of Mobile County,
Alabama, pursuant to 28 U.S.C. § 1447(c).
DONE this the 22nd day of September 2014.

s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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“Although Wagner overruled Bank as to counseled litigants, it specifically stated that it did not
address pro se litigants. Thus, the Bank rule remains applicable to pro se litigants when their
complaints are dismissed with prejudice.” Jemison, 380 F. App'x at 907 n.3 (citing Wagner, 314
F.3d at 542 n.1) (internal citation omitted).
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