Shepherd v. Arkansas, State of et al

Filing 6

Order dismissing without prejudice Ms. Shepherd's 1 petition for removal and, to the extent necessary, remands her criminal action back to the District Court of Jefferson County, Arkansas. Accordingly, the Court denies as moot Ms. Shepherd's 2 Motion to proceed in forma pauperis. The Court denies all other pending motions as moot. Signed by Judge Kristine G. Baker on 08/12/2015. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
MIESHA BURRIS SHEPHERD
v.

PLAINTIFF

Case No. 4:15-cv-00151 KGB

STATE OF ARKANSAS and
CITY OF PINE BLUFF

DEFENDANTS
ORDER

Plaintiff Miesha Burris Shepherd petitions to remove a state court criminal action to this
Court under 28 U.S.C. § 1443 and requests leave to proceed in forma pauperis (Dkt. Nos. 1, 2).
For the following reasons, the Court denies Ms. Shepherd’s petition for removal; to the extent
necessary remands her criminal action back to the District Court of Jefferson County, Arkansas;
and denies as moot Ms. Shepherd’s motion for leave to proceed in forma pauperis (Dkt. No. 2).
The Court denies all other pending motions as moot.
Under 28 U.S.C. §1915(e)(2), “the court shall dismiss the [in forma pauperis] case at any
time if the court determines that . . . the action . . . is frivolous or malicious; [or] fails to state a
claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). In this case, Ms. Shepherd
petitions to remove a state prosecution against her from the District Court of Jefferson County,
Arkansas, to this Court under 28 U.S.C. § 1443.
Section 1443 provides for the removal by a defendant of any civil action or criminal
prosecution “[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; Neal v. Wilson, 920 F. Supp. 976,
984 (E.D. Ark. 1996) aff’d, 112 F.3d 351 (8th Cir. 1997). In Johnson v. Mississippi, 421 U.S.
213 (1975), the Supreme Court established a two part test for § 1443 removal petitions.

“First, it must appear that the right allegedly denied the removal petitioner arises under a
federal law ‘providing for specific civil rights stated in terms of racial equality.’” Johnson, 421
U.S. at 219 (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). A state court defendant’s
claim that “prosecution and conviction will violate rights under constitutional or statutory
provisions of general applicability or under statutes not protecting against racial discrimination”
is insufficient for removal. Id.; Neal, 920 F. Supp. at 984 (“The Supreme Court has held that the
phrase ‘any law providing for equal rights’ must be construed to mean any law providing for
specific civil rights stated in terms of racial equality.”). “Removal under § 1443(1) is limited to
the rare situations in which a defendant cannot enforce the right to racial equality in state courts.”
N. Carolina v. Mitchell, No. 5:14-CR-156-D, 2014 WL 7399121, at *2 (E.D.N.C. Sept. 9, 2014).
Second, it must appear “that the removal petitioner is ‘denied or cannot enforce’ the
specified federal rights ‘in the courts of [the] State.’” Id. (quoting 28 U.S.C. § 1443(1) (1988));
see also People of State of Colo. v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990). To claim that she
is being denied or cannot enforce her equal rights in the courts of Arkansas, Ms. Shepherd must
allege the following:
“that there is a basis for a firm prediction that such rights [of racial equality] will
be denied in state court or that the pendency of the prosecution without more, is a
deprivation of such a federally protected right. It is not enough to show that he
has a defense with more or less hope of its successful assertion in an impartial
tribunal; he must show that his federally secured right of racial equality is denied
by the pendency of the proceeding or by reasons of the operation of a pervasive
and explicit state or federal law that those rights will inevitably be denied by . . .
bringing the defendant to trial in the state court.”
Neal, 920 F. Supp. at 984 (quoting State of South Carolina v. Moore, 447 F.2d 1067, 1070 (4th
Cir. 1971)).

“This particular aspect of section 1443 ‘normally requires that the denial be

manifest in a formal expression of state law, such as a state legislative or constitutional

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provision.’” Akhlaghi v. Berry, 294 F. Supp. 2d 1238, 1242 (D. Kan. 2003) (quoting Johnson,
421 U.S. at 219).
In this case, Ms. Shepherd alleges that she “was in the Dub Brassell Detention Center the
[sic] Jefferson County Jail illegally locked her up on false charges she [sic] is a victim of Assault
and Battery and Aggravated Robbery and theft of property” (Dkt. No. 1, at 2). Ms. Shepherd
also states that she “was stabbed by her estranged friend” and that she “is a victim of Aggravated
Robbery by her estranged friend that stole her purse with the her [sic] checkbook in the purse
and wrote checks that cause Miesha Burris, Shepherd to be illegally charged for hot checks in the
District Court of Jefferson Court Division” (Id.). Ms. Shepherd maintains that she “is a victim of
economics assassination, arbitrary discrimination” and vaguely references certain alleged rights
under the United States Constitution, including the right to counsel under the Sixth Amendment
and due process and equal protection of the law under the Fourteenth Amendment (Id. at 2-3).
Ms. Shepherd has failed to allege that she has been denied or cannot enforce the right to
racial equality in the Arkansas state courts. See Neal, 920 F. Supp. at 984-85 (“Allegations that
an individual is being denied equal protection by discriminatory prosecution of professional
misconduct and assorted allegations of denial of due process have been held insufficient to
support removal under [§ 1443]. . . . [A]llegations regarding the denial of constitutional rights
generally are clearly insufficient to support removal under § 1443.”). Even if Ms. Shepherd
alleges a cause of action under a statute securing racial equality, she has not alleged facts
indicating that she would be unable to exercise or enforce her rights under such statutes in state
court. See id. Accordingly, Ms. Shepherd fails to allege facts that support removal of her
criminal prosecution to this Court under § 1443. Further, to the extent that Ms. Shepherd
attempts to remove her state court criminal action to this Court under 28 U.S.C § 1446, the Court

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denies such petition for removal as § 1446 concerns the “procedure for removal of civil actions”
and is not a proper basis for removal of Ms. Shepherd’s case. 28 U.S.C. § 1446.
Therefore, upon a screening of Ms. Shepherd’s action pursuant to 28 U.S.C. § 1915, and
for the foregoing reasons, the Court dismisses without prejudice Ms. Shepherd’s petition for
removal (Dkt. No. 1) and, to the extent necessary, remands her criminal action back to the
District Court of Jefferson County, Arkansas. Accordingly, the Court denies as moot Ms.
Shepherd’s motion to proceed in forma pauperis (Dkt. No. 2). The Court denies all other
pending motions as moot.
SO ORDERED this 12th day of August, 2015.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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