Bellamy et al v. District Attorney Office et al

Filing 5

ORDER REMANDING CASE to Stanislaus County Superior Court, Denying 2 & 3 Motions to Proceed In Forma Pauperis as Moot, and Directing Clerk to Close Case signed by District Judge Dale A. Drozd on 8/29/2016. CASE CLOSED. Copy of remand order mailed to Stanislaus County Superior Court. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID LEROY BELLAMY, et al.,

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Plaintiff,

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No. 1:16-cv-01171-DAD-SKO

v.
DISTRICT ATTORNEY OFFICE, et al.,

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Defendants.

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ORDER REMANDING CASE TO
STANISLAUS COUNTY SUPERIOR
COURT, DENYING IN FORMA PAUPERIS
MOTIONS AS MOOT, AND DIRECTING
CLERK TO CLOSE CASE
(Doc. Nos. 2 and 3)

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On August 9, 2016, plaintiffs, who are proceeding pro se, filed a purported notice of

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removal in this court, naming as defendants Jeff Mangar and the Stanislaus County District

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Attorney’s Office. (Doc. No. 1.) Plaintiffs also filed motions to proceed in forma pauperis.

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(Doc. Nos. 2 and 3.) Upon further examination of the removal documents, it appears that the

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plaintiffs are actually criminal defendants in a pending criminal action proceeding in state court

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who are seeking to remove that state criminal action against them to federal court. While

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inventive, plaintiffs have not established grounds for removal and the court must remand this

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action.

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Background

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This is not the first action plaintiffs have filed here in connection with the state court

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criminal case against them. Plaintiffs filed a separate civil action under 42 U.S.C. § 1983 and
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other statutes against Stanislaus County District Attorney Jeff Mangar (also named as a defendant

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here) and two Stanislaus County Superior Court judges in this federal court. This earlier filed

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civil action was dismissed without leave to amend in August 2016. Woodruff v. Villalobos, Case

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No. 1:16-cv-1170-AWI-EPG, 2016 WL 4368004 (E. D. Cal. Aug. 15, 2016).

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As plaintiffs’ notice of removal indicates, the action for which removal is sought is a

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criminal action filed on July 22, 2016 in Stanislaus County Superior Court. (Doc. No. 1 at 2.)

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The notice indicates removal is sought because defendant Mangar is prosecuting plaintiffs in state

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court which, they contend, violates 28 C.F.R. § 1100, 22 C.F.R. § 92.18, the Racketeer Influenced

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and Corrupt Organizations (“RICO”) Act, and 18 U.S.C. §§ 241 and 242. (Doc. No. 1 at 3.) The

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notice of removal also lists the two Stanislaus County Superior Court judges named in the

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recently dismissed federal civil action as “defendants,” though they are not mentioned in the

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caption of the notice here. (Doc. No. 1 at 3.)

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Legal Standard
Federal courts are courts of limited subject matter jurisdiction. Kokkonen v. Guardian

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Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this

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limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting

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jurisdiction.” Id. (citations omitted). The general rule for removing actions from state court to

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federal court is set by statute:

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A defendant or defendants desiring to remove any civil action from
a State court shall file in the district court of the United States for
the district and division within which such action 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.

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28 U.S.C. § 1446 (emphasis added). The removal statute must be strictly construed against

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removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the

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right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).

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This means “the defendant always has the burden of establishing that removal is proper.” Id.

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Moreover, district courts have “a duty to establish subject matter jurisdiction over the removed

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action sua sponte, whether the parties raised the issue or not.” United Investors Life Ins. Co. v.
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Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). “If at any time before final judgment it

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appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28

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U.S.C. § 1447(c); cf. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks

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subject-matter jurisdiction, the court must dismiss the action.”).

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State criminal prosecution may only be removed to federal court under very specific and

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narrow circumstances. For instance, certain prosecutions against officers of the United States

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may be removed. See 28 U.S.C. § 1442(a); Arizona v. Manypenny, 451 U.S. 232, 241–43 (1981).

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Additionally, criminal prosecutions may be removed from state courts by persons who are denied

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equal civil rights under the law. 28 U.S.C. § 1443. Particularly, this requires the removing

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person to show first that they assert, “as a defense to the [state court] prosecution, rights that are

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given to them by explicit statutory enactment protecting equal racial civil rights.” Patel v. Del

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Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006) (quoting California v. Sandoval, 434 F.2d 635, 636

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(9th Cir. 1970)). Second, they “must assert that the state courts will not enforce that right, and

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that allegation must be supported by reference to a state statute or a constitutional provision that

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purports to command the state courts to ignore the federal rights.” Id.

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The removing parties here—styled as plaintiffs in the current pleadings, but appearing as

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defendants in the underlying state court criminal matter—suggest the action against them may be

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removed under either 28 U.S.C. §§ 1442, 1443, or 1446. However, plaintiffs here have made no

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showing that 28 U.S.C. §§ 1442 or 1443 apply to the criminal charges pending against them, and

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the general removal statute, 28 U.S.C. § 1446, is not applicable to criminal matters. As such,

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removal is improper. Obviously, this federal court has no subject matter jurisdiction over the

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state court criminal action.

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Conclusion

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For the reasons set forth above:

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This matter is remanded to Stanislaus County Superior Court for all further proceedings;

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2.

Plaintiffs’ motions to proceed in forma pauperis submitted by plaintiffs Bellamy and

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Woodruff (Doc. Nos. 2 and 3) are denied as moot; and

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3.

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IT IS SO ORDERED.

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Dated:

The Clerk of the Court is directed to close the case.

August 29, 2016
UNITED STATES DISTRICT JUDGE

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