City and County of Denver Court, The v. Lyons
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 10/5/2017. I respectfully RECOMMEND that Adams County No. 2016T4597 and City and County of Denver No. 17M02570 be summarily REMANDED. A copy of this Recommendation shall be sent to the following: Craig Lyons P.O. Box 625 Brighton, CO 80601 (nywlc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02083-NYW
CITY & COUNTY OF DENVER COURT, THE,
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court pursuant to the Order to Show Cause issued
September 8, 2017 [#4], and the Order of Reference dated October 5, 2017 [#10]. This case was
directly assigned to the undersigned Magistrate Judge pursuant to D.C.COLO.LCivR 40.1(c).
Though Mr. Lyons filed a Consent Form to the Jurisdiction of Magistrate Judge on September
21, 2017 [#6], a review of the Consent Form indicated that both Parties had not consented to the
jurisdiction of a magistrate judge, and no counsel has entered her or his appearance on behalf of
the City and County of Denver. Indeed, it is not clear from the docket whether Mr. Lyons has
served the City and County of Denver with the Notice of Removal. Without consent of all
Parties, this court lacked statutory authority to proceed as the presiding judicial officer. 28
U.S.C. § 636(c). Accordingly, this court ordered that the case be drawn to an Article III judge.
Mr. Lyons filed his Notice of Removal on August 30, 2017. [#1]. Defendant seeks to
remove two underlying state court actions, both involving traffic infractions and one arrest:
Adams County No. 2016T4597 and City and County of Denver No. 17M02570. [Id. at 3].
Though not entirely clear, Defendant also seeks to invoke this court’s jurisdiction because he
asserts counterclaims against Adams County (though not listed on the docket) and the City and
County of Denver, and lists several federal statutes and case law, including 18 U.S.C. § 1951 for
interference with commerce by threats or violence; “28 U.S.C. §§ 1981-1985 Civil action for
deprivation of rights” and “The Federal Codes thus far listed”; and the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. [Id. at 7–9]. Mr. Lyons asserts
that removal is proper under 28 U.S.C. § 1455.
On September 8, 2017, the undersigned Magistrate Judge issued an Order to Show Cause
directing Mr. Lyons to show cause in writing on or before September 29, 2017, why this court
should not have the case redrawn to a District Judge and recommend dismissal and/or remand of
this action. See [#4]. Specifically, this court noted that even construing Mr. Lyons’s pro se
pleadings liberally, 1 it was unclear what federal causes of action he was pursuing in this matter,
or that he could remove state criminal proceedings and then assert federal civil counterclaims
against the municipality plaintiffs. [Id.]. Further, it was unclear whether Mr. Lyons’s Notice of
Removal was timely under 28 U.S.C. § 1455(b)(1). [Id.].
Because Plaintiff proceeds pro se, this court liberally construes his pleadings. Haines v.
Kerner, 404 U.S. 519, 520–21 (1972). However, the court cannot act as an advocate, even for a
pro se litigant. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover, the court
applies the same procedural rules and substantive law to Plaintiff as to a represented party. See
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir.2008); Dodson v. Bd. of Cty.
Comm'rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
On September 21, 2017, Mr. Lyons filed a signed Consent Form to the exercise of
jurisdiction by a Magistrate Judge, indicating his consent to the undersigned’s jurisdiction. [#6].
Mr. Lyons responded to the Order to Show Cause on September 28, 2017. [#7]. The court
considers his response below.
To start, Mr. Lyons concedes that he failed to remove the two underlying criminal
proceedings within thirty (30) days of his arraignment, but that he removed the actions before
any trial. See [#7 at 4]. He also requests that the court find good cause for an untimely removal
because he is “currently under coercive oppression from The County Agents.”
Notwithstanding Mr. Lyons’s timeliness arguments, the court concludes that removal of his
underlying traffic-related actions is inappropriate. Cf. LaFortune v. Krista, No. 12-CV-00971LTB, 2012 WL 1278041, at *1 (D. Colo. Apr. 16, 2012) (finding that Ms. Krista failed to allege
that she filed a timely Notice of Removal of her “traffic” case).
Under certain circumstances, “a defendant may remove a state criminal prosecution to
federal court[.]” Pledger v. Kansas, 686 F. App’x 593, 594 (10th Cir. 2017) (unpublished)
(citing 28 U.S.C. § 1443 (governing removal of civil-rights cases)). In doing so, 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.” 28 U.S.C. § 1455(b)(1). Courts
may remand a state criminal prosecution for (1) lack of subject matter jurisdiction or (2) “any
defect other than lack of subject matter jurisdiction.” Id. § 1447(d); Topeka Housing Auth. v.
Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005) (noting that remand for these two reasons are
insulated from appellate review). Any defect includes: “(1) noncompliance with the time limits
provided in § 1446(b); (2) noncompliance with the unanimity requirements in § 1446(b)(2)(A);
and (3) noncompliance with the forum-defendant rule in § 1441(b), which forbids removal when
a defendant is a citizen of the forum state.” 2 City of Albuquerque v. Soto Enterprises, Inc., 864
F.3d 1089, 1095 (10th Cir. 2017).
Here, Mr. Lyons’s Notice of Removal invokes only § 1455(b). 3 [#1 at 6]. As grounds
for removal, Mr. Lyons argues that the underlying traffic-related cases violate RICO because the
“County Agents” are directly and/or indirectly benefitting from the illegal racketeering activity
of forcing Colorado drivers to register their vehicles and obtain a license prior to operating their
vehicles. See [#7 at 5–7]. Mr. Lyons also invokes 42 U.S.C § 1983, and avers that such
requirements are inconsistent with federal law, and that they violate the Privileges and
Immunities clause of the Fourth Amendment, his Ninth Amendment rights to “ordinary travel,”
and his Fourteenth Amendment rights to liberty (i.e., “ordinary travel”). [Id. at 7–10]. None of
these proffered reasons are sufficient to satisfy the removal requirements.
First, as indicated in the Order to Show Cause, “counterclaims, even if they rely
exclusively on federal substantive law, do not qualify a case for federal-court cognizance.”
Vaden v. Discover Bank, 556 U.S. 49, 62 (2009). This is especially true in removal actions. See
Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181, 1183 (D. Colo. 2006). Consequently, it
is insufficient for Mr. Lyons to establish subject matter jurisdiction over this matter by alleging
that he seeks to raise federal law counterclaims against the various “County Agents.” In South
Carolina v. Tucker, the court reached a similar conclusion as to Ms. Tucker’s assertion that her
Mr. Lyons’ place of residence is unclear from his Notice of Removal, as it appears to suggest
that he is either a resident of Colorado or Iowa. [#1 at 1]. Because this court concludes it lacks
subject matter jurisdiction over the action, it does not address the forum-defendant exception to
removal under § 1441(b).
“However, that statute merely describes the procedural requirements for removing criminal
cases; it does not provide a substantive entitlement for removal.” Toas Cty. Magistrate Court v.
Currier, 625 F. App’x 358, 361 n.1 (10th Cir. 2015) (unpublished).
traffic tickets for failure to possess a vehicle registration card and for failure to maintain proof of
insurance presented a federal question. No. CV 3:17-1811-JFA-PJG, 2017 WL 3773137, at *1
(D.S.C. Aug. 11, 2017). The court concluded, “[Ms.] Tucker asserts the court has jurisdiction
over this matter because it involves a federal question, which is not sufficient to meet the
requirements of removal.” Id.
Moreover, Mr. Lyons fails to demonstrate that removal is warranted under §§ 1442,
1442a, or 1443. To start, removal under §§ 1442 and 1442a is inappropriate, as Mr. Lyons does
not allege any action against federal officers or agencies (§ 1442) or that he is a member of the
armed forces (§ 1442a). Nor does Mr. Lyons demonstrate that removal is appropriate under
§ 1443. Removal under § 1443 is appropriate if Mr. Lyons establishes (1) he was denied a
federal right that provides for the civil rights of racial equality, and (2) he cannot enforce those
rights in state court. See Johnson v. Mississippi, 421 U.S. 213, 219 (1975). Neither showing has
been made here. See, e.g., People of State of Colo. v. Glaser, 74 F.3d 1250 (Table), 1996 WL
21256, at *1 (10th Cir. Jan. 19, 1996) (affirming the district court’s remand of Mr. Glaser’s state
court traffic-ticket cases for failure to satisfy § 1443); United States v. McCaleb-Bey, No. 15-y00051-GPG, 2015 WL 4698833, at *1–2 (D. Colo. Aug. 7, 2015) (same). Rather, it appears that
Mr. Lyons contends that the traffic-related cases “will violate rights under constitutional or
statutory provisions of general applicability or under statutes not protecting against racial
discrimination,” which is insufficient. People of State of Colo. v. Lopez, 919 F.2d 131, 132 (10th
Cir. 1990) (affirming district court’s remand because Dr. Lopez asserted only that this rights to a
speedy trial and general constitutional rights had been violated, which was insufficient).
Accordingly, Mr. Lyons fails to satisfy the requirements for removal of his underlying traffic-
related cases. 4 See Bartnick v. City of Greenwood Vill., 61 F.3d 915 (Table), 1995 WL 427677,
at *1 (10th Cir. Jul. 20, 1995) (affirming remand of Ms. Bartnick’s two state court proceedings
arising out of traffic infractions).
Accordingly, I respectfully RECOMMEND that:
Adams County No. 2016T4597 and City and County of Denver No. 17M02570 be
summarily REMANDED. 5
IT IS ORDERED that:
A copy of this Recommendation and Order shall be sent to the following:
P.O. Box 625
To the extent Mr. Lyons wishes to pursue federal claims against the various “County Agents”
alluded to in his Notice of Removal, Mr. Lyons may do so by filing a complaint naming such
actors as Defendants, and complying with the service and pleading requirements of the Federal
Rules of Civil Procedure.
Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the District Judge of the Magistrate Judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
Brighton, CO 80601
DATED: October 4, 2017
BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge
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