Mexico Construction et al v. Thompson

Filing 21

ORDER granting 8 Motion to Remand to State Court. Signed by Judge Alvin W. Thompson on 7/22/2011. (Rasch, E)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
MEXICO CONSTRUCTION and
:
MARTIN MENDOZA,
:
Plaintiffs,
:
:
v.
:
:
MELVIN THOMPSON
:
Defendant.
:
:
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Civil No. 3:11cv00224(AWT)

ORDER REMANDING CASE
Defendant Thompson removed this case under 42 U.S.C. § 1443,
alleging a violation of his rights “pursuant to the U.S.
Constitution at amendments 1, 5, 7, 14, 42 U.S.C. at § 1983,
§ 1985(3) and § 1986.”

(Notice of Removal, 1 (Doc. No. 1).)1

Title 28 U.S.C. § 1443 provides:
Any of the following civil actions or criminal
prosecutions, commenced in a State court may
be removed by the defendant to the district
court of the United States for the district
and division embracing the place wherein it is
pending:

1

Thompson’s constitutional claims are set forth in a
separate case before this court: Thompson v. Susan C. Reeve et
al.. See Compl., Thompson v. Reeve, Civ. No. 3:11-cv-0031 (D.
Conn. 2011). Thompson argues that the violations of his
constitutional rights he alleges in Thompson v. Reeve arise,
inter alia, out of the facts of the present case, and thus he
seeks to rely on the allegations in Reeve to show that removal
was appropriate. For the purposes of this motion, the court has
considered both the allegations in Reeve and his contentions in
the present case.
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(1) Against any person who is denied or cannot
enforce in the court 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.
While Thompson does not specify under which subsection of the
statute he is proceeding, he argues that removal in this case
fits squarely within an exception recognized in State of Georgia
v. Rachel, a case which deals solely with removal under
§ 1443(1).

See 384 U.S. 780 (1966).

The Supreme Court has established that “a removal petition
under 28 U.S.C. § 1443(1) must satisfy a two-pronged test.”2
Johnson v. Mississippi, 421 U.S. 213, 219 (1975).

“First, it

must appear that the right allegedly denied the removal
petitioner arises under a federal law ‘providing specific civil
rights stated in terms of racial equality.’” Id. (citing Rachel,
388 U.S. at 792).

“Thus, . . . broad contentions under the First

Amendment and the Due Process Clause of the Fourteenth Amendment
cannot support a valid claim for removal under § 1443, because
the guarantees of those clauses are phrased in terms of general

2

Section 1446, which sets forth procedures for removal, was
amended in 1991 to, inter alia, replace references to filing a
“petition for” removal with filing “notice of” removal. Pub. L.
No. 102-198, § 10, 105 Stat. 1623, 1626 (1991).
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application available to all person or citizens . . . .”

Rachel,

384 U.S. at 792.
“Second, it must appear, in accordance with the provisions
of § 1443(1), that the removal petitioner 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,” Rachel, 384 U.S. at 803, such as a state legislative
or constitutional provision, “rather than a denial first made
manifest in the trial of the case.”

Id. at 799.

As to the first part of the analysis, while Thompson has
identified specific rights he believes were violated by the state
proceedings in this case, he has not identified any “specific
civil rights stated in terms of racial equality.”
U.S. at 792.

Rachel, 384

Thompson alleges violations of his First, Fifth,

Seventh, and Fourteenth Amendment rights.

However, none of these

rights speak in terms of racial equality.

Indeed, the

respondents in Rachel themselves made “broad contentions under
the First Amendment and the Due Process Clause” which the Court
found “cannot support a valid claim for removal under § 1443
because the guarantees of those clauses are phrased in terms of
general application available to all persons or citizens, rather
than in the specific language of racial equality that § 1443
demands.”

Id.

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Moreover, even if Thompson were proceeding under the equal
protection clause of the Fourteenth Amendment, the Second Circuit
has observed that “not every violation of the equal protection
clause will justify removal, but only those violations involving
discrimination based on race.”

Chestnut v. New York, 370 F.2d 1,

3-4 (2d Cir. 1966) (quoting Peacock v. City of Greenwood, Miss.,
347 F.2d 679, 682 (5th Cir. 1965) (internal quotation marks
omitted), rev’d on other grounds, 384 U.S. 808 (1966)).

Thompson

does not claim racial discrimination, but rather urges this court
to expand the interpretation of § 1443 to allow removal for
violations of civil rights beyond those protecting racial
equality.

However, such an interpretation would be contrary to

the legislative history, statutory interpretation, and binding
precedent guiding § 1443 analysis. See, e.g., Rachel, 384 U.S.
780 (discussing legislative and statutory history of § 1443);
City of Greenwood, Miss. v. Peacock, 384 U.S. 806 (1966)).

Thus,

the defendant fails to satisfy the requirements with respect to
the first part of the § 1443(1) analysis.
The second part of the analysis requires a showing that the
defendant was “denied or cannot enforce” the specified federal
rights “in the court of [the] State.”

42 U.S.C. § 1443(1).

Courts apply the Strauder-Rives doctrine for purposes of this
analysis.

See Rachel, 384 U.S. at 786 (discussing the doctrine

which evolved from Strauder v. West Virginia, 100 U.S. 303

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(1879), and Commonwealth of Virginia v. Rives, 100 U.S. 313
(1879)).

Under that doctrine, “[r]emoval is warranted only if it

can be predicted by reference to a law of general application
that a defendant will be denied or cannot enforce the specified
federal rights in the state courts.

A state statute authorizing

the denial affords an ample basis for such prediction.”
800.

Id. at

Thompson has identified no “formal expression of state law”

warranting removal here.

Id. at 803.

In Thompson v.Reeve, the state laws Thompson alleges the
defendants were acting pursuant to are Conn. Gen. Stat. §§ 52-143
(governing subpoenas), 52-148e (governing deposition subpoenas),
and 52-205 (governing joinder).

Nothing on the face of these

statutes suggests that their enforcement will deny Thompson
specified federal rights in the state courts.

While Thompson

claims that these laws were applied in a discriminatory manner
(albeit not because of his race), “[i]t [is] not sufficient
merely to allege that a statute, fair on its face, [is] being
administered in a discriminatory manner.”
5.

Chestnut, 370 F.2d at

Thus, Thompson fails to satisfy the requirements with respect

to the second part of § 1443(1) analysis as well.
Finally, Thompson points out that Rachel acknowledges that
“removal might be justified, even in the absence of a
discriminatory state enactment, if an equivalent basis could be
shown for an equally firm prediction that the defendant would be

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‘denied or cannot enforce’ the specified federal rights in the
state court.”

384 U.S. at 804.

In Rachel, the Court noted “the

narrow circumstances of [the] case.”
circumstances” are present here.

Id.

No comparable “narrow

Rather, Thompson seeks to use

this exception to provide as a basis for removal “all other
circumstances that are civil in nature, that do not concern the
1964 Civil Rights Act and are not race driven.”

(Def.’s Mem.

Supp. Obj. Pl.’s Mot. Remand, 10 (Doc. No. 15-1).)

Such an

argument is not only inconsistent with the holding and analysis
in Rachel, but would create an exception which swallows the rule.
The defendant therefore has failed to justify removal to
this court pursuant to 42 U.S.C. § 1443(1).

The plaintiffs’

Expedited Motion to Remand (Doc. No. 8) is hereby GRANTED.
This case is hereby REMANDED to Connecticut Superior Court, the
Complex Litigation Docket at Waterbury.
It is so ordered.
Dated this 22nd day of July, 2011, at Hartford, Connecticut.

/s/ AWT
Alvin W. Thompson
United States District Judge

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