Cook v. Becker

Filing 7

ORDER OF REMAND NOW THEREFORE IT IS HEREBY ORDERED, that the Petition for Removal (docket no. 1 ) is DENIED, and that this action be remanded to the Third Judicial District of the State of Idaho, Adams County. IT IS FURTHER ORDERED, that the motion for habeas corpus (docket no. 4 ) and the motion to quash warrant (docket no. 5 ) are DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
NEILUS COOK,
Plaintiff,
v.

Case No. 1:14-CV-132-BLW
ORDER OF REMAND

KURT G. BECKER,
Defendant.

INTRODUCTION
The Court has before it a Petition for Removal filed by pro se plaintiff Cook. The
United States Magistrate Judge has recommended that the Petition be denied and the case
be remanded to the state court. The Court agrees and will order this case remanded for
the reasons set forth below.
ANALYSIS
Citing 28 U.S.C. § 1443, Cook’s petition purports to remove a criminal proceeding
from the Third Judicial District of the State of Idaho to this Court. In support of his
petition, Cook claims an agent of the Idaho Department of Fish and Game, acting without
a warrant, seized some $2,000 worth of elk meat from Cook’s residence.
Following the allegedly unlawful seizure, the Adams County Prosecutor filed a
criminal case against Cook. A magistrate judge in Idaho’s Third Judicial District, which
includes Adams County, overruled all of Cook’s objections, arraigned him, and
scheduled a trial.
Order of Remand – page 1

Cook seeks to remove the case because, he argues, it implicates the “fruit of the
poisonous tree” and other, unspecified constitutional doctrines. The governing statute, 28
U.S.C. § 1443(1), entitles Cook to removal only if he shows (1) that the right upon which
he relies is “a right under any law providing for . . . equal civil rights” stated in terms of
racial equality; and (2) that he is “denied or cannot enforce” that right in the state court,
because of a specific state statute or state constitutional provision mandating that it be
ignored. City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 826 (1966).1 He has failed
to satisfy those requirements. There is nothing in Cook’s Petition for Removal alleging
that he is being treated unequally due to his race or that a state statute or constitutional
provision is preventing him from receiving equal treatment due to his race. Accordingly,
this matter will be remanded to state court, and the pending motions to quash a warrant
and for habeas corpus will be denied.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the Petition for Removal
(docket no. 1) is DENIED, and that this action be remanded to the Third Judicial District
of the State of Idaho, Adams County.
IT IS FURTHER ORDERED, that the Clerk take all steps necessary to effectuate
that remand.
1

The other subsection – § 1443(2) – may be used only by federal officers and
persons assisting them in performing their duties under federal civil rights laws, and thus
is not available to Cook. See City of Greenwood, supra.

Order of Remand – page 2

IT IS FURTHER ORDERED, that the motion for habeas corpus (docket no. 4)
and the motion to quash warrant (docket no. 5) are DENIED.

DATED: July 28, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Order of Remand – page 3