The People of the State of Illinois v. Sadder-Bey

Filing 9

MEMORANDUM Opinion and Order. Signed by the Honorable Thomas M. Durkin on 7/13/2017. Mailed notice. (sxb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF,
vs.
CORDARO DEANDRE SADDER-BEY,
DEFENDANT.
_________________________________________

)
)
)
)
)
)
)
)
)
)

No. 17-cv-4999
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Notice of Removal filed by Defendant
Cordaro DeAndre Sadder-Bey on July 5, 2017. See R. 1. The Notice of Removal
seeks removal of three criminal complaints brought by the State of Illinois against
Sadder-Bey in the Circuit Court of Cook County (Complaints for Preliminary
Examination, 17-1011159). The criminal complaints allege that Sadder-Bey
committed the offenses of (1) aggravated battery against a police officer (he kicked
the victim about the left hand and leg) (R. 1 at 13 (Exhibit L)); (2) obstruction of
justice (he knowingly furnished a false or fictitious name, residence address, or date
of birth when under arrest/detained/or requested to provide information by a police
officer) (id. at 14 (Exhibit M)); and (3) display of false registration plate (laminated
red cardboard plate on rear of vehicle) (id. at 15 (Exhibit N)). The Court summarily
remands this case to state court because: (1) nothing in Sadder-Bey’s Notice of
Removal suggests that he is being denied equal protection based on his race, that he
is being subjected to any racial inequities, or that he cannot enforce his “equal civil

rights” in the state prosecution; and (2) Sadder-Bey’s Notice of Removal was not
timely filed.
DISCUSSION
Section 1455 of Title 28 of the United States Code provides that a defendant
“desiring to remove any criminal prosecution from a State court shall file in the
district court of the United States for the district and division within which such
prosecution 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.” 28 U.S.C. § 1455(a). A notice of
removal of a criminal prosecution must “be filed not later than 30 days after the
arraignment in the State court, or at any time before trial, whichever is earlier,
except that for good cause shown the United States district court may enter an
order granting the defendant or defendants leave to file the notice at a later time.”
Id., § 1455(b)(1). The notice of removal must include all grounds for such removal. A
failure to state grounds that exist at the time of the filing of the notice is a waiver of
such grounds, and a second notice may be filed only on grounds not existing at the
time of the original notice. Id., § 1455(b)(2). In addition, the district court in which
such notice is filed must examine the notice promptly, and if it clearly appears on
the face of the notice and any exhibits annexed thereto that removal should not be
permitted, the court must “make an order for summary remand.” Id., § 1455(b)(4).

2

The Court has examined the Notice of Removal and now enters this order
summarily remanding on both substantive and procedural grounds.
A.

GROUNDS FOR REMOVAL

The grounds stated in the Notice for the removal of the pending criminal
charges against Sadder-Bey do not provide a sufficient basis for removal of a state
criminal proceeding to federal court. The Notice cites to 28 U.S.C. § 1455 and 42
U.S.C. § 1983, and states that the grounds for removal include the following:
(1)
On or about January 17, 2017, Plaintiffs State of
Illinois/P.O. Morlock #15358 filed three complaints . . . in the Circuit
Court of Cook County, Illinois, County Department, Criminal Division.
Based on the complaints filed [in] the state court, [sic] these
complaints were never examined/verified by a Judge.
(2)
On June 7th, 8th, and 9th of the year 2017, the Defendant
received a summons via Untied States Postal [Service] [sic] three
fraudulent “Notice of Forfeiture of Bail Bond” . . . where the notices did
not provide a Bond No. or Bond Amount.
R. 1 at 1.
Neither of the statutes cited by Sadder-Bey allows for removal of criminal
proceedings based on the grounds cited (the alleged failure of the state judge to
examine or verify the criminal complaints or the omission of the bond number or
bond amount on a notice of forfeiture of bail bond). Section 1455 merely provides the
procedures that must be followed when removing a criminal case from state court; it
does not provide a criminal defendant with the right to do so. Section 1983 has
nothing to do with removal at all. It provides a substantive right of action against
state actors for violations of a person’s civil rights. While Sadder-Bey may believe
he has a valid claim under § 1983 against state actors arising out of his arrest and
3

criminal prosecution, that potential claim is not an adequate basis for removal of
the state criminal proceedings against him. See Vorhees v. Naper Aero Club, Inc.,
272 F.3d 398, 402 (7th Cir. 2001) (“A case arises under federal law within the
meaning of § 1331 only when the claim for relief depends in some way on federal
law, unaided by anything alleged in anticipation or avoidance of defenses which it is
thought the defendant may interpose.”) (internal quotation marks and citation
omitted) (emphasis added)
Several other statutory provisions not cited by Sadder-Bey do accord a right
to remove a state criminal proceeding to federal court, including 28 U.S.C.
§ 1442(a), 28 U.S.C. § 1442a, and 28 U.S.C. § 1443. But none of these special
removal statutes apply here.
The first two cited provisions are plainly inapplicable because Sadder-Bey
does not allege that he is an officer of the United States, or that the state criminal
proceedings against him target any of the official federal interests that trigger those
provisions.
Section 1443, while more closely on point, also is inapplicable. That provision
allows removal of a state criminal prosecution in two circumstances. The Court
first will consider the circumstances set forth in subsection (2) of § 1443, which
permits removal “[f]or 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.” 28 U.S.C. § 1443(2). Subsection (2) provides no basis
for Sadder-Bey’s removal because this provision has been interpreted by the United

4

States Supreme Court to allow removal only by federal and state officers and those
acting under them, City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 821 & 824
n.22 (1966), and Sadder-Bey does not allege he fits into any of those categories.
The second set of circumstances under which removal of a state criminal
proceeding is allowed under § 1443 is set forth in subsection (1) of that statute,
which permits removal of a state 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(1). This provision requires a two-pronged
showing. First, the removing party must show that the state criminal prosecution
denies him rights to which he is entitled under a specific federal civil rights law
which is stated in terms of racial equality. Johnson v. Mississippi, 421 U.S. 213, 219
(1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). Wide-sweeping
constitutional rights such as the right to due process will not satisfy the statutory
requirement, as the right to due process is not granted in terms of racial equality,
but it instead applies to all individuals irrespective of race. Rachel, 384 U.S. at 792
(explaining that § 1443 does not apply to “the whole gamut of constitutional rights”
and that “broad contentions” involving due process “cannot support a valid claim for
removal”); see also Johnson, 421 U.S. at 219 (finding that allegations that a
criminal prosecution “will violate rights under constitutional or statutory provisions
of general applicability . . . will not suffice”).

5

Sadder-Bey’s stated grounds for removal—the alleged failure of the state
judge to examine or verify the criminal complaints and the omission of the bond
number or bond amount on a notice of forfeiture of bail bond—do not satisfy the
requirement that the grounds for removal be based on the alleged denial to the
defendant of a right under a federal law providing for specific civil rights stated in
terms of racial equality. Moreover, even if the Court were to look beyond the Notice
of Removal in search of a factual basis for removal that would satisfy § 1443(1), it
would conclude that none exists. The documents attached to the Notice of Removal
as well as the contemporaneously filed Document # 5, entitled “Counter-Claim,
Affidavit of Complaint/Amended Complaint,” R. 5, do not contain any allegations of
fact that fall within the category of criminal cases for which removal is proper under
§ 1441(1). Essentially, Sadder-Bey alleges that he was stopped and arrested without
probable cause and subjected to excessive force during the arrest. He also alleges
that illegal searches and seizures were made of his car and person. While SadderBey invokes 42 U.S.C. § 1983 in his Notice of Removal, “§ 1983, despite its obvious
protection of civil rights, is not a law providing for ‘equal civil rights’ within the
meaning of the removal statute, at least where § 1983 is not invoked to vindicate a
racially motivated denial of equal protection.” Sweeney v. Abramovitz, 449 F. Supp.
213, 214 (D. Conn. 1978) (internal citations omitted). Although he also alleges that
he is a “Moorish American Moslem,” 1 none of Sadder-Bey’s allegations suggest an

Sadder-Bey uses the word “Moslem” rather than “Muslim” in his pleading. The
word “moslem,” according to the Merriam-Webster Dictionary, is the “formerly
common but now old-fashioned, increasingly rare, and sometimes offensive variant

1

6

issue of racial discrimination, let alone a basis for concluding that his state criminal
prosecution amounts to a denial of a specific civil right under a federal law which is
stated in terms of racial equality.
But even if the Court were to assume for purposes of this Order that SadderBey has alleged facts suggesting a violation of a federal law or constitutional
provision that is stated in terms of racial equality, his removal petition must also
allege or show that he “is unable to obtain a fair trial in a particular state court.”
City of Greenwood, Miss., 384 U.S. at 827; see Johnson, 421 U.S. at 219 (petitioner
must be unable to or be denied the opportunity to enforce the specified federal right
in state court). This requirement can mean one of two things. Either the defendant
must point to some state law or constitutional provision that is discriminatory on its
face. See Fenton v. Dudley, 761 F.3d 770, 774 (7th Cir. 2014) (comparing Strauder v.
West Virginia, 100 U.S. 303 (1879) (removal was proper where the state statute
formally excluded African–Americans from jury service), with Virginia v. Rives, 100
U.S. 313 (1879) (removal not proper where, although African–Americans were
allegedly excluded from jury service as a matter of course, the state statute was
formally neutral)); see also State of Wis. v. Glick, 782 F.2d 670, 672 (7th Cir. 1986)
(“‘Denied or cannot enforce’ means that the frustration of the right to racial equality
is ‘manifest in a formal expression of state law’—that a statute or authoritative
decision announces that claims of the sort asserted are untenable within the state’s
of muslim.” https://www.merriam-webster.com/dictionary/Moslem; see https://www.
washingtonpost.com/news/morning-mix/wp/2015/01/12/why-j-k-rowling-is-so-incense
d-about-rupert-murdochs-tweet-about-moslems/?utm_term=.9ad7d562ac80.
7

judicial system.”) (citations omitted). In the alternative, “even in the absence of a
discriminatory state enactment,” removal could be proper if “an equivalent basis
could be shown for an equally firm prediction that the defendant would be ‘denied or
cannot enforce’ the specified federal rights in the state court.” Rachel, 384 U.S. at
804. Suffice it to say that Sadder-Bey has not alleged any basis for concluding that
either of these alternative methods of satisfying the second prong for removal under
§ 1443(1) are met. He has pointed to no blatantly discriminatory provision of Illinois
law, and no reason why it would be “clear before trial that [he] would be denied his
federal equality rights.” Fenton, 761 F.3d at 774.
B.

TIMELINESS

The Court also summarily remands the Notice of Removal because it was not
filed within 30 days after Sadder-Bey’s arraignment in the State court. The Notice
of Removal does not include the date of arraignment, but that date is shown in the
state record which is attached to the Notice of Removal. Sadder-Bey was arraigned
on February 7, 2017. R. 1 at 11, 53. To be timely, Sadder-Bey would have had to
have filed the Notice of Removal no later than March 9, 2017. The Notice of
Removal was filed on July 5, 2017, and therefore is untimely. Further, Sadder-Bey
has not alleged any basis for the Court to conclude that good cause has been shown
for an order granting Sadder-Bey “leave to file the notice at a later time.” 28 U.S.C.
§ 1455(b)(1).

8

C.

DOCUMENT # 5

Because this case is remanded, Sadder-Bey’s “Counter-Claim, Affidavit of
Complaint/Amended Complaint,” R. 5, must be remanded with it, even though that
document purports to state separate claims against twenty-five individuals who are
not parties to the state criminal complaint. Technically, the document filed by
Sadder-Bey is a third-party complaint, not, as designated, any one of a “counterclaim,” an “affidavit of complaint,” or an “amended complaint.” A criminal
defendant does not have the right to file a third-party complaint in his criminal
matter. Therefore, Document #5 should be stricken. In addition, Sadder-Bey’s
“Counter-Claim, Affidavit of Complaint/Amended Complaint” would be subject to
dismissal in that it seeks to allege claims against the twenty-five named individuals
under 18 U.S.C. §§ 241 and 242. The cited statutes are part of the United States
criminal code, and Sadder-Bey is not a federal prosecutor who has standing to bring
charges against an individual for committing an alleged crime. Nor may he bring a
civil case based on a criminal statute as no private right of action exists under the
criminal statutes in question. See Malnes v. United States Dep’t of Educ., 2017 WL
2834144, at *1–2 (D. Ariz. June 30, 2017) (citing Allen v. Gold Cnty. Casino, 464
F.3d 1044, 1048 (9th Cir. 2006)).
But a federal court lacking subject matter jurisdiction over a removed case
must remand it to the state court from whence it came, and cannot rule on other
pending motions, see Nichols v. Se. Health Plan of Alabama, Inc., 859 F. Supp. 553,
559 (S.D. Ala. 1993) (citing Charles A. Wright & Arthur Miller, FEDERAL PRACTICE

9

& PROCEDURE § 3739 (1985 & Supp. 1993), and In re Bear River Drainage Dist., 267
F.2d 849, 851 (10th Cir. 1959)), or, it logically follows, take any other action sua
sponte such as striking or dismissing a filing in the case. To the extent that SadderBey wishes to raise federal claims in federal court against the state actors named in
the “Counter-Claim, Affidavit of Complaint/Amended Complaint,” the appropriate
way for him to do so would be to file a separate federal lawsuit. Sadder-Bey is
cautioned, however, that frivolous filings alleging a cause of action based on a
federal criminal statute may subject him to sanctions. See Fed. R. Civ. P. 11. 2
CONCLUSION
For the foregoing reasons, this case is remanded back to the Circuit Court of
Cook County.
IT IS SO ORDERED

Thomas M. Durkin
United States District Judge
Dated: July 13, 2017

The Court also cautions Sadder-Bey if he intends to file a separate federal lawsuit,
that a civil complaint naming 25 separate defendants would be dismissed by the
Court at least in its current form for reasons in addition to the legal deficiencies in
the “Counter-Claim, Affidavit of Complaint/Amended Complaint” already discussed.
For instance, the facts alleged demonstrate on their face that the defendant police
officers had probable cause for the arrest and any physical force used in the arrest
was de minimis. Insofar as Sadder-Bey also names numerous defendants who are
judges, prosecutors and other court personnel, the factual allegations do not show
any wrong-doing and those defendants, in any event, would be entitled to absolute
judicial and prosecutorial immunity.

2

10