Kruebbe v. Gegenheimer
Filing
77
ORDER AND REASONS: Plaintiff has filed a Notice of Removal attempting removal of his criminal prosecution pending in the Second Parish Court for the Parish of Jefferson. This is the second notice of removal Plaintiff has filed regarding these proceed ings. Accordingly, there is no basis for removal, and the criminal action is REMANDED. Plaintiff is prohibited from seeking further removal on the same grounds. Signed by Judge Jane Triche Milazzo on 4/25/2016.(my)(CC: Clerk, 2nd Parish Court of Jefferson)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFREY KRUEBBE
CIVIL ACTION
VERSUS
NO: 15-6930
JON GEGENHEIMER ET AL
SECTION: “H”(3)
ORDER AND REASONS
Plaintiff has filed a Notice of Removal attempting removal of his criminal
prosecution pending in the Second Parish Court for the Parish of Jefferson.
This is the second notice of removal Plaintiff has filed regarding these
proceedings. He previously attempted to remove his criminal proceeding into
this open civil case through his first and second amended complaints. Though
it is generally improper to remove a criminal case into an open civil case, the
Court, construing his pro se pleadings liberally, nevertheless proceeded to the
merits of the removal. Concluding that removal was not appropriate, the Court
remanded his criminal action on January 22, 2016.1 Plaintiff again seeks to
remove the same pending criminal action.
At the April 20, 2016 status
conference the Court ordered that the criminal action would once again be
remanded. These reasons follow.
The Federal Removal Statutes, as codified at 28 U.S.C. §§ 1441–1455,
specify limited grounds for removal of state criminal prosecutions. First, 28
1
Doc. 20.
U.S.C. § 1442 provides that a criminal action may be removed (1) when it is
against the United States, a federal officer, an officer of the courts of the United
States, or an officer of either House of Congress, if certain requirements are
met; (2) when it is against a property holder whose title is derived from any
officer of the United States or its agencies, and the prosecution affects the
validity of any law of the United States; and (3) when it involves a member of
the armed forces, if certain requirements are met. Because Plaintiff’s case does
not involve federal officers, federally derived property, or members of the
armed forces, removal under § 1442 is not appropriate.
Second, pursuant to 28 U.S.C. § 1443, the following types of criminal
actions may be removed:
(1) Against 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;
(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.
The Supreme Court, construing 28 U.S.C. § 1443, has held that §
1443(2) “is available only to federal officers and to persons assisting such
officers in the performance of their duties.”2 Because Plaintiff is neither a
federal officer nor a person assisting such an officer, he cannot remove on this
ground.
City of Greenwood v. Peacock, 384 U.S. 808, 815 (1966). See also Charter Sch. of
Pine Grove, Inc. v. St. Helena Parish Sch. Bd., 417 F.3d 444, 447 (5th Cir.2005) (“The
Supreme Court has held that § 1443 ‘confers a privilege of removal only upon federal
officers or agents and those authorized to act with or for them in affirmatively executing
duties under any federal law providing for equal civil rights.’ ”).
2
2
No such limitation is established by § 1443(1); rather, the Supreme
Court, in Johnson v. Mississippi, held that:
[A] removal petition under 28 U.S.C. § 1443(1) must satisfy
a two-pronged test.
First, it must appear that the right allegedly denied the
removal petitioner arises under a federal law providing for
specific civil rights stated in terms of racial equality. Claims
that prosecution and conviction will violate rights under
constitutional or statutory provisions of general applicability
or under statutes not protecting against racial
discrimination, will not suffice. That a removal petitioner
will be denied due process of law because the criminal law
under which he is being prosecuted is allegedly vague or that
the prosecution is assertedly a sham, corrupt, or without
evidentiary basis does not, standing alone, satisfy the
requirements of § 1443(1).
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. This provision normally requires that the denial be
manifest in a formal expression of state law, such as a state
legislative or constitutional provision, rather than a denial
first made manifest in the trial of the case. Except in the
unusual case where 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, it was to be expected that the protection of
federal constitutional or statutory rights could be effected in
the pending state proceedings, civil or criminal.3
Even construing Plaintiff’s notice of removal liberally, the Court cannot
conclude that he has established grounds for removal under 1443(1).
Johnson v. Miss., 421 U.S. 213, 219–20 (1975) (citations and internal quotation
marks omitted). See also Smith v. Winter, 717 F.2d 191, 194 (5th Cir.1983).
3
3
He
asserts that he “cannot receive a fair trail [sic] in the Second Parish Court of
Jefferson . . . because Judge Raylyn Beevers . . . is bias [sic] and is controlling
the fines, fees, and taxes she is assessing.”4 The allegations make no mention
of a right arising under a federal law providing for specific civil rights stated
in terms of racial equality. Accordingly, there is no basis for removal, and the
criminal action is REMANDED. Plaintiff is prohibited from seeking further
removal on the same grounds.5
New Orleans, Louisiana this 25th day of April, 2016.
____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
4
5
Doc. 65-2.
S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996).
4
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