Voss v. The State of Nebraska

Filing 7

MEMORANDUM AND ORDER that to the extent Voss's Notice of Removal may be construed as a civil complaint, it is dismissed without prejudice for failure to pay required filing and administrative fees or to request to proceed in forma pauperis with in the time prescribed by the court. To the extent Voss is requesting removal of his state criminal case to this court, his request is denied and this case is remanded to the County Court of Brown County, Nebraska. Judgment shall be entered by separa te document and the clerk of the court shall proceed to close this file for statistical purposes. The clerk of the court shall send a copy of this Memorandum and Order and of the Judgment to the Clerk of the County Court of Brown County, Nebraska. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and Clerk of the County Court of Brown County, Nebraska)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH D. VOSS,
Plaintiff,
v.
THE STATE OF NEBRASKA,
Defendant.

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8:18CV28

MEMORANDUM
AND ORDER

On January 29, 2018, Kenneth D. Voss, proceeding pro se, filed a Notice of
Removal pursuant to 28 U.S.C. §§ 1441 and 1446. (Filing No. 1) Attached to the
Notice of Removal is a copy of a criminal complaint filed against Voss in the County
Court of Brown County, Nebraska, on or about January 17, 2018, for various traffic
violations. (Filing No. 1 at CM/ECF p. 3) Although not shown on the complaint, the
criminal case may be filed in Brown County as Case No. CR 18-26.
The clerk of this court docketed the Notice of Removal as a civil complaint
filed pursuant to 42 U.S.C. § 1983 (i.e., as a civil rights action). Because Voss did not
pay the $400.00 filing and administrative fees or request to proceed in forma pauperis
(“IFP”), a standard order was entered on January 31, 2018, requiring him to correct
the deficiency by March 1, 2018. (Filing No. 4) Voss filed supplemental materials on
February 1, 2018 (Filing No. 5) and February 9, 2018 (Filing No. 6), but to date has
not paid the fees or filed an IFP request. Therefore, to the extent that the Notice of
Removal may be construed as a civil complaint, it will be dismissed without prejudice
for failing to comply with the court’s previous order.
It appears, however, that Voss may be attempting to remove his state criminal
case to this court pursuant to 28 U.S.C. §§ 1443 and 1455. A filing fee is not required
for the removal of a state criminal prosecution to federal court. See Lefton v. City of
Hattiesburg, 333 F.2d 280, 285 (5th Cir. 1964).

A defendant who wishes to remove a criminal prosecution from a state court
must file a notice of removal “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 . . . in such action.” 28 U.S.C. § 1455(a). In addition, “[a] notice of
removal of a criminal prosecution shall be filed not later than 30 days after the
arraignment in the State court, or 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 . . . leave to file the notice at a later time.” 28 U.S.C. § 1455(b)(1).
Further, “[i]f it clearly appears on the face of the notice and any exhibits annexed
thereto that removal should not be permitted, the court shall make an order for
summary remand.” 28 U.S.C. § 1455(b)(4).
The federal statute governing the removal of criminal prosecutions from state
court to federal court states, in relevant part:
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) 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 . . . .
28 U.S.C. § 1443.
To demonstrate that removal is proper under § 1443(1), a defendant “must show
that he relies upon a law providing for equal civil rights stated in terms of racial
equality.” Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997). Stated differently, “the
right denied defendant must be one that arises under a federal law that provides for
specific civil rights stated in terms of racial equality” and “the defendant must be
unable to or be denied the opportunity to enforce these specified federal rights in the
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courts of the state in question.” Conrad v. Robinson, 871 F.2d 612, 614-15 (6th Cir.
1989) (citing Johnson v. Mississippi, 421 U.S. 213, 219 (1975)).
Here, Voss does not allege he was denied any civil rights on racial grounds or
under a federal equal rights law. Indeed, Voss fails to allege any facts to explain why
he believes removal would be proper.
IT IS THEREFORE ORDERED:
1.

To the extent Voss’s Notice of Removal may be construed as a civil
complaint, it is dismissed without prejudice for failure to pay required
filing and administrative fees or to request to proceed in forma pauperis
within the time prescribed by the court.

2.

To the extent Voss is requesting removal of his state criminal case to this
court, his request is denied and this case is remanded to the County Court
of Brown County, Nebraska.

3.

Judgment shall be entered by separate document and the clerk of the
court shall proceed to close this file for statistical purposes.

4.

The clerk of the court shall send a copy of this Memorandum and Order
and of the Judgment to the Clerk of the County Court of Brown County,
Nebraska.

DATED this 7th day of March, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
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