STATE OF NEW JERSEY v. ARISTEO
MEMORANDUM ORDER: ORDERED that Defendant's application to proceed without prepayment of fees is GRANTED, and the Clerk of the Court shall file the Notice of Removal; and it is further ORDERED that this matter shall be REMANDED to the Superior Court of New Jersey, Law Division; and it is further ORDERED that the Clerk of the Court shall close the file. Signed by Judge Renee Marie Bumb on 12/29/2014. (tf, )
NOT FOR PUBLICATION
[Dkt. Ent. 1]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STATE OF NEW JERSEY,
Action No. 14-7911 (RMB/AMD)
BUMB, United States District Judge:
On December 22, 2014, Defendant Bruce Aristeo (the
“Defendant”) filed a Notice of Removal, purporting to remove a
criminal action from the Superior Court of New Jersey, Law
Division, on grounds that the prosecution is unconstitutional
and violative of Defendant’s First Amendment and Due Process
rights. (Dkt. Ent. 1.) He appears to seek a stay of his criminal
proceeding pending disposition of a related civil action, but
also argues for dismissal of the State Court Indictment.
Defendant also filed an Application to Proceed Without
Prepayment of Fees pursuant to 28 U.S.C. § 1915. Because the
attached Affidavit of indigence demonstrates that Defendant is
unable to pay the requisite filing fee, the Court grants
Defendant’s application to proceed without prepayment of fees.
However, the Court must remand this matter to the Superior
Court of New Jersey, Law Division. Based upon the allegations
contained within the Notice of Removal and its attachments, a
Temporary Restraining Order (“tro”) was issued against Defendant
on August 2, 2012. (Dkt. Ent. 1-1.) The Complaint avers that
between January 2, 2013 and May 15, 2013, Defendant violated
that TRO by posting inflammatory videos regarding Jody Raines on
public internet sites. (Id.) He was indicted in June 2013 for
“purposefully or knowingly engag[ing] in a course of conduct
directed at Jody Raines that would cause a reasonable person to
fear for their safety or the safety of a third person or suffer
other emotional distress . . . in violation of N.J.S. 2c:12-10c
. . . .” (Id.) According to the documents Defendant submitted
with his Notice, he has proceeded before the Law Division,
representing himself, for quite some time.
Criminal prosecutions commenced in state court may be
removed to federal court in limited circumstances. Pursuant to
28 U.S.C. § 1442, criminal prosecutions against or directed to
the following may be removed:
(1) The United States or any agency thereof or any
officer (or any person acting under that officer) of
the United States or of any agency thereof, in an
official or individual capacity, for or relating to
any act under color of such office or on account of
any right, title or authority claimed under any Act of
Congress for the apprehension or punishment of
criminals or the collection of the revenue.
(2) A property holder whose title is derived from any
such officer, where such action or prosecution affects
the validity of any law of the United States.
(3) Any officer of the courts of the United States,
for or relating to any act under color of office or in
the performance of his duties;
(4) Any officer of either House of Congress, for or
relating to any act in the discharge of his official
duty under an order of such House.
28 U.S.C. § 1442(a). Criminal prosecutions against a member of
the armed forces also may be removable to federal court. 28
U.S.C. § 1442a. Moreover, 28 U.S.C. § 1443 authorizes removal of
(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
(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.
Where a party seeks removal under § 1443(1), the criminal
defendant must: “(a) allege a denial of his rights on account of
race; and (b) detail the facts showing that he cannot enforce
his federal rights in state court.” Mahan v. New Jersey, No. 14508, 2014 WL 4054029, at *1 (D.N.J. Aug. 15, 2014) (citing Del.
v. Hefley, 403 F. App’x 677, 678 (3d Cir. 2010). Therefore,
“removal is not warranted when it is based solely on
petitioners’ allegations that the statutes underlying the
charges against them were unconstitutional, that there was no
basis in fact for those charges, or that their arrest and
prosecution otherwise denied them their constitutional rights.”
Id. (quoting In re Oke, 436 F. App’x 138, 139 (3d Cir. 2011)
(internal citations and quotations omitted)); see also New
Jersey v. Willis, No. 10-5242, 2011 WL 1134457, at *2 (D.N.J.
March 24, 2011) (“Where the party seeking removal asserts the
violation of his constitutional rights phrased in terms of
general rights applicable to all citizens, rather than
provisions couched in the specific language of racial equality,
there is no basis for removal under Section 1443(1).” (citations
omitted)). As to § 1443(2), this section is applicable to
federal officers or agents and those authorized to act for or
with them. Willis, 2011 WL 1134457, at *2.
Even liberally construing Defendant’s Notice of Removal, as
this Court must, Defendant makes no such allegations permitting
removal under § 1442, 1442a, or 1443. At best, his Notice is
read to assert violations of the generally-applicable First
Amendment, as well as claims of “wrongdoing” and
“unconstitutional” actions by the investigators, and thus his
attempt to remove this matter to federal court will be denied.
ACCORDINGLY, FOR THESE REASONS,
IT IS on this 29th day of December 2014 hereby
ORDERED that Defendant’s application to proceed without
prepayment of fees is GRANTED, and the Clerk of the Court shall
file the Notice of Removal; and it is further
ORDERED that this matter shall be REMANDED to the Superior
Court of New Jersey, Law Division; and it is further
ORDERED that the Clerk of the Court shall close the file.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
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