The People of the State of New York v. Parker

Filing 5

ORDER AND REPORT - RECOMMENDATION re #3 MOTION for Leave to Proceed in forma pauperis filed by Matthew Parker filed by Matthew Parker: ORDERED that Defendant's IFP Application (Dkt. No. 3) is GRANTED solely for purposes of initial review; and it is further RECOMMENDED that the petition for removal (Dkt. No. 1) be DISMISSED and the matter be REMANDED to the state court in which the proceeding was commenced; and it is further ORDERED that the Clerk provide Defendant with a copy of this Order and Report-Recommendation. Objections to R&R due by 1/24/2022, Case Review Deadline 1/27/2022), Motions terminated: #3 MOTION for Leave to Proceed in forma pauperis filed by Matthew Parker filed by Matthew Parker. Signed by Magistrate Judge Therese Wiley Dancks on 1/10/2022. (Copy served via regular mail)(ds)

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 1 of 7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
THE PEOPLE OF THE STATE OF NEW YORK,
Plaintiff,
6:21-CV-1276
(GTS/TWD)

v.
MATTHEW S. PARKER,
Defendant.
_____________________________________________
APPEARANCES:
MATTHEW S. PARKER
Plaintiff, pro se
15 Main Street
Apartment M
Sidney, NY 13838
THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION
The State of New York (“Plaintiff”) commenced an action against Matthew S. Parker
(“Defendant”) for allegedly operating a motor vehicle without a license. (Dkt. No. 1 at 4; Dkt.
No. 3 at 5.) Defendant has since filed a notice of removal to this Court. (Dkt. No. 1.) Defendant
also filed an application to proceed in forma pauperis (“IFP Application”). (Dkt. No. 3.) A
court may grant in forma pauperis status if a party “is unable to pay” the standard fee for
commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Defendant’s IFP Application
(Dkt. No. 3), the Court finds he meets this standard. Therefore, his IFP Application is granted.
The state action involves a traffic ticket accusing Defendant of driving a motor vehicle
without a license in violation of New York Vehicle and Traffic Law § 509(1). (Dkt. No. 1 at 4.)
Defendant claims removal is appropriate “pursuant to 28 U.S.C. § 1441(a), and or 28 U.S. Code

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 2 of 7

§ 1455(a)” because the New York statute prohibiting the unlicensed operation of motor vehicles
violates his right to travel. Id. at 1-2; see also Dkt. No. 3. After carefully considering
Defendant’s notice of removal and the documents attached thereto, this Court finds removal is
inappropriate and recommends that this case be dismissed and remanded to state court.
I.

LEGAL STANDARD
A “civil action” initially filed in state court may only be removed to federal court if the

action is one “of which the district courts of the United States have original jurisdiction.” 28
U.S.C. § 1441(a); see also Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Only statecourt actions that originally could have been filed in federal court may be removed to federal
court by the defendant.”).1 Removability pursuant to this statute is “strictly construed, both
because the federal courts are courts of limited jurisdiction and because removal of a case
implicates significant federalism concerns.” In re Facebook, Inc., IPO Sec. & Derivative Litig.,
922 F. Supp. 2d 475, 480 (S.D.N.Y. 2013). Simply put, “all doubts should be resolved in favor
of remand.” Town of Southold v. Go Green Sanitation, Inc., 949 F. Supp. 2d 365, 371 (E.D.N.Y.
2013) (citation omitted).
“The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28
U.S.C. §§ 1331 and 1332.” See Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006). “A plaintiff
properly invokes § 1331 jurisdiction when she pleads a colorable claim ‘arising under’ the
Constitution or laws of the United States.” Id. “She invokes § 1332 jurisdiction when she
presents a claim between parties of diverse citizenship that exceeds the required jurisdictional
amount, currently $75,000.” Id.

1

Unless otherwise indicated, in quoting cases, all alterations, internal quotation marks,
emphases, footnotes, and citations are omitted. See, e.g., Sczepanski v. Saul, 946 F.3d 152, 157
n.4 (2d Cir. 2020).

2

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 3 of 7

“Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows
that the defendant has the burden of establishing that removal is proper.” United Food &
Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d
298, 301 (2d Cir. 1994). “A district court must remand a case to state court ‘if at any time before
final judgment it appears that the district court lacks subject matter jurisdiction.’” Vera v. Saks
& Co., 335 F.3d 109, 113 (2d Cir. 2003) (quoting 28 U.S.C. § 1447(c)); see also 28 U.S.C. §
1455(b)(4) (“If 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.”).
II.

DISCUSSION
Removal is not appropriate under 28 U.S.C. § 1441. As noted above, Defendant argues

removal is appropriate because this Court has jurisdiction to consider his defense that the traffic
ticket violates his right to travel. (See Dkt. No. 1 at 1-2.) Defendant’s assertion of a federal
defense does not create original jurisdiction. Aetna Health Inc. v. Davila, 542 U.S. 200, 207
(2004) (citing Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908)).2 Stated
differently, “a defendant may not generally remove a case to federal court unless the plaintiff’s
complaint establishes that the case arises under federal law.” Id. (quoting Franchise Tax Bd. of
State of Cal. v. Constr. Laborers Vacation Tr. for S. California, 463 U.S. 1, 10 (1983)).
Defendant has accordingly failed to demonstrate that this case is removable pursuant to 28
U.S.C. § 1441(a). See New York v. Parenteau, No. 6:21-CV-952 (DNH) (TWD), 2021 WL

See, e.g., HSBC Bank USA, Nat’l Ass’n as Tr. for Opteum Mortg. Acceptance Corp. AssetBacked Pass-Through Certificates Series 2005-2 v. Vitti, No. 3:21-CV-1221 (SRU), 2021 WL
4810578, at *2 (D. Conn. Oct. 15, 2021); Fed. Nat’l Mortg. Ass’n v. Samuel, No. 07-CV-4125
(JS)(WDW), 2007 WL 9725047, at *2 (E.D.N.Y. Dec. 20, 2007); 1199 Hous. Corp. v. White,
No. 04 CIV. 3152 (NRB), 2004 WL 1118248, at *1 (S.D.N.Y. May 19, 2004); City of New York
v. Simithis, No. 88 CIV. 1618 (KC), 1988 WL 59965, at *3 (S.D.N.Y. June 9, 1988).
2

3

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 4 of 7

4267782, at *2 (N.D.N.Y. Sept. 3, 2021), report and recommendation adopted, 2021 WL
4263178 (N.D.N.Y. Sept. 20, 2021).
Removal is not appropriate under 28 U.S.C. § 1443 either.3 The removal of state civil or
criminal prosecution to federal court under 28 U.S.C. § 1443 is appropriate in two narrow
circumstances. See 28 U.S.C. §§ 1443(1)-(2); In re Fischer, No. 19-CV-3793(JS)(ARL), 2019
WL 3281127, at *1 (E.D.N.Y. July 18, 2019). The state court prosecution that Defendant seeks
to remove does not qualify for removal under either. See 28 U.S.C. §§ 1443(1)-(2).
The first of the two narrow circumstances is governed by 28 U.S.C. § 1443(1), which
allows defendants to remove state court prosecutions to federal court only if they meet both
prongs of a two-part test. See Johnson v. Mississippi, 421 U.S. 213, 219 (1975); State of Ga. v.
Rachel, 384 U.S. 780, 788 (1966). “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.” Johnson, 421 U.S. at 219 (quoting Rachel, 384 U.S. at 792). “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.” Id.; see, e.g., Suffolk Cty. Dep’t of Soc. Servs. v. Clarke, 807 F. App’x 133, 135 (2d Cir.
2020) (remanding because defendant’s claims were “not based on racial discrimination”); In re

3

Defendant claims removal is appropriate under 28 U.S.C. § 1455(a). (Dkt. No. 1 at 1-2.)
However, 28 U.S.C. § 1455 is a procedural statute that does not confer jurisdiction. Compare 28
U.S.C. § 1455 (outlining the procedures for “defendants desiring to remove any criminal
prosecution from a State court”), with id. at § 1443 (“Any of the following civil actions or
criminal prosecutions, commenced in a State court may be removed by the defendant”); see also
State of Utah v. Bryson, No. 2:15-MC-00890 (JNP) (EJF), 2016 WL 4702101, at *2 (D. Utah
Aug. 19, 2016), report and recommendation adopted, 2016 WL 4691590 (D. Utah Sept. 7,
2016). The Court accordingly construes Defendant’s pro se pleading liberally, evaluating
whether removal is valid under 28 U.S.C. § 1443. See, e.g., State of N.M. v. Gutierrez, 409 F.
Supp. 2d 1346, 1348 (D.N.M. 2006).

4

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 5 of 7

Fischer, No. 19-CV-3793(JS)(ARL), 2019 WL 3281127, at *2 (E.D.N.Y. July 18, 2019)
(remanding because defendant failed to allege “the state criminal case violates his civil rights in
terms of racial equality”).
Defendant’s removal petition does not satisfy this first prong of the two-part test. (See
Dkt. No. 1.) He makes no claim that by prosecuting him for driving without a license, New York
is violating a federal right that safeguards racial equality. See id. Stated differently, he makes no
claim that a federal civil rights law directed towards racial equality gives him the right to drive
his Mercedes Benz without a license. See id.; see also Dkt. No. 3 at 5. Nor can he, because “no
federal law confers an absolute right on private citizens . . . to drive an automobile without a
license,” and “no federal law confers immunity from state prosecution on such charges.” City of
Greenwood, Miss. v. Peacock, 384 U.S. 808, 826-27 (1966); see also City of Chandler v.
Hansen, No. CV-10-0072 (JAT), 2010 WL 2790530, at *1-3 (D. Ariz. July 14, 2010)
(remanding a state court prosecution for a “photo-radar traffic ticket”).4 Defendant has
accordingly failed to demonstrate that removal is appropriate under 28 U.S.C. § 1443(1).
The second of the two circumstances where individuals can remove state court
prosecutions to federal court is governed by 28 U.S.C. § 1443(2). This subsection “applies only
to 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, and state officers who

4

Defendant also fails to satisfy the second prong of 28 U.S.C. § 1443(1) because he makes no
claim that he cannot enforce his rights in New York State court. See New York v. Smith, 494 F.
App’x 138, 140 (2d Cir. 2012) (remanding because defendant did not “offer any reason for us to
conclude that New York State courts cannot protect whatever federal rights he may assert in his
criminal proceeding or that those rights will inevitably be denied.”); New York v. Dickerson, No.
20-CR-208 (PKC), 2020 WL 3263771, at *3 (E.D.N.Y. June 16, 2020) (“Defendant does not
satisfy the second prong under § 1443(1), because he makes no allegation that he cannot enforce
his constitutional right in state court.”).
5

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 6 of 7

refuse to do an act on the ground that it would be inconsistent with civil rights laws.” Delaware
v. Desmond, 792 F. App’x 241, 242 (3d Cir.), cert. denied, 141 S. Ct. 180 (2020); see also
Dickerson, 2020 WL 3263771, at *3. Defendant is neither a federal nor state officer, and he has
made no allegation that his act of driving without a license was protected conduct in furtherance
of racial equality. See Wachtler v. Cuomo, No. 91-CV-1235, 1991 WL 249892, at *3 (N.D.N.Y.
Nov. 21, 1991) (“There is no question that § 1443 was meant to protect certain individuals from
prosecution in state courts for their actions or omissions in furtherance of racial equality.”).
Defendant’s removal petition accordingly fails to meet the requirements of 28 U.S.C. § 1443(2).
See Gonzalez v. Clark, No. 19-CV-10542 (CM), 2019 WL 6878546, at *2 (S.D.N.Y. Dec. 16,
2019) (remanding because defendant failed to allege “that he is a federal officer or member of
the armed forces being prosecuted for actions taken under color of office”); Legister v. Pagones,
No. 19-CV-3676 (LLS), 2019 WL 2408029, at *2 (S.D.N.Y. June 5, 2019) (same).
III.

CONCLUSION
For the foregoing reasons, the Court recommends dismissing Defendant’s removal

petition and remanding this action to State court.
ACCORDINGLY, it is
ORDERED that Defendant’s IFP Application (Dkt. No. 3) is GRANTED solely for
purposes of initial review; and it is further
RECOMMENDED that the petition for removal (Dkt. No. 1) be DISMISSED and the
matter be REMANDED to the state court in which the proceeding was commenced; and it is
further
ORDERED that the Clerk provide Defendant with a copy of this Order and ReportRecommendation.

6

Case 6:21-cv-01276-GTS-TWD Document 5 Filed 01/10/22 Page 7 of 7

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file
written objections to the foregoing report.5 Such objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72, 6(a).

Dated: January 10, 2022
Syracuse, New York

5

If you are proceeding pro se and are served with this Order and Report-Recommendation by
mail, three additional days will be added to the fourteen-day period, meaning that you have
seventeen days from the date the Order and Report-Recommendation was mailed to you to serve
and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).

7