Landry v. State of North Carolina

Filing 6

ORDER remanded matter to Mecklenburg County District Court. Signed by Chief Judge Robert J. Conrad, Jr on 12/5/2011. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-11-RJC-DCK
ANGELIQUE LANDRY,
Plaintiff,
vs.
STATE OF NORTH CAROLINA,
Defendant.

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ORDER

THIS MATTER comes before the Court on its own motion pursuant to its independent
obligation to determine whether subject-matter jurisdiction exists. See Hertz Corp. v. Friend,
130 S. Ct. 1181, 1193 (2010).
I.

BACKGROUND
State prosecutors brought charges against Landry in Mecklenburg County District Court.

(Case No. 3:10-cv-669, Doc. No. 8 at 2). Landry removed her case to federal court rather than
defend against these allegations in state court. (Doc. No. 1). This Court previously remanded
Plaintiff’s case under Case Number 3:10-cv-669. (Case No. 3:10-cv-669, Doc. No. 13). North
Carolina has not answered Plaintiff’s complaint under this case number. The Court issued a lack
of prosecution notice on October 3, 2011.
III.

ANALYSIS

“Courts have an independent obligation to determine whether subject-matter jurisdiction
exists, even when no party challenges it.” Hertz Corp., 130 S. Ct. at 1193. “If at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c). Here, the Court lack jurisdiction and remands to Mecklenburg

County Superior Court.
A federal officer or agency may remove a “criminal prosecution commenced in a State
court . . . [based on] an act done under color of his office.” 28 U.S.C. § 1442. Also, anyone may
remove a state criminal prosecution if they are “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” or “[f]or any act under color of authority derived
from any law providing for equal right, or for refusing to do any act on the ground that it would
be inconsistent with such law.” 28 U.S.C. § 1443.
This is a criminal action. Therefore, this Court’s jurisdiction may only be based on 28
U.S.C. §§ 1442 or 1443, which allow for the removal of state criminal prosecutions in certain
narrow circumstances. But because Landry is not a federal officer and does not allege that she
assisted any federal officer in the performance of his or her official duties, see (Doc. No. 1), her
removal of this state criminal prosecution must comply with 28 U.S.C. § 1443(1). See 28 U.S.C.
§ 1442 (granting removal right to federal officers, agencies, or recipients of lands from federal
officers); City of Greenwood v. Peacock, 384 U.S. 808, 814-15 (1966) (holding that 28 U.S.C. §
1443(2) is available only to federal officers and to persons assisting such officers in the
performance of their official duties).
“To remove a case from a state court under 28 U.S.C. § 1443(1), a defendant must show
(1) that he is being deprived of rights guaranteed by federal laws protecting against racial
discrimination and (2) that ‘it can be clearly predicted by reason of the operation of a pervasive
and explicit state or federal law that those rights will inevitably be denied by the very act of
bringing the defendant to trial in the state court.’” Noel v. McCain, 538 F.2d 633, 635 (4th Cir.
1976) (quoting Greenwood, 384 U.S. at 828); see also Georgia v. Rachel, 384 U.S. 780, 788
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(1966). Landry does not claim that she has been “deprived of rights guaranteed by federal laws
protecting against racial discrimination.” (Doc. No. 1); see also McCain, 538 F.2d at 635.
Landry cannot remove her case to this Court under 28 U.S.C. § 1443(1), or any other statutory
authority. See 28 U.S.C. §§ 1331, 1332 (both referring to “civil actions”).
IV.

CONCLUSION
This Court lacks subject matter jurisdiction and this case must be remanded.
IT IS, THEREFORE, ORDERED that:
1.

Landry’s Notice of Petition and Petition for Warrant of Removal, (Doc. No. 1), is
REMANDED.

Signed: December 5, 2011

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