Parma Municipal Court et al v. Bey

Filing 3

Memorandum Opinion and Order: Bey's "Legal Notice of Removal Action" is summarily dismissed and his "writ of mandamus," to the extent it can be construed as a petition, is denied. This dismissal and denial has absolutely no bearing on any state court action. Further, the Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Related Doc # 1 ). Judge Sara Lioi on 3/11/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PARMA MUNICIPAL COURT, et al.,
PLAINTIFFS,
vs.
WASIM BEY,
DEFENDANT.

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CASE NO. 1:14-cv-1574
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

On July 16, 2014, pro se litigant Wasim Bey, identifying himself as an
“Aboriginal Indigenous Moorish-American,” filed a “Legal Notice of Removal Action”
(Doc. No. 1) purporting to remove to this Court, and challenge on indiscernible grounds,
criminal traffic proceedings brought against him in Parma Municipal Court in which he
was charged with multiple traffic-related offenses. The Clerk docketed Bey’s filing as a
“Notice of Removal,” identifying Parma Municipal Court, State of Ohio, Officer Todd
Hanley, and Judge Timothy P. Gillian as “plaintiffs” and Wasim Bey as “defendant.” On
August 6, 2014, Bey followed up his notice of removal with a document styled as a “Writ
of Mandamus.” (Doc. No. 2.) For the reasons discussed below, this action is dismissed.
A criminal prosecution may be removed from state court to federal court
under 28 U.S.C. § 1455, which provides that the defendant must file in the district court
“a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure
and 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.”

Bey’s notice of removal is far from a “short and plain statement.” Further,
despite the length of his petition, Bey has set forth no grounds for removal of his
prosecution for traffic violations, much less grounds that are sufficient under the removal
statutes and the case law interpreting those statutes.
Under 28 U.S.C. § 1443, a criminal prosecution may be removed only
where a person “is denied or cannot enforce in the courts of [the] 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[.]” The Supreme Court has given § 1443 a very restrictive
interpretation, establishing a two-part 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.’” Johnson v. Mississippi, 421 U.S. 213, 219
(1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). That “the criminal law
under which [the removal petitioner] 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). Id. (citing Greenwood v. Peacock, 384 U.S.
808, 825 (1966)). “Second, it must appear . . . 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.’” Id. (quoting Georgia v. Rachel, 384 U.S. at 799, 803, 804).
Bey’s rambling and incomprehensible notice of removal satisfies neither
of these requirements, nor does his equally rambling and incomprehensible “writ of
mandamus” in any way cure the defects of his removal petition.

Section 1455(b)(4) provides that if “it clearly appears on the face of the
notice and any exhibits attached thereto that removal should not be permitted, the court
shall make an order for summary remand.” Although remand would ordinarily be
appropriate where removal was improper and/or ineffective, in this case, there was never
any notice given to the state court that Bey attempted to remove his criminal case to this
Court, and it appears from the online docket of the Parma Municipal Court that the state
court has properly proceeded with Bey’s criminal prosecution.1 Therefore, dismissal of
this federal case, rather than remand, is the more appropriate action. See McDonald v.
Tennessee, 79 F. App’x 793, 794 (6th Cir. 2003) (affirming the district court’s dismissal
of a removal petition in a pending traffic-related case because it “did not raise a
cognizable civil rights claim”) (citing Younger v. Harris, 401 U.S. 37, 43-45 (1971);
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).
Accordingly, Bey’s “Legal Notice of Removal Action” is summarily
dismissed and his “writ of mandamus,” to the extent it can be construed as a petition, is
denied. This dismissal and denial has absolutely no bearing on any state court action.

1

The filing of a notice of removal of a criminal prosecution “shall [generally] not prevent the State court in
which such prosecution is pending from proceeding further,” 28 U.S.C. § 1455(b)(3), unless the federal
court “determines that removal shall be permitted, [and] so notif[ies] the State court in which prosecution is
pending, which shall [then] proceed no further.” 28 U.S.C. § 1455(b)(5).

Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),2 that an appeal from this
decision could not be taken in good faith.

IT IS SO ORDERED.

Dated: March 11, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

2

Bey neither paid the filing fee, 28 U.S.C. § 1914, nor sought leave to proceed in forma pauperis, 28
U.S.C. § 1915. Although this Court would ordinarily provide Bey with notice of this deficiency and allow
him time to correct it, at this juncture any such procedural action would be an exercise in futility. For all
practical purposes, Bey has already proceeded in forma pauperis.