Williams v Commonwealth of PA

Filing 2

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, this matter is remanded to State court pursuant to 28 U.S.C. § 1455. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/27/15. (cc)

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Commonwealth of Pennsylvania
:Case No. 3:15-CV-1022

v.

FILED

(JUDGE CONABOY)
Nicholas J. Williams, Sr.

SCRf.\NTO
~

y 2 7 2015

MEMORANDUM

Here we consider a Notice of Removal filed by Nicholas J.
Williams, Sr., on May 19, 2015.
remove an action

(Doc. 1 at 1.)

ioned "Commonwealth of Penn

Williams seeks to
vania v.

Nicholas J. Williams, Sr." pending before Lackawanna County,

Pennsylvania, Magisterial District Judge Laura M. Turlip.
at 4.)

In the state action, Williams is

(Doc. 1

rged with Driving Under

the Influence, Driving Without a License, and Driving an
Unregistered Vehicle.
in a lawsu

(Id.)

Williams states that he is invo

pending in the jurisdiction where his cr

nal case is

pending and he has a conflict of interest with Magisterial District
Judge Turlip.

(Doc. 1 at 2.)

He asserts that he is entitled to

have his state criminal case tried in federal court and removal is
proper pursuant to 28 U.S.C. §§ 1455, 1441, 1442, "etc. etc."
(Doc. 1 at 3.)
I. Discussion

28 U.S.C. § 1455 sets out the procedure for removal of
criminal prosecutions from a state court.
following:

It provides the

Notice of removal. -A de
or
fendants
desir
to remove any cr
nal prosecution
from a State court shall file in the district
court of the United States for the district
and divison within which such prosecution is
pending 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,
ther with a copy of all process,
pleadings, and orders served upon such
defendant or defendants in such action.
28 U.S.C. § 1455(a).

The requirements for removal explain that the

notice must include all grounds for removal.
1455 (b) (2).

The statute also provides t

28 U.S.C. §

following:

"The United

States district court in which such notice is filed shall examine
ly.

the notice p

If it clearly appears on the face of the

notice and any exhibits annexed thereto that removal should not be
permitt

,the court shall make an order for summary remand."

28

D.S.C. § 1455(b) (4).
The s

tantive grounds for removal of a criminal prosecution

are set out in 28 U.S.C. §§ 1442, 1442a and 1443.

Section 1442

allows for removal of criminal prosecutions in certain instances
nst federal officers or

s.

Section 1442a similarly

allows for removal of certain state court cases against members of
the armed forces.
Though Williams cites § 1442 as a basis for removal

(Doc.

1 at

3), he provides nothing to suggest he would be authorized to
roceed under this section.

Petitioner does not allege that he is

a member of the armed forces--a threshold requirement to proceed
2

under § 1442a.

Williams does not cite § 1443, the other provision

which may provide grounds for removal, but we will review the
requirements set out therein to see if Williams may proceed in this
Court.
Section 1443 allows for removal in two situations, the first
of which authorizes t

removal of a state law civil or criminal

action "[a]gainst any person who is denied or cannot enforce in t
courts of such State a right under any law providing for the equal
civil rights of citizens of the United Sate, or of all persons
within the jurisdiction thereof."
Circu

28 U.S.C.

§

1443(1).

T

Court of Appeals explained the parameters of removal

pursuant to this provision in Commonwealth of Penn
Randolph,

464 F. App'x 46 (3d Cir. 2012)

(per curiam)

vania v.

(not

precedential) .
For this provision to apply, "a state court
defendant must demonstrate both: (1) that
is being deprived of rights guaranteed by a
federal law 'providing for.
. equal civil
rights'; and (2) that he is denied or cannot
enforce that right in the courts of
state." Davis v. Glanton, 107 F.3d [1044,]
1047 [3d Cir. 1997] (quoting State of Georgia
v. Rachel, 384 U.S. 780, 788, 86 S. Ct. 1783,
16 L. Ed. 2d 925 (1966)).
Under the first
requirement, the defendant must allege a
deprivation of rights guaranteed by a federal
law "providing for specific civil ri
s
stated
terms of racial equality." Id.
(internal citations and quotations omitted)
Under the second requirement, removal is
available where the defendant's federal civil
rights would "inevitably
denied by the
very action of being brought to trial in
state court." Id. at 1049 (internal
3

Third

citations and quotations omitted).
464 F. App'x at 47.
Here Williams does not allege that the state court litigation
involves issues of racial equality.
under

Therefore, he cannot proceed

1443(1).

§

The final provision which might permit removal is

§

1443(2)

pursuant to which the defendant may remove from state court a civil
or criminal action "for any act under color of authority derived
from any law providing

equal rights, or for refusing to do any

act on the ground that it would be inconsistent with such law."
U.S.C.

§

1443(2).

28

This subsection "'confers a privilege of removal

only upon 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.'" 464 F. App'x at 47
(quoting City of Greenwood/ Miss.
S. Ct. 1800, 16 L. Ed. 2d 944

v. Peacock, 384 U.S. 808, 824, 86

(1966).

Williams has failed to allege anything which would allow him
to proceed under this provision.
Williams removal.

Therefore,

§

1443 cannot support

Because Williams has presented no valid grounds

for removal, summary remand is appropriate pursuant to 28 U.S.C.

§

1455(4).
II. Conclusion

For the reasons discussed above, this matter is remanded to
State court pursuant to 28 U.S.C.

§

4

1455.

An appropriate Order is

filed simultaneously with this Memorandum.

RICHARD P. CONABOY
United States District J
DATED:

5