United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the required frivolity reviews
of Defendant Wilhy Harpo's (“Defendant”)
notices of removal filed in civil action numbers 1:16-cv-2955
(“August Action”) and 1:16-cv-4069
are the latest in a series of actions filed in this Court by
Mr. Harpo. The Court has remanded each previous case for lack
of subject matter jurisdiction or dismissed it as frivolous.
See, e.g., Order, Broadstone Maple, LLC v.
Alexander Corporate Accommodations, LLC, No.
1:16-cv-2774-WSD (N.D.Ga. August 2, 2016) (Doc. 4). Because
Plaintiff is a frequent filer of frivolous lawsuits, the
Court has previously ordered him “to disclose his full
litigation history in any civil rights complaint and/or [IFP]
affidavit that he files.” See, e.g.,
Williams v. Harpo, No. 1:16-cv-12225-WSD (N.D.Ga.
2016) (ECF No. 2 at 2); Harpo v. City of Atlanta,
No. 1:16-cv-1067-WSD (N.D.Ga. 2016) (ECF No. 2 at 1-2);
Harpo v. City of Atlanta, No. 1:14-cv-2157-WSD
(N.D.Ga. 2014) (ECF No. 2 at 1-2); Harpo v. Fulton Cty.
Sheriff, No. 1:14-cv-2208-WSD (N.D.Ga. 2014) (ECF No. 2
at 1-2). It appears Plaintiff has complied with that
requirement in filing these actions.
2, 2016, Mr. Harpo was arrested in the Fulton County
courthouse and charged with willful obstruction of law
enforcement officers by use of threats or violence, in
violation of O.C.G.A. § 16-10-24(b), disorderly conduct,
in violation of O.C.G.A. § 16-11-39, and criminal
trespass, in violation of O.C.G.A. § 16-7-21.
(See August Action, [1.2] at 6).
August 12, 2016, Harpo filed in this Court his
“Petition for Removal” [1.1] in the August
Action, and, on October 31, 2016, he filed his
“Petition for Removal” [1.1] in the October
Action. In each petition, Harpo seeks to remove to this Court
the state criminal action against him. Harpo alleges he is
“an indigenous sovereign national belong to the Ancient
Nation of Israel[, ]” that he cannot receive a fair
trial because of “the presence of fundamental actual
active bias and pervasive extra-judicial prejudice against
Harpo by the judges of the state courts in FULTON COUNTY on
account of Harpo's race as a Negro and Defendants [sic]
procedural standing as a litigant in proper person.”
(October Action, [1.1] at 2). He claims the state court
criminal proceeding “violates the treaties had been
[sic] the Cherokee Nation to which Defendant belongs; the
Geneva Convention; Uniform Commercial Code; and other
international agreements . . . .” (Id. at 3).
must dismiss a complaint filed in forma pauperis if
at any time the court determines the action is frivolous or
malicious or that it fails to state a claim on which relief
can be granted. 28 U.S.C. § 1915(e)(2)(B)(i)-(ii).
“Failure to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed.R.Civ.P.
12(b)(6).” Wilkerson v. H&S, Inc., 366 F.
App'x 49, 51 (11th Cir. 2010) (citing Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)). Under
this standard, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556).
for frivolousness, on the other hand, “‘accords
judges not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.'” Miller v.
Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (quoting
Neitzke v. Williams, 490 U.S. 319, 327 (1989)). A
claim is frivolous when it “has little or no chance of
success, ” that is, when it appears “from the
face of the complaint that the factual allegations are
‘clearly baseless' or that the legal theories are
‘indisputably meritless.'” Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993) (quoting
Neitzke, 490 U.S. at 327).
Chapter 89 of Title 28, certain state criminal prosecutions
may be removed to federal district court. 28 U.S.C.
§§ 1443, 1455. Removal is allowed for a criminal
prosecution commenced in State court “[a]gainst 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 jurisdiction thereof[.]” 28 U.S.C. §
1443(1). Under § 1443(1), a removal petition “must
satisfy a two-pronged test.” Johnson v.
Mississippi, 421 U.S. 213, 219 (1975); see also
Kopec v. Jenkins, 357 F. App'x 213, 214 (11th Cir.
2009); Alabama v. Conley, 245 F.3d 1292, 1295 (11th
Cir. 2001). First, a petitioner must show the deprivation of
a right that “arises under a federal law
‘providing for specific civil rights stated in terms of
racial equality.'” Johnson, 421 U.S. at
219 (quoting Georgia v. Rachel, 384 U.S. 780, 792
(1966)). Second, the deprivation generally must “be
manifest in a formal expression of state law.”
Id. at 219-20 (quoting Rachel, 384 U.S. at 803)
(internal quotation marks omitted) (giving as an example a
trespassing law that made it a crime for an African American
to exercise his right to seek service in a public
restaurant). Thus, Section 1443 protects against state
prosecution for exercising a federal civil right to racial
equality. Rachel, 384 U.S. at 792-93. The removing
party carries the burden of showing that removal under
Section 1443 is proper. Kirkland v. Midland Mortg.
Co., 243 F.3d 1277, 1281 n.5 (11th Cir. 2001)
(“[I]n removal cases, the burden is on the party who
sought removal to demonstrate that federal jurisdiction
exists.”). “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.” 28 U.S.C. § 1455(b)(4).
conclusory assertions of racial bias, Harpo does not allege
that he is being prosecuted for exercising a federally
protected civil right to racial equality or that a formal
expression of state law has deprived him of a federally
protected right to racial equality. Accordingly, removal of
the Georgia criminal action against Harpo is not permitted.
The Court lacks any other basis for jurisdiction, and this
action is remanded pursuant to 28 U.S.C. § 1455(b)(4).