United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND
T. WALKER, UNITED STATES MAGISTRATE JUDGE.
Emanuel Resto (“Defendant”), proceeding pro se,
seeks to file this civil action without prepayment of fees
and costs or security therefore, pursuant to 28 U.S.C. §
1915(a)(1). (Doc. 1). Defendant's Affidavit of Poverty
indicates that Defendant is unable to pay the filing fee or
incur the costs of these proceedings. (Id.). Thus,
the requirements of 28 U.S.C. § 1915(a)(1) have been
satisfied, and Defendant's application for leave to
proceed in forma pauperis is hereby
GRANTED. (Doc. 1). For the reasons outlined
below, however, this Court RECOMMENDS that
this action be remanded to the Municipal Court of the City of
East Point, Georgia.
October 11, 2017, pursuant to the local ordinances of the
City of East Point, Georgia (the “City”), a
police officer for the City cited Defendant for disorderly
conduct. (Doc. 1-1, at 14). The incident occurred at a
restaurant called the Ubar, located at 3515 Camp Creek
Parkway, East Point, Georgia. (Id.). Per the
citation, Defendant was ordered to appear in the Municipal
Court of the City of East Point on December 4, 2017, to
answer for this charge. (Id.). It appears that
Defendant's court date was rescheduled for March 28,
2018. (Doc. 1-1, at 15). On that same day, Defendant removed
the matter to this Court. (See Doc. 1).
Defendant's removal petition is devoid of factual
allegations and is instead filled with nonsensical legal
theories and conclusions. Defendant argues in his removal
papers that this Court has jurisdiction over the matter under
28 U.S.C § 1331, 28 U.S.C. § 1367, 28 U.S.C.
§§ 1441(b)-(c), (e), 28. U.S.C. §§ 1443
(1)-(2), and 28 U.S.C. 1446(d). Defendant also alleges,
without explanation, that the Court has jurisdiction pursuant
to the Bill of Rights, various amendments to the United
States Constitution, the International Covenant on Civil and
Political Rights, and the Universal Declaration of Human
Rights. (Doc. 1-1, at 1-2).
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
Fed.Appx. 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 (1989). A claim is
frivolous when it appears from the ‘face of the
complaint' that the 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 (1975); see also Kopec v.
Jenkins, 357 Fed.Appx. 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 (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) (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).
case, it is readily apparent to the undersigned that the
Court lacks jurisdiction in this matter. Defendant's
shotgun removal petition 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. Defendant's removal petition simply alleges the
Municipal Court of the City of East Point, Georgia has
engaged in an unlawful pattern of “wrongful
arrest.” (Doc. 1-1, at 6). Accordingly, under the fats
of this case, Defendant's attempt to remove this criminal
action from the City of East Point should not be permitted.
See Georgia v. Harpo, No. 1:16-CV-2955-WSD, 2017 WL
461477, at *2 (N.D.Ga. Feb. 3, 2017), appeal
dismissed, No. 17-10992-E, 2017 WL 3923744 (11th Cir.
May 16, 2017) (finding that the court lacked jurisdiction to
hear the matter when the defendant failed to allege in his
removal petition that he was being prosecuted for exercising
a federally protected civil right to racial equality or that
a formal expression of state law had deprived him of a
federally protected right to racial equality).
on the foregoing reasons, Defendant's motion to proceed
in forma pauperis is GRANTED. (Doc.
1). Additionally, this Court RECOMMENDS that
action be remanded to the Municipal Court of the City of East
Point, Georgia. As this is a final Report and Recommendation
and there are no other matters pending before this Court, the
Clerk is directed to terminate the reference to the
IS SO ORDERED AND REPORTED AND RECOMMENDED.