United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, Judge.
matter is before the Court on Petitioner/Defendant Timothy
Augustus Ward's (hereinafter, Petitioner) notice of
removal (DN 1) of a state court criminal proceeding to
federal court pursuant to 28 U.S.C. § 1455. For the
reasons that follow, the Court will dismiss the notice of
removal and remand the matter to state court.
notice of removal, Petitioner seeks to remove Hardin County
District Court Case Number 16-M-01191. He states, “This
case is removable pursuant to 28 U.S C. § 1455, because
the defendant, allege causes of action arising from the
deprivation of rights, privileges, and immunities secured to
me as a citizen of the commonwealth of Kentucky and the
United States Constitution ‘Amendment 1, '
‘Amendment 4, ' ‘Amendment 5, '
‘Amendment 6, ' ‘Amendment 8, '
‘Amendment 14'.” (Emphasis by
Petitioner). He asserts that he “was arrested after he
used profanity at a Kentucky State Trooper, Ward also states
he subjected to cruel and unusual punishment pursuant to the
Eighth Amendments.” Petitioner maintains that he has
“the right to insult a Trooper under the First
Amendment. . . . Trooper Kenneth Joseph Border continued to
tase Ward after he used profanity at him.” He further
alleges that his “right to be free from retaliatory
arrest after insulting an officer was clearly
established.” He also asserts that “a reasonable
officer could not conclude that Ward's outburst provided
probable cause for his arrest. . . . Ward's actions
leading up to the unlawful arrest was protected speech under
the First Amendment. Respondents' has simply assumed that
Ward's actions constituted disorderly conduct.” The
notice of removal includes a discussion of case law
concerning protected speech under the First Amendment.
Petitioner further asserts that the state court judge has
violated his rights, and he requests an evidentiary hearing
before this Court.
support of removal, Petitioner cites 28 U.S.C. § 1455,
which provides a procedure for removal of a criminal
prosecution. While § 1455 governs the procedure
for removal, it does not authorize the substantive
right of removal. Rather, a state defendant may remove his
criminal prosecution only as provided in 28 U.S.C. §
1443. This section permits removal of a criminal action by a
(1) Against any person who is denied or cannot enforce in the
courts of [a] 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;
(2) For any act under color of authority derived from any law
providing for equal rights, or for refusing to do any act on
the ground that it would be inconsistent with such law.
28 U.S.C. § 1443.
respect to subsection (1), a removal petition must satisfy a
two-pronged test. See Johnson v.
Mississippi, 421 U.S. 213 (1975). “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.'”
Id. at 219 (quoting Georgia v. Rachel, 384
U.S. 780, 792 (1966)).
Claims that prosecution and conviction will violate rights
under constitutional or statutory provisions of general
applicability or under statutes not protecting against racial
discrimination, will not suffice. That a removal petitioner
will be denied due process of law because the criminal law
under which he 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 City of Greenwood v. Peacock,
384 U.S. 808, 825 (1966)). Second, a petitioner must show
that he cannot enforce the specified federal right in state
court. Id. “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 Rachel, 384 U.S.
at 799, 803) (internal quotation marks omitted).
notice of removal neither alleges racial inequality nor that
there is a formal expression of state law preventing him from
enforcing his rights in state court. Rather, it appears from
the notice that he believes that the state court officials
have acted improperly in his case alone. This is insufficient
to justify removal. “Under § 1443(1), the
vindication of the defendant's federal rights is left to
the state courts except in the rare situations where 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.”
Greenwood, 384 U.S. at 827. Because Petitioner has
alleged only improper actions by select state officials
allegedly operating outside of the law, he must seek
vindication of his rights through the state appellate courts.
For these reasons, removal is not proper under §
does Petitioner's criminal action satisfy the alternative
bases for removal under § 1443(2). “The first
clause [of subsection (2)], ‘for any act under color of
authority derived from any law providing for equal
rights' has been examined and held available only to
federal officers and to persons assisting such officers in
the performance of their official duties.”
DetroitPolice Lieutenants and Sergeants
Ass'n v. City of Detroit,597 F.2d 566, 568 (6th
Cir. 1979) (citing Greenwood, 384 U.S. at 815). As
to the second clause of § 1443(2), “[i]t is clear
that removal under that language is available only to state
officers.” Greenwood, 384 U.S. at 824 n.22;
Detroit Police Lieutenants and Sergeants Ass 'n,
597 F.2d at 568 (“We believe that this provision of the
statute was designed to protect state officers from being
penalized for failing to enforce discriminatory state laws or