Opinion
C/A 3:23-cv-00783-MGL-SVH
03-28-2023
South Carolina Department of Public Safety, Plaintiff, v. Jerome Garcia, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Jerome Garcia (“Defendant”), proceeding pro se and in forma pauperis, filed a notice of removal of criminal traffic violations. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such cases for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge remand the case for lack of subject matter jurisdiction.
Although Defendant listed himself as a Plaintiff and the South Carolina Department of Public Safety as Defendant, removal does not affect the procedural posture of the case. Similarly, Defendant may not add additional defendants to a removed case. Therefore, the undersigned has not included Diane S. Goodstein or the Court of Appeals as defendants.
I. Factual and Procedural Background
Defendant alleges this case “arises under or involves a federal statute or U.S. constitutional question pertaining to the Bill of Rights of the Plaintiff, but also the 6th amendment, 1st amendment and 14th amendment infringements.” [ECF No. 1 at 1]. He captioned his Notice of Removal with “C/A No.: 2021CP0900216.” Defendant also attached a “Notice of Case Scheduling” for his appeal. A review of the state case reveals Defendant appealed to the South Carolina Court of Common Pleas for Calhoun County the criminal charges adjudicated in the St. Matthews Magistrate Court for Calhoun County at C/A No. 20192410977926, -7927, -7928.
See https://publicindex.sccourts.org/Calhoun/PublicIndex/CaseDetails.aspx? County=09&CourtAgency=09002&Casenum=2021CP0900216&CaseType=V &HKey=122116991158710584831206911710810043431141065474105695775 1181047211276851224883887797991146548881159948 (Last visited March 8, 2023). A court may take judicial notice of factual information located in postings on government websites. See Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (court may “properly take judicial notice of matters of public record”).
II. Discussion
A. Standard of Review
Defendant filed the notice of removal pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
B. Analysis
Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no such ground appears.” Id. at 352; see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
Defendant seeks to remove his pending state criminal case and appeal to this court. [ECF No. 1]. Although there are limited circumstances where a criminal prosecution may be removed to this court, see 28 U.S.C. §§ 1442, 1442a, and 1443, Defendant has failed to allege facts to establish that his criminal case fits into the narrow exceptions permitted by these statutes. See South Carolina v. Guidetti, C/A No. 6:11-3365-HMH-JDA, 2011 WL 6979991, at *2 (D.S.C. Dec. 20, 2011), adopted by 2012 WL 78793 (D.S.C. Jan. 10, 2012); North Carolina v. Ledgester, No. 4:11-MJ-1082, 2011 WL 2559792, at *1 (E.D. N.C. June 28, 2011).
Defendant cites to 28 U.S.C. § 1441, but this statute applies only to civil cases. To qualify for removal pursuant to § 1442, a removing party must establish that he is an officer of the United States or a person acting under an officer of the United States. 28 U.S.C. § 1442. Removal under § 1442a requires a removing party to show, among other things, that he is a member of the armed forces of the United States. 28 U.S.C. § 1442a. To remove an action under § 1443, a removing party must allege, in part, the denial of a right which “arises under a federal law that provides for specific civil rights stated in terms of racial equality ....” Bald Head Ass'n v. Curnin, No. 7:09-CV173-F, 2010 WL 1904268, at *5 (E.D. N.C. May 10, 2010).
Defendant's notice of removal does not allege he is an officer of the United States, a person acting under such an officer, or a member of the armed forces of the United States as required for removal under §§ 1442, 1442a. Further, Defendant provides no factual allegations to demonstrate that his rights to racial equality have been violated in relation to the state criminal court proceedings. 28 U.S.C. § 1443; see also North Carolina v. El-Bey, No. 5:10-CV-246-FL, 2010 WL 3860392, at *2 (E.D. N.C. Sept. 28, 2010) (remanding state court speeding case for lack of jurisdiction under § 1443). court actions pursuant to 28 U.S.C. § 1331. However, by its own terms, 28 U.S.C. § 1331 only applies to civil actions.
To the extent Defendant attempts to raise a defense to the criminal action by challenging the subject matter and personal jurisdiction of the Richland County Court of General Sessions, such defenses do not establish removal jurisdiction. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986); Cook v. Georgetown Steel Corp., 770 F.2d 1272, 1275 (4th Cir. 1985) (“A federal defense to a state cause of action is not sufficient to invoke federal jurisdiction.”). Because Defendant fails to establish this court's subject matter jurisdiction over the state criminal case he seeks to remove, his complaint is subject to summary dismissal.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court remand this case to the Court of Common Pleas for Calhoun County.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).