Opinion
4:23-CV-67-M-BM
11-14-2023
STATE OF NORTH CAROLINA, ONSLOW COUNTY COURT et al, Plaintiffs, v. WILLIAM HERCULES DAVIS, JR., Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers, United States Magistrate Judge
This pro se case is before the court on the amended application by defendant William Hercules Davis, Jr. (“defendant” or “Davis”) to proceed in forma pauperis [D.E. 5] pursuant to 28 U.S.C. § 1915(a)(1) (“application”) and for a jurisdictional review of defendant's notice of removal [D.E. 1] pursuant to 28 U.S.C. § 1915(e)(2)(B). These matters were referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) for a memorandum and recommendation. See [Public Entry dated April 24, 2023]. On April 24, 2023, the undersigned issued an order of deficiency directing the defendant to correct multiple issues in his original application to proceed in forma pauperis [D.E. 2], no later than May 9, 2023. [D.E. 3]. On May 5, 2023, the defendant filed a Notice of Self-Representation [D.E. 4], a new Motion for Leave to Proceed in forma pauperis [D.E. 5], a civil cover sheet [D.E. 6], and a notice of claim of sovereign citizenship [D.E. 7], ostensibly in support of the notice of removal [D.E. 1].
To the extent that plaintiff's contention that “[r]emoval is in fact . . . [a] question[] for a trail [sic] by jury to decide only against the plaintiffs named above, not a Magistrate Judge” ([D.E. 1] at 2) can be construed as an objection to the undersigned's authority to provide a memorandum and recommendation on this matter, this motion is properly before the undersigned United States magistrate judge for a memorandum and recommendation. See [Public Entry dated April 24, 2023]. Section 636(b)(1) provides that:
(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement....28 U.S.C. § 636(b)(1).
The court finds that the defendant has demonstrated appropriate evidence of his inability to pay the required court costs, and the application to proceed in forma pauperis [D.E. 5] will be ALLOWED. However, for the reasons set forth below, the undersigned RECOMMENDS that the court REMAND this case to the state court in Onslow County, North Carolina.
ORDER ON IN FORMA PAUPERIS MOTION
To qualify for in forma pauperis status, a person must show that he “cannot because of his poverty pay or give security for the costs . . . and still be able to provide himself and dependents with the necessities of life.” See Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948) (internal quotation marks omitted). Based on the information in the motion to proceed in forma pauperis, the court finds that defendant has adequately demonstrated his inability to prepay the required court costs. Defendant's second motion to proceed in forma pauperis [D.E. 5] is therefore ALLOWED.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. NOTICE OF REMOVAL
Defendant's notice of removal [D.E. 1] and his notice of claim of sovereign citizenship [D.E. 7] are not a model of clarity and consist of dozens of pages of incoherent legal jargon, case citations, baseless pronouncements, and legal demands. See, e.g., [D.E. 7] at 8 (“Failure to comply will be your Conditional Acceptance Affidavit (Writ of Injunction) to have a claim/common-law lean filed against each of the Trespassers Et al listed is [sic] this Conditional Acceptance in the amount of twenty one Million $21,000,000.00 by not answering fully and accompanied by Lawfully documented factual evidence, as provided herein, will factually establish your admission (confession) and a Default on Trespassers Et al named above.”); cf. Cush-El v. State, No. 1:16CV176, 2016 WL 1212427, at *2 (M.D. N.C. Mar. 10, 2016) (recommending dismissal of complaint wherein “[p]laintiff recites claims that consist largely of incomprehensible ramblings composed of commercial and legal doctrines”), rep. & recomm. adopted, 2016 WL 1228626 (Mar. 28, 2016).
Although difficult to discern, defendant appears to attempt to remove his state court proceedings surrounding a traffic citation (see [D.E. 1] at 1) to federal court under 42 U.S.C. § 1441(a); 28 U.S.C. § 1446 or 28 U.S.C. § 1455, arguing that removal is authorized under because his case raises questions of federal law, specially 42 U.S.C. § 1981 and “United States Constitution, the laws of the United States, specifically, the right to a common Law trial by jury of ones [sic] peers.” See [D.E. 1] at 1-2.
None of the reasons cited by defendant provides a valid basis for removal, as discussed below.
1. Sections 1441 and 1446
28 U.S.C. §§ 1441 and 1446 apply only to civil actions. See 28 U.S.C. § 1441(a) (providing that, with limited exceptions not applicable here, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants . . .”) (emphasis added); 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil action from a State court . . .”) (emphasis added). As defendant is attempting to remove a criminal case, Sections 1441 and 1446 are inapplicable and any attempt to remove on these bases must fail.
2. Sections 1455 and 1443
§ 1455 is a statute governing the procedures for removal of criminal proceedings but does not provide an independent basis for federal jurisdiction over criminal cases. See 28 U.S.C. § 1455 (“Procedure for removal of criminal prosecutions”). To proceed in this court, defendant will need to show that removal is proper under a statute allowing removal of criminal proceedings to federal courts. See 28 U.S.C. §§ 1442-43.
Of the available statutes, only 28 U.S.C. § 1443(1) could apply here. Section 1443(1) provides that a state criminal case may be removed to federal court if it is brought “[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[.]” To satisfy the statute, a state defendant must first show that “the right allegedly denied [him] arises under a federal law providing for specific civil rights stated in terms of racial equality.” Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (citation and internal quotation marks omitted). If so, the state defendant must next demonstrate that he “is denied or cannot enforce the specified federal rights in the courts of (the) State.” Id. (alteration in original) (citation and internal quotation marks omitted). A federal court must remand the case back to state court if either prong of this two-step analysis is not satisfied. 28 U.S.C. § 1455(b)(4).
The defendant has not shown that removal is warranted under 28 U.S.C. § 1443(1). Although his notice of removal contains numerous citations to federal statutes and court cases, he makes no claim that he has been denied the right to racial equality. Even if he had, defendant does not explain why he is unable to vindicate his rights in state court. Accordingly, defendant has failed to show any valid basis for removing his criminal proceedings to federal court.
To the extent that defendant attempts to assert 42 U.S.C. § 1981 or other federal constitutional or statutory provisions as defenses or counterclaims, the court notes that a “[d]efendant [may not] assert a civil counterclaim or defense such as a constitutional claim . . . as part of the removed criminal cases.” South Carolina v. Brooks, No. CV 5:21-3155-BHH-MHC, 2021 WL 9553011, at *3 (D.S.C. Oct. 25, 2021), report and recommendation adopted, No. CV 5:21-3155-BHH, 2022 WL 4129393 (D.S.C. Sept. 12, 2022) (citing Connecticut v. Parks, No. CIV.A 3:09-R-1(JCH), 2009 WL 3248654, at *2 (D. Conn. Oct. 5, 2009)); 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) (“The only claim at issue is plaintiff's prosecution of defendant in North Carolina state court for a speeding violation. Defendant seeks removal presumably because she intends to raise a federal defense, but that is not a proper basis for federal jurisdiction.”).
If defendant has a civil cause of action arising from the same events, he will need to file a separate civil complaint to vindicate any such claims.
However, the undersigned notes that claims similar to those that defendant espouses here, based on sovereign citizen contract theory and immunity to traffic laws, have been consistently rejected across the country. See, e.g., Estell El ex rel. Whitaker v. City of Greensboro, N.C. , No. 1:22-CV-48, 2022 WL 2915473, at *3 n.2 (M.D. N.C. July 12, 2022), aff'd, No. 22-1790, 2022 WL 17581957 (4th Cir. Dec. 12, 2022) (“[The plaintiff, who is potentially associated sovereign citizens] appears to be alleging that being given a traffic ticket in a name she contends is not her own creates a contract, but that is nonsensical.”); Pleasant-Bey v. City of Baltimore, No. CV DKC-16-3879, 2016 WL 7491624, at *2 (D. Md. Dec. 30, 2016), aff'd, 690 Fed.Appx. 115 (4th Cir. 2017) (noting consistent rejection of the sovereign citizen argument that “citizenship is grounded in a contract between each citizen and the federal government-a contract that may be cancelled by renouncing citizenship.”); Berry v. City of St. Louis et al., No. 4:21-CV-685 RLW, 2021 WL 4191612, at *5 (E.D. Mo. Sept. 15, 2021), motion for relief from judgment denied sub nom. Berry v. City of St. Louis, No. 4:21-CV-685 RLW, 2021 WL 5823714 (E.D. Mo. Dec. 8, 2021) (“Courts have routinely denied sovereign citizen claims based on a right to travel.) (citing numerous cases); El-Bey v. City of Greensboro, No. 1:10CV291, 2010 WL 3242193, at *1 (M.D. N.C. Aug. 16, 2010), report and recommendation adopted as modified for other reasons, No. 1:10CV291, 2011 WL 255719 (M.D. N.C. Jan. 25, 2011) (“All of [plaintiff's] claims[, including attempted kidnaping, threat of extortion, collusion, coercion and obstruction of justice without due process of law, false arrest and imprisonment and copyright violation] should be dismissed as either frivolous and/or for failure to state a claim, as none of these claims can conceivably arise from Plaintiff's factual allegations: that he was given a traffic ticket for an expired vehicle registration and for driving without an operator's license”); King v. Moody, No. 4:21CV3119, 2021 WL 5395893, at *2 (D. Neb. Nov. 17, 2021) (rejecting plaintiff's arguments that “Nebraska laws requiring proof of financial responsibility, vehicle registration, and an operator's license in order to drive a vehicle do not apply to him, and he should not be subject to consequences for breaking such laws”); Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915) (“In the absence of national legislation covering the subject, a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles,-those moving in interstate commerce as well as others. And to this end it may require the registration of such vehicles and the licensing of their drivers . . .”).
Defendant has not shown that removal is warranted. Therefore, the undersigned RECOMMENDS that the district court REMAND defendant's North Carolina criminal case to North Carolina court.
II. CONCLUSION
For the reasons set forth above, the court GRANTS defendant's motion to proceed in forma pauperis [D.E. 5]. However, because defendant has not demonstrated that removal is proper, the undersigned RECOMMENDS that the court REMAND this case to the state court in Onslow County, North Carolina.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on defendant. Defendant shall have until December 4, 2023, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the Magistrate Judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If defendant does not file written objections by the foregoing deadline, defendant will be giving up the right to review of the Memorandum and Recommendation by the presiding District Judge as described above, and the presiding District Judge may enter an order or judgment based on the Memorandum and Recommendation without such review, subject to the District Judge's consideration of any separate memorandum defendant files on the issue of entry of a pre-filing injunction. In addition, defendant's failure to file written objections by the foregoing deadline will bar defendant from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).