Opinion
Case No.: 2:20-cv-00444-APG-NJK
03-20-2020
STATE OF NEVADA, Plaintiff(s), v. MICHAEL G. BAGDON, Defendant(s).
REPORT & RECOMMENDATION
(Docket No. 1)
District courts have the authority to dismiss cases sua sponte without notice to a party when that party "cannot possibly win relief." Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988).
When a plaintiff seeks to proceed in forma pauperis, courts screen the complaint to ensure that a claim for relief has been stated. 28 U.S.C. § 1915(e). Here, Defendant filed an incomplete application to proceed in forma pauperis, failing to file the affidavit required by 28 U.S.C. § 1915(a), showing an inability to prepay fees and costs or give security for them. See Docket No. 1. However, given the Court's separate ability to dismiss the complaint pursuant to the authority cited above, the Court need not address whether Defendant qualifies to proceed in forma pauperis before dismissing his case. --------
Pending before the Court is Defendant's notice of removal. Docket No. 1-1. He appears to be trying to remove his state court criminal case to this court. See id. "Federal courts are courts of limited jurisdiction . . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Defendant submits that the Court has jurisdiction over this case based on 18 U.S.C. § 3 and 28 U.S.C. § 1441. Docket No. 1-1 at 1. However, neither statute is applicable: § 3 does not pertain to removal jurisdiction and § 1441 pertains to removal of civil cases.
A state court prosecution may be removed by a defendant under limited circumstances, including if the defendant is an officer of the United States and the action arises from acts done under the color of office or status. See 28 U.S.C. §§ 1442(a), 1442(d). Additionally, a defendant may remove a criminal case to this court if he seeks to assert a defense to the prosecution based on federal laws protecting equal civil rights and cannot do so under state law. See 28 U.S.C. § 1443. Defendant fails to make any of these allegations.
Defendant may not cure this deficiency by filing a second notice of removal, stating other grounds justifying removal: "A failure to state grounds that exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice." 28 U.S.C. § 1455(b)(2).
Accordingly, the undersigned RECOMMENDS that this case be DISMISSED without prejudice to Defendant seeking appropriate relief in an appropriate venue.
IT IS SO ORDERED.
Dated: March 20, 2020
/s/_________
Nancy J. Koppe
United States Magistrate Judge