Opinion
CASE NO. 16cv569-LAB (JMA)
03-09-2016
ALBERT PUENTE, Plaintiff, v. ALLAN B. MITCHELL, Defendant.
ORDER OF REMAND
Defendant Allan Mitchell, who is proceeding pro se, removed this unlawful detainer action from state court and filed a motion for leave to proceed in forma pauperis.
A district court must examine notices of removal and remand actions if the Court lacks jurisdiction. 28 U.S.C. § 1447(c); Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1211 (9th Cir. 1998).
Mitchell argues the Court has jurisdiction because he wishes to raise federal defenses or counterclaims. Federal defenses or counterclaims, however, do not give rise to federal jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 59 (2009).
He also argues removal is proper under relies on 28 U.S.C. § 1443, alleging unfair treatment by the state courts against him and other minority litigants in unlawful detainer actions. The Supreme Court has articulated a two-part test for examining actions removed under § 1443. First, the removing party must assert, as a defense, rights given to him by explicit statutory enactment protecting equal racial civil rights. See Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006) (citing Supreme Court and Ninth Circuit authority). Mitchell has not done this. Instead, he points to his rights under the U.S. Constitution and statutes protecting homeowners generally.
Second, the removing party must assert that state courts will not enforce that right, and support that allegation by reference to a state statute or a constitutional provision purporting to command the state courts to ignore the federal rights. Id. Mitchell has not done this either. Instead, he argues that California's state courts are rife with unofficial racism and bigotry. Merely charging state courts with racial bias does not satisfy this requirement.
Most of the notice of removal appears to have been cut and pasted from some other document. It is substantially identical to the equally frivolous notices of removal filed in 16cv384-LAB (NLS), Orozco v. Escalante (S.D. Cal., filed Feb. 16, 2016); and 16cv557-LAB (NLS), Village Mission Valley, LLC v. Veronica Valerio (S.D. Cal., filed March 4, 2016), even down to the typeface. Like the other two, this notice of removal is completely meritless.
This action is ORDERED REMANDED to the Superior Court of California for the County of San Diego, Central Division. The motion to proceed in forma pauperis is DENIED AS MOOT. The Court certifies that any appeal from this order would not be taken in good faith.
IT IS SO ORDERED. DATED: March 9, 2016
/s/_________
HONORABLE LARRY ALAN BURNS
United States District Judge