Opinion
CIVIL ACTION NO. 1:19-CV-1198
07-19-2019
TONY WERDEBACH, Plaintiff v. M.L. EBERT, et al., Defendants
(BRANN, D.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
On July 15, 2019, Tony Werdebach filed a Notice of Removal requesting that the following three pending State court criminal cases be removed to this Court pursuant to 28 U.S.C. § 1455: Commonwealth v. Werdebach, CP-21-CR-0519-2018 (C.P. Cumberland Cty.); Commonwealth v. Werdebach, CP-21-CR-0524-2018 (C.P. Cumberland Cty.); and Commonwealth v. Werdebach, CP-21-CR-0590-2018 (C.P. Cumberland Cty.). As Defendants, Mr. Werderbach named M.L. Ebert (the Cumberland County District Attorney) and Cumberland County. Mr. Werdebach paid the filing fee.
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. See In re U.S. Healthcare, 159 F.3d 142 (3d Cir. 1998) (holding that a remand order is a dispositive motion for the purposes of 28 U.S.C. § 636(b)(1)). For the reasons stated herein IT IS RECOMMENDED that this case be SUMMARILY REMANDED to the Cumberland County Court of Common Pleas pursuant to 28 U.S.C. § 1455(b)(4). II. LEGAL STANDARD FOR THE REMOVAL OF STATE COURT CRIMINAL PROCEEDINGS
Section 1455 of Title 28 of the United States Code sets out the procedure for removal of criminal prosecutions from state court. It provides, in relevant part, that:
A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.28 U.S.C. § 1455(a). The procedure for removal of a criminal prosecution from state court is outlined in 28 U.S.C. § 1455(b). This section requires that "[a] notice of removal of a criminal prosecution shall include all grounds for such removal." 28 U.S.C. § 1455(b)(2).
The substantive grounds for removal are set out in 28 U.S.C. §§ 1442, 1442a, and 1443. Section 1442 allows for removal of state criminal prosecutions in certain instances against federal officers or agencies. Similarly, Section 1442a allows for removal of certain state court criminal prosecutions against members of the armed forces.
Section 1443 allows for removal in two situations. First, Section 1443(1) authorizes the removal of a state law criminal action "[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." 28 U.S.C. § 1443(1). The Third Circuit Court of Appeals explained that:
For this provision to apply, "a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law 'providing for ... equal civil rights'; and (2) that he is denied or cannot enforce that right in the courts of the state." Davis v. Glanton, 107 F.3d [1044,] 1047 [3d Cir.1997] (quoting State of Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)). Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law "providing for specific civil rights stated in terms of racial equality." Id. (internal citations and quotations omitted). Under the second requirement, removal is available where the defendant's federal civil rights would "inevitably be denied by the very action of being brought to trial in state court." Id. at 1049 (internal citations and quotations omitted).Commonwealth of Pennsylvania v. Randolph, 464 F. App'x 46, 47 (3d Cir. 2012) (per curiam) (non-precedential). Second, Section 1443(2) authorizes removal of a state court criminal prosecution "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(2). This subsection "confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights." Randolph, 464 F. App'x at 47 (quoting City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 (1966)) (internal quotation marks omitted).
Finally, Section 1455 requires that "[t]he United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal shall not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1455(b)(4). III. ANALYSIS
Mr. Werdebach satisfies none of the substantive criteria for removal of a criminal prosecution. Mr. Werdebach is not a federal officer, a state officer, or a member of the armed forces. Mr. Werdebach is being prosecuted for drug-related offenses, not because he was authorized to act with or for the federal government in affirmatively executing duties under any federal law providing for equal civil rights. Thus, the only possible substantive basis for removal of the three pending criminal cases is 28 U.S.C. § 1443(1).
As discussed above, for Section 1443(1) to apply, a state court defendant must demonstrate both: (1) that he is being deprived of a right guaranteed by a federal law providing for equal civil rights; and (2) that he is denied or cannot enforce that right in the courts of the state. Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997).
As the Third Circuit has summarized:
the removal permitted by 28 U.S.C. § 1443 is narrow. Under subparagraph (1), removal is permitted only by a defendant "who is denied or cannot enforce" in the state courts "a right under any law providing for the equal civil rights" of such persons. 28 U.S.C. § 1443(1). Where the party seeking removal asserts the violation of his constitutional rights phrased in terms of general rights applicable to all citizens, rather than provisions couched in the specific language of racial equality, there is no basis for removal of an action to federal court. Rachel, 384 U.S. at 792; Davis, 107 F.3d at 1047. Thus, a defendant seeking to remove a case under § 1443(1) must demonstrate that the rights claimed arise under a provision of the Constitution or federal law specifically designed to promote racial equality , and must also specifically allege that he has been denied or cannot enforce in the state court the right that was created by the civil rights law under which he seeks protection. The allegation of illegal or corrupt acts of individual state officials that might be corrected by the state judiciary, or the mere possibility of an unfair trial in state court, will not justify removal to the federal court under § 1443(1). City of Greenwood v. Peacock, 384 U.S. 808, 829-30 (1966).Pennsylvania v. Brown-Bey, 637 F. App'x 686 (3d Cir. 2016) (emphasis added). Mr. Werdebach has not alleged a "deprivation of rights guaranteed by federal law 'providing for specific civil rights stated in terms of racial equality.'" Randolph, 464 F. App'x at 47 (quoting Davis, 107 F.3d at 1047 (3d Cir. 1997)). In fact, there is no discussion of racial equality in the Notice of Removal. Therefore, Mr. Werdebach is not entitled to removal under 28 U.S.C. § 1443(1). IV. RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that:
(1) This case be SUMMARILY REMANDED back to the Cumberland County Court of Common Pleas pursuant to 28 U.S.C. § 1455(b)(4); andDate: July 19, 2019
(2) The Clerk of Court CLOSE this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: Click here to enter a date.
BY THE COURT
S/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge