United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
matter comes before the Court sua sponte pursuant to
Plaintiff's pro se pleading entitled
“Notice of Removal to federal Court” (Dkt. 1).
seeks to remove Pittsburg County District Court Case No.
CM-2017-00265 to this Court. Dkt. 1 at 1. Plaintiff alleges
“[t]he Pittsburg County District Court and officers
thereof have knowingly, willfully, and maliciously 
deprived [her of] her right to due process, ” (2)
“failed to prove jurisdiction, ” (3)
“falsified information placed on the official record,
” (4) “issued invalid warrants, ” (5)
“failed to produce a grand jury indictment, ” (6)
“failed to produce an affidavit of truth sworn under
pain and penalty of perjury by an injured party (corpus
dilecti) alleging damage or injury caused by [her], ”
(7) “fail[ed] to provide a remedy by which relief is
granted, ” (8) “depriv[ed] [her of] liberty
without conviction, ” (9) “fail[ed] to produce
proper identification, oaths and bonding information upon
request, ” and (10) “fail[ed] to produce valid
warrants upon request.” Id. at 1-2.
Plaintiff has not attached any actual state court pleadings
or filings in the underlying criminal case, the Court finds
it difficult to determine whether this pleading actually
“removes” an ongoing criminal proceeding or
whether the Court should construe the pleading as an original
complaint raising constitutional violations occurring in
conjunction with the criminal proceeding. Due to its title of
“Notice of Removal to federal Court” and
reference to a specific criminal proceeding by case number
and court, the Court construes the filing as one seeking to
remove a criminal proceeding to this Court.
attempted removal of her criminal case fails for three
reasons. First, Plaintiff fails to plead any statutory basis
for removal. Even with the benefit of liberal construction
afforded to pro se pleadings, see Hall v.
Bellmon, 935 F.2d 1106, 1110 (1991), the only possible
statutory basis for removal is 28 U.S.C. § 1443(1).
Section 1443(1) provides for removal of criminal prosecutions
from state court to federal court if a person “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 all of the persons within
the jurisdiction thereof.” 28 U.S.C. § 1443(1).
This provision, however, requires the removing party to
allege in the removal notice that (1) the right denied arises
under a civil rights law protecting against racial
discrimination, and (2) the right cannot be enforced in the
state prosecution. See Johnson v. Mississippi, 421
U.S. 213, 219 (1975); Colorado v. Lopez, 919 F.2d
131, 132 (10th Cir. 1990). Here, Plaintiff's allegations
are insufficient to satisfy the first requirement because, at
most, they suggest her “prosecution and conviction will
violate rights under constitutional . . . provisions of
general applicability.” Johnson, 421 U.S. at
219. Likewise, Plaintiff's allegations that the state
court or court officials have denied her requests for
production or other relief are insufficient to satisfy the
second requirement. See Id. (noting that second
requirement “normally requires that the denial be
manifest in a formal expression of state law, such as a state
legislative or constitutional provision, rather than a denial
first made manifest in the trial of the case” (internal
quotation marks and citations omitted) (quoting Georgia
v. Rachel, 384 U.S. 780, 799, 803 (1966)).
Plaintiff s removal notice is procedurally defective.
See 28 U.S.C. § 1455 (setting forth procedures
for removal of criminal proceedings). Plaintiff failed to
attach copies of “all process, pleadings, and orders
served upon” her in the criminal proceeding. See
Id. § 1455(a). Thus, the Court cannot determine
whether Plaintiff filed the removal notice within 30 days of
arraignment. See Id. § 1455(b)(1).
even if Plaintiff could overcome these substantive and
procedural deficiencies, she filed her notice of removal in
the wrong federal district court. Section § 1455(a)
requires a criminal defendant seeking removal to file a
notice of removal “in the district court of the United
States for the district and division within which [her]
prosecution is pending.” Plaintiffs criminal
prosecution is pending in Pittsburg County District Court
which is located in the Eastern District of Oklahoma.
See 28 U.S.C. § 116(b).
the Court construes Plaintiffs pro se pleading as an
attempted removal of Case No. CM-2017-00265, pending in
Pittsburg County District Court. As discussed, Plaintiffs
removal notice is substantively and procedurally defective
and she filed it in the wrong court. Because it
“clearly appears on the face of the notice . . . that
removal should not be permitted” the Court remands this
matter to Pittsburg County District Court.
IT IS HEREBY ORDERED that Case No CM-2017-00265 is
remanded to the District Court ...