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Daniels v. Connell

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


September 3, 2008

JOHN DANIELS, PLAINTIFF,
v.
SUSAN A. CONNELL, SUPERINTENDENT OF THE ONEIDA CORRECTIONAL FACILITY, DEFENDANT.

The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

John Daniels, the petitioner in this action for a writ of habeas corpus under 28 U.S.C. § 2254, has filed a motion seeking to remove to this Court an action that he has filed, or attempted to file, in state court.*fn1 Daniels contends that the Court has authority under 28 U.S.C. § 1441 to remove the state court action, because "the facts of [the state court action] has [sic] a direct bearing" on his habeas corpus action in this Court.

Section 1441 confers no such authority on the Court, however. That section provides that the defendant in a state court action may remove the action to federal court, under certain circumstances. The law is clear, however, that a plaintiff cannot remove his own action from state to federal court. Hamilton v. Aetna Life and Cas. Co., 5 F.3d 642, 643 (2d Cir. 1993); Duverger v. C & C Duplicators, Inc., No. 08-CV-0721, 2008 WL 1734232, at *1 (E.D.N.Y. Apr. 10, 2008). The motion is therefore denied.

CONCLUSION

Petitioner's motion to remove (Dkt. #4) is denied. IT IS SO ORDERED.


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