UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
July 28, 2009
THE PEOPLE OF THE STATE OF NEW YORK, FICTITIOUS PLAINTIFF; AND TOWN OF LLOYD COURT, FICTITIOUS PLAINTIFF, PLAINTIFFS,
ED PARENTEAU, ALLEGED DEFENDANT; ED-GEORGE, FOR THE FAMILY-PARENTEAU, STEWARD FOR THE TRUSTEE, DEFENDANTS.
The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
DECISION and ORDER
Currently pending before the Court in this alleged civil rights action, which was removed from state court by Ed Parenteau a/k/a "ed-george" ("Defendant"), is a Report-Recommendation by Magistrate Judge David R. Homer recommending that Defendant's notice of removal be dismissed, and that the action be remanded to state court. (Dkt. No. 5.) Defendant has filed a timely Objection to the Report-Recommendation. (Dkt. Nos. 6, 7.) For the reasons stated below, the Court adopts the Report-Recommendation as modified, and remands this matter to state court.
I. STANDARD OF REVIEW
When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1
When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Familiarity with the grounds of Magistrate Judge Homer's Report-Recommendation is assumed in this Decision and Order, and only those facts necessary to the discussion will be set forth herein.
In his Objections to the Report-Recommendation, Defendant attempts to cure two of the deficiencies in the removal process identified in the Report-Recommendation by attaching (1) a copy of the complaint in the action removed from state court (dated March 4, 2009), and (2) an amended notice of removal. (Dkt. No. 7 at 3.) It appears that the amended notice of removal (filed on July 10, 2009) was filed within the thirty (30) day deadline for amended notices of removal established by 28 U.S.C. § 1446(b). However, it is questionable whether the original notice of removal (filed on June 15, 2009) was filed within thirty (30) days of Defendant's arraignment in state court, as required by 28 U.S.C. § 1446(c)(1).
In any event, the larger problem with Defendant's removal of this action is that neither the filing of the amended notice of removal nor the attachment of the complaint in the underlying action cures the deficiency in the removal process. Contrary to Defendant's characterization of the underlying action as a "civil rights action," the underlying action is, in fact, a criminal prosecution for false personation, pursuant to New York Penal Law § 190.23 (a Class A Misdemeanor), pending in New York State Justice Court for the Town of Lloyd (Case # 2009-1072), arising from his responses to questions from a town police officer in Highland, New York, on March 4, 2009. (Dkt. No. 7 at 3.) Of course, criminal prosecutions can be removed to federal court. 28 U.S.C. 1446(c). However, as set forth in Section 1446(c), a district court has the authority "to conclude, on the face of the notice for removal, that removal should not be permitted . . . ." New York v. Soms, 01-CV-5062, 2001 WL 699059, at *1 (S.D.N.Y. June 20, 2001).
More specifically, "Section 1446 of Title 28 details the procedure by which a defendant may seek to remove a civil action or criminal prosecution from State court." Brody v. New York State Div. of Parole, 89-CV-0987, 1989 WL 87003, at *1 (E.D.N.Y. July 25, 1989). "A successful petition for removal . . . must allege a proper basis for removal under [S]sections 1441 through 1445 of Title 28." Brody, 1989 WL 87003, at *1. It should be noted that the Eastern District of New York found that Section 1443(1) was "the only possible basis for removal of petitioner's case," because "Section 1441 applies to civil actions only[,] . . . [S]sections 1442 and 1442a apply only to criminal prosecutions involving federal officials, of which petitioner [was] not one[,] . . . [S]section 1445 applies to foreclosures against the United States," and Section 1444 applies only to actions action brought under Section 2410 of Title 28 (which was not relevant to the action). Id.*fn3 The Eastern District explained that Section 1443(1) "allows removal of criminal prosecutions commenced in State court against any person who is denied or cannot enforce in the State courts a right under any law providing for the equal civil rights of citizens of the United States." Id. (citation omitted). The Eastern District also explained that, "[i]n Georgia v. Rachel, 384 U.S. 791 (1966), the [Supreme] Court held that the right allegedly denied must arise under a federal law 'providing for specific civil rights stated in terms of racial equality.'" Id. (citing Rachel, 384 U.S. at 795).
Here, as in Brody, Defendant "does not allege that he is a member of a racial minority, nor that he was engaged in any form of civil rights activity" when he was arrested for false personation. Id. Moreover, "[h]e does not claim that any federal statute specifically precludes New York from prosecuting him for [false personation]." Id.; see also Soms, 2001 WL 699059, at *1 (where petitioner's "notice of removal does not reflect the grounds under which he seeks to remove this action," with the notice of removal instead making only an unsubstantiated, "conclusory assertion that his rights under [certain federal statutes] have been violated," remand to state court is appropriate).
Rather, the bases for Defendant's removal in this action are as follows: (1) the State of New York ("the State") had no authority to charge him with criminal personation because both the State and his name "Ed Parenteau" are "frauds" and/or "fictions"; (2) the State never served "ed-george" with a "Verified, Valid [and] Lawful" criminal complaint; (3) the prosecutor never produced "a real party in interest or a damaged party," only the "fiction[al]" State of New York; and (4) the judge presiding over the underlying action lacks jurisdiction over Defendant's criminal prosecution because the State is a "non-existent party" and "a fraud," and because the action has ended due to the prosecutor's failure to prosecute it. (Dkt. No. 1, Part 1; Dkt. No. 7 at 1-2.)*fn4
Under the circumstances, even if the Court were to find that Defendant filed his original notice of removal in a timely manner, the Court finds that the face of the amended notice of removal, and exhibits thereto, clearly indicates that removal should not be permitted. Indeed, the Court finds that Defendant's asserted grounds for removal appear so lacking in merit arguable bases in either law or fact as to be frivolous.*fn5 The Court notes that a magistrate judge in this District previously rejected as delusional a claim similar to Defendant's claim that his name is not "Ed Parenteau" but "ed-george: for the family parenetau." See U.S. v. Patterson, 04-CR-0030, Order (N.D.N.Y. Nov. 18, 2004) (Lowe, M.J.) (concluding there was reasonable cause to believe defendant, named Richard Graham Patterson, may be suffering from mental illness, sufficient to warrant competency examination, based in part on defendant's "irrational submissions" to the court, which included documents signed, "Richard Graham: family of Patterson").*fn6
As a result, even considering Defendant's amended notice of removal (submitted for the first time during his Objections to Magistrate Judge Homer's Report-Recommendation), the Court adopts that Report-Recommendation on de novo review. The Court notes that, because Defendant has already amended his notice of removal, and because the grounds asserted in his amended notice of removal are frivolous, no further amendment (or hearing) is necessary.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 5) is ACCEPTED and ADOPTED as modified by the Court's consideration of Defendant's amended notice of removal; and it is further
ORDERED that Petitioner's notice of removal (Dkt. No. 1), as amended by Petitioner's amended notice of removal (Dkt. No. 7), is DISMISSED and this matter is REMANDED to the state court in which the proceeding was commenced.
The Court hereby certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from the Court's Decision and Order in this action would not be taken in good faith.