United States District Court, S.D. New York
ALVIN D. GONZALEZ, Plaintiff,
DARCEL D. CLARK, Bronx County District Attorney, Defendant.
ORDER OF DISMISSAL
COLLEEN McMAHON, CHIEF UNITED STATES DISTRICT JUDGE
D. Gonzalez, appearing pro se, filed this Notice of
Removal under 28 U.S.C. §§ 1441-1446, removing to
this Court his criminal proceedings pending in the Bronx
County Criminal Court. By order dated December 3, 2019, the
Court granted Plaintiff's request to proceed without
prepayment of fees, that is, in forma pauperis. For
the reasons set forth below, the Court remands this action to
the Bronx County Criminal Court.
Court must dismiss an in forma pauperis complaint,
or any portion of the complaint, that is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B);
see Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998). The Court must also dismiss a
complaint when the Court lacks subject matter jurisdiction.
See Fed. R. Civ. P. 12(h)(3).
the law mandates dismissal on any of these grounds, the court
is obliged to construe pro se pleadings liberally,
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and
interpret them to raise the “strongest [claims] that
they suggest, ” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks and citations omitted) (emphasis in
original). But the “special solicitude” in
pro se cases, id. at 475 (citation
omitted), has its limits - to state a claim, pro se
pleadings still must comply with Rule 8 of the Federal Rules
of Civil Procedure, which requires a complaint to make a
short and plain statement showing that the pleader is
entitled to relief.
submission, which he filed in this Court on November 12,
2019, consists almost entirely of legal jargon, may be
understood to assert that his due process rights are being
violated in his ongoing criminal proceedings in Bronx County
Criminal Court. Gonzalez is represented by counsel in those
proceedings. (ECF 1:19-CV-10542, 1 at 4.) According to the
New York State Office of Court Administration website,
Gonzalez was arrested on April 10, 2018, and arraigned on
April 11, 2018.
removing defendant has the burden of establishing that a case
is within the federal court's removal jurisdiction.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108 (1941). Because removal to federal court deprives
the state court of jurisdiction, “federal courts
construe the removal statute[s] narrowly, resolving any
doubts against removability.” Somlyo v. J. Lu-Rob
Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991);
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 109 (1941). If it clearly appears on the face of a
notice of removal that removal of a criminal case is
impermissible, the district court must summarily remand the
action to state court. 28 U.S.C. § 1455(4).
defendant removing a criminal action to a federal district
court is generally required to file a notice of removal in
the appropriate federal district court “not later than
30 days after the arraignment in the State court, or at any
time before trial, whichever is earlier.” 28 U.S.C.
§ 1455(b)(1). The criminal defendant must also file with
the notice of removal “a copy of all process,
pleadings, and orders served upon such defendant or
defendants in such action.” Id. “The
filing of a notice of removal of a criminal prosecution shall
not prevent the State court in which such prosecution is
pending from proceeding further, except that a judgment of
conviction shall not be entered unless the prosecution is
first remanded.” § 1455(b)(3).
has not complied with the procedural requirements for the
removal. The Notice of Removal does not plead facts showing
that it was filed within 30 days of arraignment and does not
include any information about or pleadings from the State
court criminal proceeding. Because the Notice of Removal does
not comply with the procedural requirements for removal, the
action must be remanded to state court. See 28
U.S.C. § 1455(b)(4).
Gonzalez had complied with the procedural requirements for
removal, his submission is bereft of facts suggesting that
removal of his state court criminal proceedings is proper. A
criminal prosecution commenced in State court against a
federal officer or member of the armed forces for actions
taken under the color of office may be removed to federal
court. 28 U.S.C. §§ 1442(a), 1442a. Criminal
prosecutions commenced in State court are also subject to
removal if the defendant “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.” 28 U.S.C. § 1443(1); see also Johnson
v. Mississippi, 421 U.S. 213, 219 (1975) (setting forth
two-prong test for removal of criminal prosecution where
defendant is denied equal civil rights).
does not allege that he is a federal officer or member of the
armed forces being prosecuted for actions taken under color
of office. He also does not allege that he cannot enforce in
the State court criminal proceedings a right to racial
equality that is being denied him. Gonzalez therefore ...