United States District Court, D. Nebraska
KENNETH D. VOSS, Plaintiff,
THE STATE OF NEBRASKA, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE
16, 2018, Kenneth D. Voss, proceeding pro se, filed a Notice
of Removal pursuant to 28 U.S.C. §§ 1441 and 1446.
(Filing No. 1.) Attached to the Notice of Removal is
a copy of a criminal complaint filed against Voss in the
County Court of Brown County, Nebraska, on or about January
17, 2018, for three traffic offenses. (Filing No. 1 at
CM/ECF p. 5.) The caption of Voss' Notice of Removal
indicates that Voss's criminal case in Brown County is
No. CR 18-26.
clerk of this court docketed the Notice of Removal as a civil
complaint filed pursuant to 42 U.S.C. § 1983 (i.e., a
civil rights action). On July 18, 2018, the court directed
Voss to pay the $400.00 filing and administrative fees or
request to proceed in forma pauperis within 30 days, in the
absence of which this case would be dismissed without further
notice. (Filing No. 4.) On July 30, 2018, Voss filed
a “Verified Application for Permission to Proceed In
Forma Pauperis.” (Filing No. 6.) Upon review
of Voss' motion, the court finds that Plaintiff is
financially eligible to proceed in forma pauperis.
court further finds that Voss should be relieved from payment
of the filing fee because it appears that Voss may be
attempting to remove his state criminal case to this court
pursuant to 28 U.S.C. §§ 1443 and 1455. A filing
fee is not required for the removal of a state criminal
prosecution to federal court. See Lefton v. City of
Hattiesburg, 333 F.2d 280, 285 (5th Cir. 1964).
defendant who wishes to remove a criminal prosecution from a
state court must file a notice of removal “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 . . . in such action.” 28
U.S.C. § 1455(a). In addition, “[a] notice of
removal of a criminal prosecution shall be filed not later
than 30 days after the arraignment in the State court, or any
time before trial, whichever is earlier, except that for good
cause shown the United States district court may enter an
order granting the defendant . . . leave to file the notice
at a later time.” 28 U.S.C. § 1455(b)(1). Further,
“[i]f it clearly appears on the face of the notice and
any exhibits annexed thereto that removal should not be
permitted, the court shall make an order for summary
remand.” 28 U.S.C. § 1455(b)(4).
federal statute governing the removal of criminal
prosecutions from state court to federal court provides, in
Any of the following civil actions or criminal prosecutions,
commenced in a State court may be removed by the defendant to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) Against 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.
demonstrate that removal is proper under § 1443(1), a
defendant “must show that he relies upon a law
providing for equal civil rights stated in terms of racial
equality.” Neal v. Wilson, 112 F.3d 351, 355
(8th Cir. 1997). Stated differently, “the right denied
defendant must be one that arises under a federal law that
provides for specific civil rights stated in terms of racial
equality, ” and “the defendant must be unable to
or be denied the opportunity to enforce these specified
federal rights in the courts of the state in question.”
Conrad v. Robinson, 871 F.2d 612, 614-15 (6th Cir.
1989) (citing Johnson v. Mississippi, 421 U.S. 213,
Voss does not allege he was denied any civil rights on racial
grounds or under a federal equal-rights law. Indeed, Voss
fails to allege any facts to explain why he believes removal
would be proper. Thus, to the extent Voss is requesting
removal of his state criminal case to this court, this matter
is summarily remanded to the County Court of Brown County,
Nebraska, because it “appears on the face of the notice
and any exhibits annexed thereto that removal should not be
permitted.” 28 U.S.C. § 1455(b)(4).
to the extent Voss' Notice of Removal may be construed as
a civil complaint under 42 U.S.C. § 1983, it fails to
set forth any plausible factual allegations suggesting a
violation of Voss' constitutional rights. See West v.
Atkins, 487 U.S. 42, 48 (1988) (“To state a claim
under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
Voss' Motion to Proceed In Forma Pauperis (filing ...