United States District Court, D. Nebraska
KENNETH D. VOSS, Plaintiff,
THE STATE OF COLORADO, Defendant.
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
17, 2018, Kenneth D. Voss, proceeding pro se, filed a Notice
of Removal pursuant to 28 U.S.C. §§ 1441 and 1446.
(Filing 1) Attached to the Notice of Removal is an illegible
"Uniform Summons & Complaint or Penalty
Assessment" Voss alleges he was issued by a Colorado
State Trooper on June 17, 2018, citing him with driving a
motor vehicle without a safety belt in use, driving without a
valid driver's license, and failing to display valid
registration. Voss seeks to remove the case from the County
Court of Boca County, Colorado.
clerk of this court docketed the Notice of Removal as a civil
complaint filed pursuant to 42 U.S.C. § 1983
(i.e., as a civil rights action). Because Voss did
not pay the $400.00 filing and administrative fees or request
to proceed in forma pauperis ("IFP"), a standard
order was entered on July 19, 2018, requiring him to correct
the deficiency by August 2, 2018. (Filing 4) Voss thereafter
filed an IFP motion and, on August 1, 2018, was granted leave
to proceed without payment of fees. (Filings 5, 6)
appears, however, 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 Hattiesburs, 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).
federal statute governing the removal of criminal
prosecutions from state court to federal court states, 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.
extent Voss is requesting removal ofhis state criminal case
to this court, this matter will be summarily remanded to the
County Court of Boca County, Colorado, 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). Removal should not be permitted
for at least two reasons: First, the United States District
Court for the District of Nebraska is not the proper venue
for removal of a criminal case that is pending in Colorado.
See 28 U.S.C. § 1443(1). And, second, to
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.2d6l2, 614-15 (6th Cir.
1989) (citing Johnson v. Mississippi, 421 U.S. 213,
219 (1975)). 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.
extent Voss's 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's 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 law."). Thus, the case will be summarily dismissed
under 28 U.S.C. § 1915(e)(2) as frivolous and failing to
state a claim upon which relief may be granted.
1. To the extent Voss's Notice of Removal may be
construed as a civil complaint, it is dismissed without
prejudice for failure to state a claim upon which relief may
2. To the extent Voss is requesting removal of his state
criminal case to this court, his request is denied and this
case is remanded to the County ...