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SHELLY v. PENNSYLVANIA

June 7, 1978

TERRY LEE SHELLY, Petitioner
v.
COMMONWEALTH OF PENNSYLVANIA, Respondent


Herman


The opinion of the court was delivered by: HERMAN

The matter before the Court is the Commonwealth's Motion For Remand which will be granted.

 Terry Lee Shelly petitioned this Court for removal of a civil action against him and others which had been initiated in the Court of Common Pleas of Adams County, Pennsylvania and which alleged that the Defendants there had violated and were continuing to violate an obscenity statute and praying for an injunction enjoining the Defendants from further conduct which would violate § 5903(g) of the Pennsylvania Crimes Code. A jury trial was held on May 3, 1978 but Shelly had already removed the matter as to him to this Court and the proceedings in Adams County proceeded to judgment against Good Times Sales Co., Devil's Den Adult Bookstore and Cheoap's Corporation, and they were enjoined from continuing to violate the said law.

 Shelly avers as grounds for removal a violation of his civil rights under 28 U.S.C. § 1443 and 28 U.S.C. § 1441(b). Section 1443 provides:

 
"Any of the following civil actions . . commenced in a State court may be removed by the defendant to the district court of the United States . . .:
 
(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;"
 
. . .

 It is clear that § 1443 does not apply to this case for there is no allegation that the state action has anything to do with racial equality which is essential for removal under that section. *fn1" See also TENNESSEE ex rel. DAVIS v. MARKET STREET NEWS, 357 Fed. Supp. 74 (1973), a case on all fours with the instant matter.

 It seems equally clear that under the facts alleged in the removal petition the case cannot be removed under § 1441(b) either. It cannot be disputed that to remove an action from state court to federal court under this section, and on the facts alleged here, it is first necessary that such action could have originally been brought in a federal court.

 As far as pertinent here, 28 U.S.C. § 1343 provides:

 
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
 
. . .
 
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by ...

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