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DAVIS v. GLANTON

April 1, 1996

KENNETH DAVIS, et. al., Plaintiff,
v.
RICHARD GLANTON, et. al., Defendants.



The opinion of the court was delivered by: BRODY

 Brody, J.

 April 1, 1996

 The issue before me is whether a defamation action originally filed in state court can be removed to this Court, based on the fact that the issues presented in the defamation action are tangentially related to facts presented in a § 1983 action already pending in this Court. I find that removal on this basis is improper, and I therefore grant plaintiff's Motion to Remand.

 I. BACKGROUND

 On January 18, 1996, the Barnes Foundation filed an action under § 1983 and § 1985(3), alleging that the Township of Lower Merion, the Township Board of Commissioners, individual Commissioners and various neighbors ("the federal defendants") acted in concert to harass, intimidate, interfere with and discriminate against the Barnes Foundation. The Complaint alleges that the federal defendants were motivated by racial bias and personal animus, and that their actions violated the Barnes Foundation's constitutional rights. *fn1"

 On March 4, 1996, certain federal defendants (namely, several of the Township Commissioners) brought a defamation action in Montgomery County Court of Common Pleas against certain Trustees of the Barnes Foundation. The defendant Trustees removed the defamation action to this Court on March 7, 1996 under three separate provisions: (a) 28 U.S.C. § 1443(1) (b) 28 U.S.C. § 1441 and (c) 28 U.S.C. § 1651. In response, plaintiffs in the defamation action filed a Motion for Remand contesting all three grounds for removal. Reply papers were submitted by both sides, and then oral argument was held on March 29, 1996.

 II. 28 U.S.C. § 1443(1)

 The first ground for removal cited by defendants, 28 U.S.C. § 1443(1), states in pertinent part: "Any of the following civil actions . . . may be removed. . . : (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(1). *fn2" In their removal petition, defendants argue that they "are being subjected to civil rights violations based upon the race of certain of the Trustee defendants and the action filed by plaintiffs is itself an act by which their civil rights have been violated". Joint Notice of Removal at P4. Defendants further state that the state court is an inadequate forum to redress this claim. See id.

 In order to remove a case under § 1443(1), a two-part standard must be met. First, a person must be deprived of a specific federal right pertaining to racial equality that is protected through a federal statute. See City of Greenwood v. Peacock, 384 U.S. at 825-26; Georgia v. Rachel, 384 U.S. at 791-92. Therefore, § 1443(1) removal is unavailable for claims based solely on violations of the 1st or 14th amendment. *fn3" See Johnson v. Mississippi, 421 U.S. 213, 219, 44 L. Ed. 2d 121, 95 S. Ct. 1591 (1975); City of Greenwood v. Peacock, 384 U.S. at 825-26.

 Secondly, the person must show that he or she will be deprived of this right in state court, either due to the existence of a state constitution or statute mandating discrimination, or alternatively because the adjudication of the claim in state court would inherently violate federal law. See Johnson v. Mississippi, 421 U.S. at 219 (discussing second prong); City of Greenwood v. Peacock, 384 U.S. at 827-28 (narrowing the Court's previous interpretation of the second prong in Georgia v. Rachel4 ); see generally Kentucky v. Powers, 201 U.S. 1, 31-33, 50 L. Ed. 633, 26 S. Ct. 387 (1906); Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 308-11, 25 L. Ed. 664 (1879); Virginia v. Rives, 100 U.S. (10 Otto) 313, 319-20, 25 L. Ed. 667 (1879). Without meeting this two-prong standard, removal under § 1443(1) is improper.

 Defendants argue that they satisfy the first prong by citing specific federal statutes pertaining to race discrimination, namely § 1983 and § 1985(3). I will not dwell on the merits of this first argument, due to the fact that defendants have clearly failed to satisfy the second prong of the test.

 With regard to the second prong, defendants never identify a specific state law or specific article in the Pennsylvania Constitution which would prevent the safeguarding of their federal rights. Alternatively, defendants never demonstrate why the Pennsylvania courts would not be able to adequately protect their rights. In the removal petition, defendants simply state "Trustee defendants' rights will be denied or cannot be enforced in the state court", but never adequately develop this claim in their papers or at oral argument. See Joint Notice of Removal at P4.


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