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Werdebach v. Ebert

United States District Court, M.D. Pennsylvania

July 19, 2019

M.L. EBERT, et al., Defendants

          BRANN, D.J.




         On July 15, 2019, Tony Werdebach filed a Notice of Removal requesting that the following three pending State court criminal cases be removed to this Court pursuant to 28 U.S.C. § 1455: Commonwealth v. Werdebach, CP-21-CR-0519-2018 (C.P. Cumberland Cty.); Commonwealth v. Werdebach, CP-21-CR-0524-2018 (C.P. Cumberland Cty.); and Commonwealth v. Werdebach, CP-21-CR-0590-2018 (C.P. Cumberland Cty.). As Defendants, Mr. Werderbach named M.L. Ebert (the Cumberland County District Attorney) and Cumberland County. Mr. Werdebach paid the filing fee.

         This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. See In re U.S. Healthcare, 159 F.3d 142 (3d Cir. 1998) (holding that a remand order is a dispositive motion for the purposes of 28 U.S.C. § 636(b)(1)). For the reasons stated herein IT IS RECOMMENDED that this case be SUMMARILY REMANDED to the Cumberland County Court of Common Pleas pursuant to 28 U.S.C. § 1455(b)(4).


         Section 1455 of Title 28 of the United States Code sets out the procedure for removal of criminal prosecutions from state court. It provides, in relevant part, that:

A defendant or defendants desiring to remove any criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such prosecution is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and 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 or defendants in such action.

28 U.S.C. § 1455(a). The procedure for removal of a criminal prosecution from state court is outlined in 28 U.S.C. § 1455(b). This section requires that “[a] notice of removal of a criminal prosecution shall include all grounds for such removal.” 28 U.S.C. § 1455(b)(2).

         The substantive grounds for removal are set out in 28 U.S.C. §§ 1442, 1442a, and 1443. Section 1442 allows for removal of state criminal prosecutions in certain instances against federal officers or agencies. Similarly, Section 1442a allows for removal of certain state court criminal prosecutions against members of the armed forces.

         Section 1443 allows for removal in two situations. First, Section 1443(1) authorizes the removal of a state law criminal action “[a]gainst 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). The Third Circuit Court of Appeals explained that:

For this provision to apply, “a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law ‘providing for ... equal civil rights'; and (2) that he is denied or cannot enforce that right in the courts of the state.” Davis v. Glanton, 107 F.3d [1044, ] 1047 [3d Cir.1997] (quoting State of Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)). Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law “providing for specific civil rights stated in terms of racial equality.” Id. (internal citations and quotations omitted). Under the second requirement, removal is available where the defendant's federal civil rights would “inevitably be denied by the very action of being brought to trial in state court.” Id. at 1049 (internal citations and quotations omitted).

Commonwealth of Pennsylvania v. Randolph, 464 Fed.Appx. 46, 47 (3d Cir. 2012) (per curiam) (non-precedential). Second, Section 1443(2) authorizes removal of a state court criminal prosecution “for any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” 28 U.S.C. § 1443(2). This subsection “confers a privilege of removal only upon federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights.” Randolph, 464 Fed.Appx. at 47 (quoting City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824 (1966)) (internal quotation marks omitted).

         Finally, Section 1455 requires that “[t]he United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal shall not be permitted, the ...

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