United States District Court, M.D. Pennsylvania
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE
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.
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.
LEGAL STANDARD FOR THE REMOVAL OF STATE COURT CRIMINAL
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).
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.
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
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).
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 ...