IN THE UNITED STATES DISTRICT COURT FOR THE …patriotsforparentalequality.com/wp-content/uploads/2018/02/show_multidocs.pl-3.pdffor the southern district . houston division . joshua

Reply Brief - OAG Motion for Remand 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT

HOUSTON DIVISION

JOSHUA L. JAROS, § §

Plaintiff § § v. §

§ CIVIL ACTION NO. 4:18-cv-00594

§ JESSICA M. JAROS, CURTIS M. COLLUM, STATE OF TEXAS, et. al.,

§ §

§ Defendants §

______________________________________________________________________________

REPLY BRIEF FOR OFFICE OF THE ATTORNEY GENERAL’S MOTION FOR REMAND

______________________________________________________________________________

TO THE HONORABLE GARY H. MILLER:

COMES NOW, the Office of the Attorney General of Texas (“OAG”), Movant, and files

this Reply brief in support of its Motion to Remand. The OAG would respectfully show the

Court the following:

I. PROCEDURAL HISTORY

On February 26, 2018, Joshua L. Jaros (“Jaros”) sought to remove this action for

Enforcement of a state court child support order to federal court pursuant to 28 U.S.C. 1443. (UDoc.

1U, ¶ 16: “This is a removal under 28 USC§ 1443”).

On March 12, 2018, the OAG filed its Motion for Remand, demonstrating how Jaros’

removal under 28 USC§ 1443 was invalid because it does not present the necessary racial

component for removal, as well as how the litigation he was attempting to remove is precluded,

due to its subject matter and the relief sought, by the Domestic Relations exception, the Rooker-

Case 4:18-cv-00594 Document 23 Filed in TXSD on 03/23/18 Page 1 of 7


Feldman doctrine, and, in the alternative, the Younger abstention doctrine. (UDoc. 16U).

On March 22, 2018, Jaros filed his Response to the Motion for Remand. (UDoc. 22U).

Notably absent in his Response is any reference to any fact specific to his case, other than that

removal is sought under 28 USC§ 1443.

Even after Jaros’ Response, this Court should remand the matter to state court for the

reasons discussed in the Motion for Remand.

UII. UREMAND IS PROPER IN THIS CASE

Over the course of 45 pages, Jaros presents a series of arguments that simply mash together

his other filings and combine those with his own recognition that the law bars his attempted

removal, but he wishes it were otherwise. (UDoc. 22U).

A. Removal under 28 U.S.C. § 1443 is Not Authorized in this Litigation

Jaros devotes large sections of his Response to arguing that the judiciary and all previous

rulings from federal courts requiring “racial equality” as a component of removal under 28 U.S.C.

§ 1443(1) are wrong and should be disregarded. (UDoc. 22U, pages 21-37).

In fact, other Courts have entertained Jaros’ arguments and uniformly rejected them. See,

e.g., Parris v. Parris, 2017 WL 5184567; Cause No. 4:17-CV-504; E.D. Texas, Sherman Division

(November 9, 2017) (UExhibit AU).

Courts rejected not just the subject matter of the arguments, but the actual, specific words

cut and pasted from other cases and presented in Jaros’ case as his own briefingP 0F

1P. Jaros’ briefing

is word for word recycled argument from other cases. Compare UDoc. 22U with UExhibit BU, the

Objections to the Magistrate’s Report and Recommendation to Remand in the Parris case.

1 This also explains why Jaros’ Response does not contain any references to facts in his case: the briefing is not his, and was not written with Jaros’ case in mind.



Compare for example, the use of the specific phrases “hence his fatal remand motion violates Rule

11, it was clearly premature in self negligence, even more grossly and fully incompetent passim”

(UDoc. 22U, page 1 and UExhibit BU, page 1), “Within the instant case, the troubling difficulty of

[Person recommending remand] to understand this simple and fundamental concept difference

with Section 1443” (UDoc. 22U, page 20: the Person recommending remand is “Mr. Graydon” and

UExhibit BU, page 22: the Person is “Magistrate Nowak”), and how Magistrate Nowak and Mr.

Graydon have “clearly erred, across the board, in every faulty position he [or she, in the case of

Magistrate Nowak] recklessly and negligently took.” (UDoc. 22U, page 43 and UExhibit BU, page 46).

In the end, Jaros’ attempt at removal should end the same way, with remand to the state

court from whence it came. (UExhibit AU). This is how all such invalid attempts at removal end.

See, e.g., Janosek v. Gonzalez, 2017 WL 3474104; Cause No. 2:17-CV-111; S.D. Texas, Corpus

Christi Division (August 11, 2017) (UExhibit CU); Morrow v. Morrow, 2016 WL 9709531; Cause

No. 4: 16-cv-27; E.D. Texas, Sherman Division (February 22, 2016) (UExhibit DU); see also Sanders

v. Wright, 2017 WL 3599536; Cause No. 5:17-CV-131; United States District Court, E.D. Texas,

Texarkana Division (August 22, 2017); McMullen v. Cain, 2017 WL 4506814; Cause No. 1:17-

CV-103; W.D. Texas, Austin Division (June 22, 2017) (currently on appeal to the Fifth Circuit in

Cause No. 16-51446).

Because Jaros does not meet the Rachel test for removal, this case should be remanded to

state court. Kruebbe v. Beevers, No. 16-30469, 692 Fed.Appx. 173, 175-76 (5th Cir. 2017).

B. Jaros’ Removal is Barred by the Domestic Relations Exception to a Federal Court’s Jurisdiction

Jaros’ argument regarding the Domestic Relations Exception to federal jurisdiction is

similarly recycled. Compare UDoc. 22U, Argument III, pages 12-16 with UExhibit BU, Argument III,

pages 15-18. None of Jaros’ argument changes the fact (or even addresses the fact) that he is



clearly seeking to have this Court review and reverse decisions made in state court child support

proceedings by complaining about the state court “ordering amounts of child support against me”

(UDoc. 1U, ¶ 11), asking this Court to determine the validity of state court orders regarding child

support (UDoc. 1U, ¶ 12, “there has never been any valid authority by any court to order me to pay

‘child support’ "), and attacking the amount of child support ordered. (UDoc. 1U, ¶ 57).

This is clearly an impermissible attempt to circumvent the Domestic Relations Exception

and seek federal resolution of a state court domestic matter “cast in the form of civil rights suits.”

Hale v. Harney, 786 F.2d 688, 690-91 (5th Cir. 1986) (internal citations omitted). At a minimum,

Jaros’ claims are “inextricably intertwined” “ ‘with the state court's' grant or denial of relief,’ “

and “the federal court should not entertain the claims.” Eitel v. Holland, 798 F.2d 815, 818 (5th

Cir. 1986)(quoting Hale, 786 F.2d at 691)(internal citations omitted).

C. This Court’s Exercise of Jurisdiction is Barred by the Rooker-Feldman Doctrine, or in the alternative, the Younger doctrine

Jaros makes passing reference to the Rooker-Feldman and Younger doctrines, but only

making a conclusory assertion that they cannot ever be applied to removals under 28 U.S.C. §

1443. (UDoc. 22U, pages 37-38). Jaros cites no legal authority to support this conclusion, and none

exists, because he is legally incorrect.

1. The Rooker-Feldman Doctrine

Courts have remanded cases removed under 28 U.S.C. § 1443 pursuant to the Rooker-

Feldman doctrine. See, e.g., In re Pozsga, 158 F.R.D. 435, 437 fn. 1 (D.Ariz.1994) (recognizing

that even when a case was removed under 28 U.S.C. § 1443, the “Rooker–Feldman doctrine barred

any removal for the purpose of having this Court review the legality and correctness of the state

court's decisions and procedures”); see also Cent. Mortg. Co. v. Laskos, 561 Fed.Appx. 827, 828

(11th Cir. 2014) (discussing remand of a case on the basis of the Rooker-Feldman doctrine when



the matter ostensibly removed under 28 U.S.C. § 1443).

The Rooker-Feldman doctrine bars this federal court from entertaining Jaros’ collateral

attacks on state court judgments because “the court is ‘in essence being called upon to review the

state-court decision,’ and the originality of the district court’s jurisdiction precludes such a

review.” United States v. Shepard, 23 F.3d 923, 924 (5th Cir. 1994) (citing District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). Jaros explicitly complains about the

“Montgomery County proceedings” “ordering amounts of child support against me.” (UDoc. 1U, ¶

11), attacks the validity of state court orders regarding child support (UDoc. 1U, ¶ 12, “there has

never been any valid authority by any court to order me to pay ‘child support’ "), and the amount

of child support ordered. (UDoc. 1U, ¶ 57). This Court could not award any relief to Jaros without

reviewing the state court decisions and rendering judgment upon them.

2. The Younger Abstention Doctrine

Jaros’ conclusory argument regarding the Younger doctrine is similarly supported by no

legal authority. That is because the Younger doctrine is applicable even when a party attempts to

remove under 28 U.S.C. § 1443. See, e.g., Sones v. Simpson, 10–CV–2475, 2010 WL 5490801,

at *7 (M.D.Pa. Dec.3, 2010) (“Entirely aside from this misreading of the scope of 28 U.S.C. §

1443, the Sones' complaint … runs afoul of another settled tenet of federal law, the Younger

abstention doctrine”); State of Ohio ex rel. Ney v. PJC, Inc., 592 F.Supp. 28, 30 (S.D.Ohio 1984)

(“the defendants herein have attempted to establish federal jurisdiction under the § 1983 avenue

as well as the U§ 1443 removalU avenue. UWe see no merit in the contention that a ruling of an absence

of jurisdiction under a narrowly interpreted removal statute precludes consideration of

jurisdictional issues, spawned by Younger v. HarrisU, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669

(1971) and its progeny”) (emphasis added).



In this case, as was shown in the Motion for Remand, (1) the dispute involves an “ongoing

state judicial proceeding,” (2) an important state interest in the subject matter of the proceeding is

implicated, and (3) the state proceedings afford an adequate opportunity to raise constitutional

challenges. As a result, the Court should abstain from exercising jurisdiction. Wightman v. Tex.

Supreme Ct., 84 F.3d 188, 189 (5th Cir. 1996).

UIII. UCONCLUSION

This Court should remand this litigation back to state court for the reasons presented

hereinabove and in the OAG’s Motion for Remand.

Respectfully submitted,

KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General JAMES E. DAVIS Deputy Attorney General for Civil Litigation ANGELA V. COLMENERO Chief, General Litigation Division

U/s/ Scot M. Graydon U SCOT M. GRAYDON Texas Bar No. 24002175 Assistant Attorney General Office of the Attorney General General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 (512) 320-0667 FAX

30T [email protected]


mailto:[email protected]


ATTORNEYS FOR THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS – FOR THE LIMITED SCOPE OF THE FEDERAL REMOVAL OF THIS LITIGATION

CERTIFICATE OF SERVICE

I certify that a copy of the above Reply Brief in Support of the OAG’s Motion to Remand

was served on the 23rdP

Pday of March, 2018, upon the following individual by Certified Mail,

Return Receipt Requested and via regular mail: Joshua L. Jaros Pro Se Petitioner 30685 FM 2978, #418 Magnolia, TX 77354 Telephone: (936) 446-6763 Email: [email protected] /s/ Scot M. Graydon SCOT M. GRAYDON

Assistant Attorney General


mailto:[email protected]

United States District Court EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

HILDA PARRIS

v.

JASON PARRIS

§ § § §

Civil Action No. 4:17-CV-504 (Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Came on for consideration the report of the United States Magistrate Judge in this action,

this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.

On September 19, 2017, the report of the Magistrate Judge (Dkt. #12) was entered containing

proposed findings of fact and recommendations that Plaintiff Hilda Parris’s Motion to Remand

(Dkt. #11) be granted and this cause be remanded to the 211th Judicial District Court, Denton

County, Texas. Having received the report and recommendation of the Magistrate Judge, having

considered Defendant’s objections (Dkt. #19), and having conducted a de novo review, the Court

is of the opinion that the findings and conclusions of the Magistrate Judge are correct and adopts

the Magistrate Judge’s report as the findings and conclusions of the Court.

RELEVANT BACKGROUND

On July 29, 2014, Plaintiff Hilda Parris filed a divorce with children action in the 211th

Judicial District Court, Denton County, Texas (“State Court”) (Dkt. #1, Exhibit A). On

October 29, 2015, the State Court entered a Final Decree of Divorce and an Order Withholding

from Earnings for Child Support (Dkt. #1, Exhibit A). On January 11, 2016, Defendant Jason

Parris filed a Motion to Enter a Qualified Domestic Relations Order (“QDRO”)

(Dkt. #1, Exhibit A). On March 3, 2016, the State Court canceled the hearing on the Motion to

Enter QDRO and ordered the file sent to Records Management for storage (Dkt. #1, Exhibit A).

Case 4:17-cv-00504-ALM-CAN Document 20 Filed 11/09/17 Page 1 of 10 PageID #: 203

Exhibit A

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Thereafter, on or about June 20, 2017, Defendant received a notice letter from the Office of the

Attorney General regarding his alleged nonpayment of child support (Dkt. #1, Exhibit B), as well

as a Notice of Levy (Dkt. #1, Exhibit C). On July 19, 2017, Defendant purported to remove the

divorce action and issue of support payments to the United States District Court for the Eastern

District of Texas, Sherman Division, asserting federal jurisdiction under “28 U.S.C. §§ 1443 and

1446(b), and 28 U.S.C. §§ 1331, 1343, and 1367” (Dkt. #1 at p. 1). Although Defendant labeled

himself as “Petitioner” in the caption of his Notice of Removal, the Court found that Defendant

sought removal of the State Court proceeding pursuant to 28 U.S.C. § 1443

(Dkts. #1 at p. 4; #12 at p. 2) (“this is a removal under 28 U.S.C. § 1443”).

On September 19, 2017, the Magistrate Judge entered a report and recommendation

(Dkt. #12) recommending that Plaintiff’s Motion to Remand be granted and this case be remanded

to the 211th Judicial District Court, Denton County, Texas. Defendant filed his “Objections to

Unauthorized Magistrate Report and Recommendations with Conditional Request for Findings of

Fact and Conclusions of Law” (Dkt. #19) on October 10, 2017.

DEFENDANT’S OBJECTIONS

A party who files timely written objections to a magistrate judge’s report and

recommendation is entitled to a de novo review of those findings or recommendations to which

the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2)-(3). In his forty-

eight page Objections, Defendant lodges multiple complaints, many of which are repetitive.

As an initial matter, Defendant argues the report and recommendation “is NOT amongst

the available types of dispositive actions that federal magistrate judges may ever address without

the consent of the parties.” (Dkt. #19 at p. 2) (emphasis in original). But the Federal Magistrates

Act, 28 U.S.C. § 636, permits “a [full Article III] judge [to] designate a magistrate judge to hear

and determine any pretrial matter pending before the court, except [certain dispositive motions]”

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3

and further permits a judge [to] designate a magistrate judge to . . . submit to a judge of the court

proposed findings of fact and recommendations for the disposition, by a judge of the court, of any

[of those excepted] motion[s] . . . .” 28 U.S.C. § 636(b)(1)(A)-(B). The Court’s Local Rules also

provide district judges wide latitude in referring matters and motions for a magistrate judge’s

review. E.D. Tex. Local Civil Rule 72(d). A magistrate judge may, therefore, recommend

disposition of a motion to remand to the district judge, who will then conduct a de novo review of

those portions of the recommendation to which parties raise specific, timely objection. 28 U.S.C.

§ 636(b)(1)(C). The Fifth Circuit has repeatedly recognized the statutory authority to designate a

magistrate judge to consider a motion to remand. Douglass v. United Servs. Auto. Ass’n, 79 F.3d

1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.

§ 636(b)(1). Here, the Magistrate Judge recommended Plaintiff’s Motion to Remand be granted.

The Magistrate Judge acted within the bounds of statutory authority in issuing such report and

recommendation, and the Court now properly reviews those portions of the Magistrate Judge’s

report and recommendation to which Defendant raises specific objections.1

Defendant also makes the following arguments in his objections:

• “The State of Texas must surpass pre-deprivation ‘serious parental unfitness’ due process hurdles, and that by clear and convincing evidence, before it may then, and only then, remove the custodial rights of any parent to his or her own natural child” (Dkt. #19 at p. 7). As a summary of this argument, Defendant asserts “the State of Texas family court system is wildly unconstitutional, perpetrating routine, daily frauds upon basic constitutional and due process rights of at least one-half of all the natural parents involved within domestic relations cases over child custody betwixt two competing parents, and it is incumbent on this Court to strike down the same facially repugnant mess.” (Dkt. #19 at pp. 11—12). • “State family court judges are barred from any involvement in Title IV-D child support matters of their own given respective counties due to the pecuniary conflicts of interests to such county officers within the Title IV-D system” (Dkt. #19 at p. 12). Defendant requests

1 Defendant argues the report and recommendation “was technically meritless” because Plaintiff’s attorney has yet to file a written appearance (Dkt. #19 at p. 1). But, pursuant to Local Rule CV-11, the attorney signing a party’s first filing as lead attorney is considered to have made an appearance. Thus, Defendant’s objection on this ground is likewise overruled.


4

the Court “strike down the same facially repugnant mess by declaring an appropriate injunction against the State of Texas, its family court system leaders, and/or the corresponding judicial officers, forbidding such further conflicts of interest and/or other entanglements, and making the same permanent.” (Dkt. #19 at pp. 14—15). • “Causes of action over federal torts are well established as perfectly proper federal subject matter jurisdiction even if regarding state domestic relations cases” (Dkt. #19 at p. 15). According to Defendant, he is within his rights to bring a federal court tort action for civil damages “over the original several years of interference with the parenting time I was supposed to have equally with my offspring, because such federal tort actions have been very well established for decades” (Dkt. #19 at p. 18) (emphasis in original). Defendant argues “[a]ny frivolous attempt by any officer or party herein to willfully, intentionally and knowingly defraud this District Court into avoiding jurisdiction over federal tort claims brought by this Petitioner (let alone over the removal action and direct facial challenge to state statutes itself), simply because the issues are intertwined with a state domestic relations case, are abhorrently not in compliance with well-established federal jurisprudence . . . .” (Dkt. #19 at p. 18). • “Removal under 28 U.S.C. § 1443 is timely filed within thirty days of the aggrieved litigant first ascertaining the existence of his or her right to remove” (Dkt. #19 at p. 19). • “Civil rights removal via Section 1443 is quite different from all other removal types in substantive and procedural respects” (Dkt. #19 at p. 20). According to Defendant, “[w]hile all ‘fresh’ removals filed under § 1441 and that kin should retain the same ‘fresh’ case styling pattern as in that brand new state court case, § 1443 removals are not triggered unless and until a given state court – maybe months or years later, or never—violates a litigant’s federal rights, triggering the adversarial nature of the case styling reverse, because of then later invoking this statutory enforcement action of right, via petitioning under § 1443 for due relief . . . as petitioner and . . . all adverse parties therein are called the respondents . . . .” (Dkt. #19 at p. 21) (emphasis in original). • “Racial litmus tests may not be used by federal courts to arbitrarily deny otherwise equal access rights to federal court jurisdiction over equal rights issues” (Dkt. #19 at p. 23). According to Defendant, “‘[c]ivil rights are not limited under federal law to simply and solely ‘racial’ issues.” (Dkt. #19 at p. 23) (emphasis in original).

• “Federal courts may not entertain abstention doctrines to deny clear and unambiguous statutory language that expressly authorizes state case intervention” (Dkt. #19 at p. 40). The Court now considers Defendant’s substantive objections to the report and

recommendation and conducts a de novo review of the Magistrate Judge’s findings and

conclusions. As noted above, Defendant removed this case pursuant to the civil rights removal

statute, 28 U.S.C. § 1443, which authorizes the removal of a civil rights action pending in state


5

court, even if the action would not otherwise be removable under the federal court’s original

jurisdiction. Section 1443 allows removal of any pending civil actions:

(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 the citizens of the United States, or of all persons within the jurisdiction thereof;

(2) 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.

The second subsection of § 1443 “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.” City of Greenwood, Miss. v. Peacock, 384 U.S. 808,

824 (1966). As noted by the Magistrate Judge, Defendant has not alleged he is a federal officer or

agent; therefore, any right to removal he may have must fall under the first subsection of § 1443.

Under 28 U.S.C. § 1443(1), a defendant must satisfy a two-pronged test to remove an

action. Georgia v. Rachel, 384 U.S. 780 (1966). First, a defendant must prove the rights allegedly

denied to him arise under a federal law “providing for specific civil rights stated in terms of racial

equality.” Id. at 792. Second, a defendant must prove he has been “denied or cannot enforce” the

specific civil rights in state court. Id. at 794.

Defendant asserts the “‘racial inequality’ litmus test often used by federal courts to

arbitrarily deny equal rights and equal access to federal relief to white people via removal under

28 USC § 1443 is utter nonsense, easily slammed in several ways as flagrantly and recklessly

unconstitutional.” (Dkt. #19 at p. 7) (emphasis in original). Recently, the Fifth Circuit considered

a litigant’s appeal of the district court’s order remanding his criminal case to state court pursuant

to § 1443(1). Kruebbe v. Beevers, No. 16-30469, 692 F. App’x 173, 174 (5th Cir. 2017). In


6

deciding to remand Kruebbe’s criminal case, the district court found that the Supreme Court in

Rachel held “the phrase ‘any law providing for . . . equal civil rights’ must be construed to mean

any law providing for specific civil rights stated in terms of racial equality.” Id. at 175 (quoting

Rachel, 384 U.S. at 792). Kruebbe argued the district court erred in remanding his case because

the Supreme Court’s decision in Rachel was reversed by Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600 (1979). Id. Considering this argument, the Fifth Circuit held that

Chapman involved the interpretation of a different statute, 28 U.S.C. § 1343, and therefore, did

not overturn Rachel. Id. at 175—76. “On the contrary, Chapman reiterated Rachel’s holding,

explaining that § 1443 ‘was enacted in the Civil Rights Act of 1866 under the authority of the

Thirteenth Amendment’ and was therefore ‘limited to racially based claims of inequality.’” Id. at

175 (quoting Chapman, 441 U.S. at 622) (“When the removal statute speaks of any law providing

for equal rights, it refers to those laws that are couched in terms of equality, such as the historic

and the recent equal rights statutes, as distinguished from laws, of which the due process clause

and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way

of life, of bestowing them upon all.”) (internal quotations omitted). Ultimately, the Fifth Circuit

held that “[i]n requesting his case be removed to federal court, ‘Kruebbe did not allege that he was

denied or unable to enforce rights under any law providing for equal civil rights stated in terms of

racial equality. Therefore, § 1443(1) did not apply to his criminal prosecution.’” Id. at 175—76.

Given the Fifth Circuit’s recent precedent, the Magistrate Judge properly relied upon the Rachel

two-prong test and the Supreme Court’s holding that § 1443 is limited to racially based claims of

inequality.

The Rachel test requires the following for removal under § 1443. First, it must appear the

right allegedly denied the removing defendant arises under a federal law “providing for specific


7

civil rights stated in terms of racial equality.” Id. at 175 (quoting Rachel, 384 U.S. 792); see also

Alabama v. Conley, 245 F.3d 1292, 1295 (11th Cir. 2001). As to this first prong, “broad assertions

under the Equal Protection Clause . . . are insufficient to support a valid claim for removal under

§ 1443(1)” because racial equality rights do not include rights of general application. See Conley,

245 F.2d at 1295–96. Second, it must appear, in accordance with the provisions of § 1443(1), that

the removing defendant is “denied or cannot enforce” the specified federal rights “in the courts of

(the) State.” Id. at 1298. This provision normally requires the denial be “manifest in a formal

expression of state law,” such as a state legislative or constitutional provision, rather than a denial

first made manifest in the trial of the case. Id. (citation and internal quotation omitted). Except in

the unusual case where “an equivalent basis [can] be shown for an equally firm prediction that the

defendant would be ‘denied or cannot enforce’ the specified federal rights in the state court,” it

was to be expected that the protection of federal constitutional or statutory rights could be effected

in the pending state proceedings, civil or criminal. Id. (quoting Rachel, 384 U.S. at 804). “Failure

to satisfy either prong of the two-pronged test is fatal to removal.” Evans v. State of Florida Dep’t

of Revenue Child Support Enf’t, No. 3:09CV467/MCR/EMT, 2010 WL 419399, at *3–4 (N.D.

Fla. Jan. 28, 2010), aff’d sub nom. Evans v. Echeverri, 433 F. App’x 878 (11th Cir. 2011) (citing

Williams v. State of Mississippi, 608 F.2d 1021, 1022 (5th Cir. 1979)).

The Court agrees with the Magistrate Judge that Defendant’s broad constitutional claims

do not satisfy the first prong of the Rachel test. See Alabama v. Huffaker, No. 08–680, 2009 WL

197806, at *2 (S.D. Ala. Jan. 26, 2009) (pro se defendant alleging denial of equal protection and

due process in a child support proceeding “failed to allege adequate grounds for removal pursuant

to § 1443(1), because he cannot satisfy the first prong of the test”). In Huffaker, the removing

party argued he was denied equal protection and due process of law in the state court civil action


8

and that his fundamental rights as a parent were impaired by a petition to modify the divorce decree

filed by his former wife in the state court action. Id. at *1—2. In remanding the case, the Huffaker

court explained that the “federal judiciary has traditionally abstained from deciding cases

concerning domestic relations. As a result, federal courts generally dismiss cases involving

divorce and alimony, child custody, visitation rights, establishment of paternity, child support, and

enforcement of separation or divorce decrees still subject to state court modification.” Id. at *5

(quoting Ingram v. Hayes, 866 F.2d 368, 369 (11th Cir. 1988)). According to the Huffaker court,

retaining jurisdiction on removal would require the court to address the prior orders of the state

court and address “divorce and alimony, child custody, . . . child support, and enforcement of

separation or divorce decrees still subject to state court modification.” Id.

In Evans v. State of Florida Department of Revenue Child Support Enforcement, the

removing defendant argued, as grounds for removal under § 1443, that the state statutes the Florida

Department of Revenue (“DOR”) proceeded upon in state court were unconstitutional. 2010 WL

419399, at *1. The court held Evans failed to satisfy the first prong of the removal test, stating as

follows:

Although the right to due process arises under the Fourteenth Amendment, that constitutional right is not a specific civil right couched in terms of racial equality, rather, it is a broad constitutional guarantee of general application. Likewise, Evans’ equal protection claim, that the DOR is treating him differently than similarly situated non-custodial parents, is not based upon racial inequality, but upon the broad constitutional guarantee of equal protection. Therefore, Evans’ broad assertions that his due process and equal protection rights were violated do not provide a basis for removal under Section 1443.

Id. at *4.

In the instant case, Defendant’s claims are not based upon racial inequality. Defendant

asserts alleged violations of his due process rights (lack of pre-deprivation due process actually)

and equal protection rights into this removed case. However, as found by the Magistrate Judge,


9

Defendant has not demonstrated his claims arise under a federal law “providing for specific civil

rights stated in terms of racial equality.” Thus, Defendant fails to satisfy the first prong of the

removal test.

Defendant also fails the second prong of the test, namely that he has been “denied or cannot

enforce” the specific civil rights in state court. Rachel, 384 U.S. at 794. Defendant has not shown

any Texas law or policy “prevents him from raising his federal claims or rights under the

Constitution, as either defenses or counterclaims,” in the State Court proceeding. Louisiana v.

Wells, 2015 WL 1276713, at *5 (M.D. La. Mar. 19, 2015), aff'd, 628 Fed. Appx. 260 (5th Cir.

2015). Nor has Defendant shown “how his civil rights, as they pertain to racial equality, would be

denied in state court in the instant action that is in question.” Id. (citing Paris v. GMAC Mortgage

Corp., No. 06–01489, 2006 WL 3201312, at *2 (D. Colo. Nov. 1, 2006) (denying removal of

eviction proceeding under 28 U.S.C. § 1443)). Defendant has not demonstrated the State Court

proceeding, which is subject to appellate review by other Texas courts, “will inevitably result in a

violation of [Defendant’s] rights under the Constitution.” Id.


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10

CONCLUSION

Having considered each of Defendant’s objections (Dkt. #19), and having conducted a

de novo review, the Court is of the opinion that the findings and conclusions of the Magistrate

Judge are correct and adopts the Magistrate Judge’s report (Dkt. #12) as the findings and

conclusions of the Court.

Accordingly, it is ORDERED that Plaintiff’s Motion to Remand (Dkt. #11) is

GRANTED. The Court REMANDS this action to the 211th Judicial District Court, Denton

County, Texas.

IT IS SO ORDERED.


AmosLMazzant

Judge Mazzant

Case 4:17-cv-00504-ALM-CAN Document 19 Filed 10/10/17 Page 1 of 48 PageID #: 155

Exhibit B

















































Janosek v. Gonzalez, Slip Copy (2017)

© 2018 Thomson Reuters. No claim to original U.S. Government Works. 1

2017 WL 3474104Only the Westlaw citation is currently available.

United States District Court,S.D. Texas, Corpus Christi Division.

Robert JANOSEK, Petitioner,v.

Clarissa GONZALEZ, Respondent.

CIVIL ACTION NO. 2:17-CV-111|

Signed 08/11/2017

Attorneys and Law Firms

Robert Janosek, Corpus Christi, TX, pro se.

Flor E. Flores, The Law Firm of Flor E. Flores PLLC,Rio Grande City, TX, for Respondent.

Opinion

ORDER ADOPTING MEMORANDUMAND RECOMMENDATION

NELVA GONZALES RAMOS, UNITED STATESDISTRICT JUDGE

*1 Pending before the Court is Clarissa Gonzalez'smotion to remand (D.E. 17) and her memorandumin support thereof (D.E. 18). Also pending is RobertJanosek's notice of judicial disqualification (D.E. 19),which seeks this judge's disqualification or recusal. OnMay 19, 2017, Magistrate Judge Jason B. Libby enteredhis memorandum and recommendation (D.E. 27, M&R),recommending that the Court grant Gonzalez's motion to

remand and deny Janosek's motion to disqualify. 1 TheMagistrate Judge also recommends imposing sanctions onJanosek in the form of costs and attorney's fees. On June 5,2017, Janosek filed his objections to the M&R (D.E. 29).

Standard of Review

A magistrate judge's authority in civil cases is outlined in28 U.S.C. § 636, which “seeks to enforce the constitutionallimits on non-Article III judges.” Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 762-63 (5th Cir. 2016). Thestatute distinguishes between types of pretrial matters.

Id. at 763. Motions that are thought to be dispositiverequire “particularized objection procedures and a higherstandard of review because of the possible constitutionalobjections that only an article III judge may ultimatelydetermine the litigation.” Id. (quoting 12 Charles AlanWright et al., Federal Practice and Procedure § 3068.2(3d ed. 2014)). The statute contains a list of dispositivepretrial matters that magistrate judges may hear, buttheir authority is limited to issuing recommendations,as opposed to orders, and such recommendations aresubject to a de novo determination of the parts specificallyobjected to. 28 U.S.C. § 636(b)(1). On the other hand,magistrate judges may decide nondispositive matters, andsuch decisions are subject to the more deferential “clearlyerroneous or contrary to law” review. 28 U.S.C. § 636(b)(1)(A).

Motions to remand are not listed in the statute butare considered dispositive matters necessitating de novoreview. Davidson, 819 F.3d at 762-63. Accordingly, theCourt will make a de novo determination of the issuesraised by Janosek's objections regarding the motion toremand.

There is no authority governing the standard of review toapply to a recusal motion on which a Magistrate Judgehas issued a recommendation. The motion to disqualify isnot a dispositive matter because if the motion is granted,the case continues before a different judge. And if themotion is denied, the case continues before the same judge.However, “the judge presiding over a case is in the bestposition to appreciate the implications of those mattersalleged in a recusal motion.” United States v. Ciavarella,716 F.3d 705, 720 (3d Cir. 2013). Out of an abundanceof caution, the Court will review the Magistrate Judge'srecommendation on the recusal issue de novo.

Analysis 2

*2 Janosek first objects to the referral of the case tothe Magistrate Judge. He argues that the District CourtJudge is disqualified from hearing the case and thereforeall actions taken by the Court, including the Orderreferring the case to the Magistrate Judge, are void. Hecontends that Texas courts have deprived him of his rightsand this Judge's former service as a state court judgecreates an inherent bias. See 28 U.S.C. § 455(a) (“Anyjustice, judge, or magistrate judge of the United States

Exhibit C


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shall disqualify himself in any proceeding in which hisimpartiality might reasonably be questioned.”). Janosekhas failed to articulate how serving as a judge in a differentcourt necessitates disqualification. “It is a judge's duty torefuse to sit when he is disqualified but it is equally his dutyto sit when there is no valid reason for recusation.” UnitedStates v. Edwards, 334 F.2d 360, 362 (5th Cir. 1964).After a de novo review of the Magistrate Judge's analysisregarding the motion to recuse, the Court DENIES themotion. Consequently, Janosek's objection to the referralof the case to the Magistrate Judge is OVERRULED.

Janosek's second objection is to the Magistrate Judge'sauthority to consider the motion to remand. He contendsthat motions to remand may not be considered bymagistrate judges. His contention is without merit. Itis well established that magistrate judges may hearmotions to remand and issue recommendations for theirdisposition under 28 U.S.C. § 636(b)(1)(B). Davidson,

819 F.3d at 762-63. 3 Janosek's second objection isOVERRULED.

Janosek's next objection is that the motion to remandshould not have been considered because of certainprocedural irregularities—failure to be served with themotion and failure to confer on the motion. The Courtfinds that these arguments have been waived by Janosek'sfailure to raise these issues with the Magistrate Judge.See Ransom v. Nat'l City Mortg. Co., No. 13-CV4642,2014 WL 717198, at *1 (N.D. Tex. Feb. 25, 2014)(“Generally arguments that could have been raised beforethe magistrate judge are waived if they are raised for thefirst time in objections before the district court.”).

Janosek next asserts multiple objections directed atthe Magistrate Judge's conclusion that the Court lacksremoval jurisdiction under 28 U.S.C. § 1443. Section1443, often called the Civil Rights Removal Act, allows adefendant to remove a state court action if the defendant“is denied or cannot enforce in the courts of such State aright under any law providing for the equal civil rights ofcitizens of the United States, or of all persons within thejurisdiction thereof.” 28 U.S.C. § 1443(1). Janosek arguesthat he cannot vindicate his civil rights in state court andthus needs this Court to intervene. But Janosek's relianceon § 1443 is misplaced.

The Supreme Court has interpreted Section 1443narrowly. See Georgia v. Rachel, 384 U.S. 780, 791-92

(1966). Despite the broad language referring to “any lawproviding for the equal civil rights,” the Supreme Courthas held that the removal under this statute must bebased on a specific federal statute that relates to racialequality. Id. at 791. “The legislative history of the 1866Act clearly indicates that Congress intended to protect alimited category of rights, specifically defined in terms ofracial equality.” Id. The Court stated:

On the basis of the historical material that is available,we conclude that the phrase ‘any law providing for * ** equal civil rights' must be construed to mean any lawproviding for specific civil rights stated in terms of racialequality. Thus, the defendants' broad contentions underthe First Amendment and the Due Process Clause of theFourteenth Amendment cannot support a valid claimfor removal under [§] 1443, because the guarantees ofthose clauses are phrased in terms of general applicationavailable to all persons or citizens, rather than inthe specific language of racial equality that [§] 1443demands. As the Court of Appeals for the SecondCircuit has concluded, [§] 1443 ‘applies only to rightsthat are granted in terms of equality and not to thewhole gamut of constitutional rights * * *.’ ‘When theremoval statute speaks of ‘any law providing for equalrights,’ it refers to those laws that are couched in termsof equality, such as the historic and the recent equalrights statutes, as distinguished from laws, of which thedue process clause and 42 U.S.C. [§] 1983 are sufficientexamples, that confer equal rights in the sense, vital toour way of life, of bestowing them upon all.'

*3 Id. at 792.

As correctly noted by the Magistrate Judge, Janosek doesnot claim that he is seeking to vindicate any rights relatedto racial equality that are protected by a specific federalstatute. Janosek does not identify any civil rights thatwould bring this action within § 1443's narrow scope.Janosek's objections related to § 1443 are OVERRULED.

Janosek also asserts multiple objections arguing thatfederal question jurisdiction exists in this case. Janosekcites two Supreme Court cases that held that parents havea fundamental right to the custody of their children. SeeTroxel v. Granville, 530 U.S. 57, 68-69 (2000); Santoskyv. Kramer, 455 U.S. 745, 758-59 (1982). These cases werenot removed to a federal district court. Instead, theymade their way to the Supreme Court on certiorari fromthe states' high courts. The Magistrate Judge correctly




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noted that under the domestic relations exception, federaldistrict courts may not hear cases involving child custodyor child support. See, e.g., Ankenbrandt v. Richards, 504U.S. 689, 701-04 (1992).

Janosek also contends that he is entitled to removal andfederal jurisdiction based on unspecified “federal tortsagainst his due process rights.” D.E. 29, p. 9. “Thepresence or absence of federal-question jurisdiction isgoverned by the ‘well-pleaded complaint rule,’ whichprovides that federal jurisdiction exists only when afederal question is presented on the face of the plaintiff'sproperly pleaded complaint.” Caterpillar Inc. v. Williams,482 U.S. 386, 392 (1987). As discussed above, Gonzalezcommenced this case as a dispute over child custody andchild support, which are clearly state law claims. Janosek'sattempts to assert federal claims do not make thiscase removable. Janosek's objections concerning federalquestion jurisdiction are OVERRULED.

Last, Janosek objects to the Magistrate Judge'srecommendation regarding sanctions. The MagistrateJudge, having concluded that Janosek had no objectivelyreasonable basis for seeking removal and that its purposewas to delay the state court proceedings, recommendsassessing attorney's fees and costs against Janosek. See28 U.S.C. § 1447(c). Janosek argues that the sanctionsare inappropriate because removal is proper. As discussedabove, removal is not appropriate, and the Courtagrees with the Magistrate Judge that this removalhad no objectively reasonable basis. The objection isOVERRULED.

Conclusion

Having reviewed the findings of fact, conclusions oflaw, and recommendations set forth in the MagistrateJudge's Memorandum and Recommendation, as well asJanosek's objections, and all other relevant documents inthe record, and having made a de novo disposition ofthe portions of the Magistrate Judge's Memorandum andRecommendation to which objections were specificallydirected, the Court OVERRULES Janosek's objectionsand ADOPTS as its own the findings and conclusions ofthe Magistrate Judge. Accordingly, Gonzalez's motion toremand (D.E. 17) is GRANTED. The Court REMANDSthis action to the 214th Judicial District Court of NuecesCounty, Texas, the court from which it was removed.This ORDER is dispositive and the Clerk is instructed toterminate the remaining pending motions as moot.

*4 The Court AWARDS attorney's fees and costs infavor of Gonzalez and against Janosek. Gonzalez isORDERED to file, on or before August 21, 2017, herevidence regarding attorney's fees and costs. Janosek isORDERED to file a response by August 28, 2017.

ORDERED this 11th day of August, 2017.

All Citations

Slip Copy, 2017 WL 3474104

Footnotes1 Janosek also filed a motion for issuance of preliminary relief (D.E. 8) and two joint motions to consolidate constitutional

challenges (D.E 21 and 24). The Magistrate Judge recommends that these motions be denied because the orderremanding this case renders them moot. The Court agrees.

2 Because Janosek is proceeding pro se, the Court construes his arguments liberally. United States v. Gonzalez, 592 F.3d675, 680 n. 3 (5th Cir. 2009).

3 See also Fed. R. Civ. P. 72(b)(1) (allowing magistrate judges to issue recommendations for dispositive motions); LocalRule 72 (“The magistrate judges of this District are authorized to perform all of the duties allowed by law, including theprovisions of 28 U.S.C. § 636....”).

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.






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Morrow v. Morrow, Slip Copy (2016)


2016 WL 9709531Only the Westlaw citation is currently available.

NOT FOR PRINTED PUBLICATIONUnited States District Court,

E.D. Texas, Sherman Division.

John Randall MORROW, Jr., Plaintiff,v.

Tanya MORROW, Defendant.

CIVIL ACTION No. 4:16-cv-27|

Signed 02/22/2016

Attorneys and Law Firms

Andrew Joseph Passons, Lewis & Passons, P.C., MarkLewis, Denton, TX, for Plaintiff.

Tanya Morrow, McKinney, TX, pro se.

Opinion

ORDER GRANTING DEFENDANT'SMOTION TO REMAND

Ron Clark, United States District Judge

*1 Defendant Tanya Morrow has filed a Notice ofRemoval [Removal, Dkt. # 1] under 28 U.S.C. § 1443, astatute providing for removal in civil rights cases. Beforethe court is Plaintiff John Morrow's Motion to Remand.[Remand, Dkt. # 12].

Removal under § 1443 requires that “the right allegedlydenied the removal petitioner arises under a federal law‘providing for specific civil rights stated in terms of racialequality.’ ” Johnson v. Miss., 95 S. Ct. 1591, 1595 (1975)(quoting Ga. v. Rachel, 86 S. Ct. 1783, 1790 (1966))(emphasis added). Mrs. Morrow is a Caucasian andher Notice of Removal does not allege denial of civilrights based on her race. The Notice of Removal wasalso untimely filed and the court lacks subject matterjurisdiction over the counterclaims asserted within it.For these reasons, Mr. Morrow's Motion to Remand[Remand, Dkt. # 12] is GRANTED.

I. BACKGROUND

On June 24, 2010, Mr. John Morrow filed a Petition to

Modify Parent-Child Relationship in the 362 nd JudicialDistrict for Denton County, Texas. [Petition, Dkt. # 1-4(Ex. C) ]. That court would later file the following ordersregarding custody of the Morrow children:

• Order on Emergency Motion to Modify TemporaryOrders (March 18, 2011). Temporarily terminated allvisitation between Mrs. Morrow and her children.[Dkt. # 1-6 (Ex E) ].

• Temporary Restraining Order and Order SettingHearing (March 18, 2014). Restrained Mrs. Morrowfrom any unsupervised possession or access to herchildren until an April 1, 2014 hearing. [Dkt. # 1-9(Ex. I) ].

• Order Modifying Temporary Order After April 2014Hearing (April 28, 2014). Provided that Mrs. Morrowwould have two hours of supervised access to herchildren every other weekend. [Dkt. # 1-11 (Ex. K) ].

• Interim Orders Regarding Conservatorship andPossession (December 8, 2015). Changed Mrs.Morrow's status from managing conservator toparent possessory conservator, laid out her rights andduties as parent possessory conservator, and set thedates and times regarding her access to the childrenon alternating weekends. [Dkt. # 1-12 (Ex. L) ].

On January 7, 2016, thirty days after the state court'sDecember 8, 2015 order, Mrs. Morrow filed a Noticeof Removal [Removal, Dkt. # 1] and several Noticesaddressing various points of law and procedure. [Dkt.## 3, 5–9]. The basis of removal was 28 U.S.C. § 1443.[Removal, Dkt. # 1, at ¶¶ 1, 10]. Mrs. Morrow soughtcivil damages under several common law causes of actionand federal statutes, as well as for violation of variousConstitutional rights. [Removal, Dkt. # 1, at ¶¶ 45–53, 63–69]. She also stated that she is white [Dkt. # 6, at p. 4] anddid not allege racial discrimination.

Mrs. Morrow later filed an Opposition to Plaintiff'sMotion to Remand in which she reemphasized severalpoints in her Notice of Removal. [Opp., Dkt. # 14].She criticized Mr. Morrow for his alleged lack ofunderstanding of removal under § 1443, [Opp., Dkt. # 14,

Exhibit D


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at ¶¶ 20, 23–28], and stated no other basis for removalfrom state court. Her Opposition made no allegations ofracial discrimination.

II. DISCUSSION

A. The Court Lacks Subject Matter Jurisdiction OverMrs. Morrow's Counterclaims.*2 Mrs. Morrow's Notice of Removal claims that

violations of the United States Constitution and federallaw provide the basis of removal. [Removal, Dkt. # 1,at ¶ 16]. Given that a pro se litigant's pleadings are heldto a less stringent standard than formal pleadings draftedby lawyers, the court will construe these violations ascounterclaims. Haines v. Kerner, 92 S. Ct. 594, 596 (1972).This seems justified, given that the alleged violationsare partially described in a section entitled “COUNTSI THROUGH X,” the Notice of Removal closes witha section entitled “SUMMARY AND PRAYER,” andMrs. Morrow stated that she intended to amend herNotice of Removal under Rule 15 of the Federal Rules ofCivil Procedure.

Mrs. Morrow's counterclaims do not provide a basis forremoval. “The presence or absence of federal-questionjurisdiction is governed by the ‘well-pleaded complaintrule,’ which provides that federal jurisdiction exists onlywhen a federal question is presented on the face of theplaintiff's properly pleaded complaint.” Caterpillar, Inc. v.Williams, 107 S. Ct. 2425, 2429 (1987). A corollary to thisrule is that federal jurisdiction cannot “rest upon an actualor anticipated counterclaim.” Vaden v. Discover Bank, 129S. Ct. 1262, 1272 (2009). Here, the court clearly lackssubject matter jurisdiction over the state court divorceproceeding that forms the basis of the complaint. Remandis warranted on this basis alone.

B. Removal Is Untimely.In the Fifth Circuit, “removal statutes are to be construedstrictly against removal and for remand.” Eastus v. BlueBell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996).

Mrs. Morrow's filing of the Notice of Removal wasuntimely under 28 U.S.C. §§ 1446(b)(1) or (b)(3). Under§ 1446(b)(1), the deadline for filing a notice of removal isthe shorter period of 30 days within receipt of the initialpleadings or service of the summons. 28 U.S.C. § 1446(b)

(1). According to documents filed by Mrs. Morrow, the“Petition to Modify Parent-Child Relationship” in theunderlying state case was served on June 25, 2010. [Dkt.# 1-4 (Ex. C) at p. 9 of 15]. Because Mrs. Morrow filedher Notice of Removal on January 7, 2016, over five yearsafter the 30-day deadline for filing, it is untimely under §1446(b)(1).

Mrs. Morrow's Notice of Removal was also not timelyfiled under 28 U.S.C. § 1446(b)(3). Under that statute, “ifthe case stated by the initial pleading is not removable,a notice of removal may be filed within thirty days afterreceipt by the defendant, through service or otherwise, ofa copy of an amended pleading, motion, order or otherpaper from which it may first be ascertained that the caseis one which is or has become removable.” 28 U.S.C. §1446(b)(3).

Mrs. Morrow is incorrect in arguing that the statecourt's December 8, 2015 “Interim Orders RegardingConservatorship and Possession” [Dkt. # 1-12 (Ex. L) ]constitutes an “order or other paper from which it mayfirst be ascertained that the case is one which is or hasbecome removable” under § 1446(b)(3). [Removal, Dkt.# 1, at ¶ 7]. The December 8, 2015 order changed Mrs.Morrow's status from managing conservator to parentpossessory conservator, laid out her rights and duties asparent possessory conservator, and set the dates and timesshe would have access to her children. [Dkt. # 1-12 (Ex.L) ].

But the Notice of Removal states that the Denton Countycourt entered an Emergency Temporary RestrainingOrder with similar requirements on June 24, 2010.[Removal, Dkt. # 1, at ¶ 28]. Orders issued by the samestate court on March 18, 2011, April 1, 2014, and April 28,2014 also affected Mrs. Morrow's access to her children.So any alleged constitutional violations were known toMrs. Morrow well before December 8, 2015, the dayshe claims a violation of constitutional rights was firstascertainable.

*3 Taken together, Mrs. Morrow's removal was untimelyfiled under both 28 U.S.C. §§ 1446(b)(1) and (b)(3).Remand is warranted on this basis.

C. Absent Racial Inequality, Removal Is UnavailableUnder 28 U.S.C. § 1443.



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Even if the law permitted consideration of counterclaimswhen analyzing a removal and the Notice of Removal hadbeen timely filed, the claims Mrs. Morrow makes wouldnot justify removal under 28 U.S.C. § 1443. This statutereads as follows:

Any of the following civil actions or criminalprosecutions, commenced in a State court may beremoved by the defendant to the district court of theUnited States for the district and division embracing theplace wherein it is pending:

(1) Against any person who is denied or cannotenforce in the courts of such State a right under anylaw providing for the equal civil rights of citizensof the United States, or of all persons within thejurisdiction thereof;

(2) For any act under color of authority derived fromany law providing for equal rights, or for refusingto do any act on the ground that it would beinconsistent with such law.

The Supreme Court has held that removal under thisstatute requires satisfaction of a two-part test. “First, itmust appear that the right allegedly denied the removalpetitioner arises under a federal law ‘providing for specificcivil rights stated in terms of racial equality.’ ” Johnson v.Miss., 95 S. Ct. 1591, 1595 (1975) (quoting Ga. v. Rachel,86 S. Ct. 1783, 1790 (1966)). “Claims that prosecutionand conviction will violate rights under constitutionalor statutory provisions of general applicability or understatutes not protecting against racial discrimination, willnot suffice.” Johnson, 95 S. Ct. at 1595. Second, it mustappear, in accordance with § 1443(1), that the removingdefendant is “denied or cannot enforce” the specifiedfederal rights “in the courts of (the) State.” Johnson, 95S. Ct. at 1595. This provision normally requires thatthe “denial be manifest in a formal expression of statelaw,” such as a state legislative or constitutional provision,“rather than a denial first made manifest in the trial ofthe case.” Id. In Rachel, this factor was satisfied becausedefendants were being prosecuted for a protected activityon account of their race. Rachel, 86 S. Ct. at 1797.

In the present case, neither the Notice of Removal [Dkt.# 1] nor the Opposition to Motion to Remand [Dkt. #14] mention racial discrimination. In a Notice of Pre-Emptive Constitutional Challenge filed with her Notice ofRemoval, Mrs. Morrow stated that she is white. [Dkt. #

6, at p. 4]. As a result, removal under § 1443 is unavailableto Mrs. Morrow because she does not satisfy the first partof the Johnson test.

The court is mindful of Mrs. Morrow's disagreementwith the Supreme Court's limitation of § 1443 toclaims involving racial equality. [Notice of Pre-EmptiveConstitutional Challenge, Dkt. #6]. The court is alsomindful that the pleadings of a pro se litigant are heldto less stringent standards than pleadings drafted by alawyer, Kerner, 92 S. Ct. at 596, and that Mrs. Morrowbrought this very point to the court's attention. [Noticeof Special Pro Se Litigant Rights, Dkt. # 7]. But pro sepleadings cannot be construed so liberally that the courtignores the binding precedent of higher courts that itis required to follow. Under Johnson, removal under §1443 is unavailable to Mrs. Morrow because her pleadingsprovide no support for denial of a civil right on the basisof racial inequality.

D. The Court Will Not Permit Further Amendments tothe Notice of Removal.*4 On January 7, 2016, Mrs. Morrow filed with her

Notice of Removal a Notice of Pending Amendment [Dkt.# 9], in which she stated that she intended to file anamendment to her Notice of Removal within the timeframe stated in Federal Rule of Civil Procedure 15. Shemade no such filing, either within the 24 days proscribedby Rule 15 (21 days) and Rule 6 (3 additional days) or bythe February 10, 2016 date that she stated was her filingdate for such amendments. [Opp., Dkt. # 14, at ¶ 13]. Anyamendment, even by Mrs. Morrow's promised deadline, istherefore untimely.

Any subsequent amendment would be futile. Mrs.Morrow has repeatedly emphasized that she seeksremoval under 28 U.S.C. § 1443. The Supreme Court haslimited the applicability of that statute to situations inwhich “the right allegedly denied the removal petitionerarises under a federal law providing for specific civilrights stated in terms of racial equality” and the removingdefendant is “denied or cannot enforce” the specifiedfederal rights “in the courts of the State.” Johnson, 95 S.Ct. at 1595 (internal citations and quotations omitted). Asalready noted, Mrs. Morrow is not a member of a racialminority and does not raise a claim stated in terms of racialequality. This procedural defect could not be corrected byway of further amendment.








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E. Counsel's Filing of a Motion to Remand Constitutesan Appearance.Mrs. Morrow is incorrect in arguing that the court shouldignore any filings made by Mr. Morrow's attorneys untilthey file a Notice of Appearance. [Opp. Remand, Dkt. #14, at ¶¶ 1–6]. In the Eastern District of Texas, the attorneysigning a party's first filing as lead attorney is consideredto have made an appearance and will be listed as leadattorney on the docket sheet. In this case, Mr. AndrewPassons signed Mr. Morrow's first filing, the Motion toRemand [Dkt. # 12], and is listed as lead attorney forMr. Morrow. Because of this, a separately-filed Notice ofAppearance is not required for Mr. Passons.

F. The Motion to Remand Was Not Filed Prematurely.Finally, Mrs. Morrow is incorrect in arguing that Mr.Morrow should have waited until after she filed heramended Notice of Removal to file a Motion to Remand.[Dkt. # 14, ¶¶ 7–14]. By statute, Mr. Morrow had 30days from the filing of the Notice of Removal to filea Motion to Remand. 28 U.S.C. § 1447(c). Nothing in

the Federal Rules of Civil Procedure prohibit the earlysubmission of court filings or require a party to waitfor potential amendments. Furthermore, Mr. Morrow'sarguments regarding untimeliness, waiver, and lack ofsubject matter jurisdiction are all related to deficienciesthat conceivably would not be remedied through furtheramendment. Early submission of the Motion to Remandis no basis for imposing sanctions.

III. CONCLUSION

It is therefore ORDERED that Mr. Morrow's Motion toRemand [Dkt. # 12] is GRANTED.

So ORDERED and SIGNED this 22 day of February,2016.

All Citations

Slip Copy, 2016 WL 9709531

End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works.


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