AMOS L. MAZZANT, District 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.
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). 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.
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
Defendant also makes the following arguments in his objections:
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 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:
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 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 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 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:
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, 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.
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
