Liberal, Kansas, City of v. Thiessen

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CITY OF LIBERAL, KANSAS,
Plaintiff,
v.
PETER THIESSEN,
Defendant.
Case No. 25-1225-HLT-BGS
MEMORANDUM & ORDER GRANTING IFP MOTION AND
REPORT & RECOMMENDATION FOR DISMISSAL OR REMAND
This matter was originally filed in Municipal Court for Liberal, Kansas. (Doc. 4, at 4.)
Defendant Peter Thiessen, who is representing himself pro se, filed a notice of removal to bring the
case to federal court for the District of Kansas. (Doc. 1.) Currently before the Court is Defendant’s
motion to proceed without prepayment of fees, which is a motion requesting leave for Plaintiff to
proceed in forma pauperis (IFP), in which he seeks to have the Court waive the required federal court
filing fee. (Doc. 3, sealed.) For the reasons set forth below, the IFP motion is GRANTED while
the undersigned Magistrate Judge RECOMMENDS to the District Court that this case be
dismissed or remanded to municipal court.
I. 	Motion to Proceed
In Formal Pauperis.
Under 28 U.S.C. § 1915(a), a federal court may authorize commencement of a civil action
“without prepayment of fees or security therefor, by a person who submits an affidavit that … the
person is unable to pay such fees or give security therefor.” To succeed on an IFP motion, “the
movant must show a financial inability to pay the required filing fees.” Lister v. Dep’t of Treasury, 408
F.3d 1309, 1312 (10th Cir. 2005). Proceeding IFP “in a civil case is a privilege, not a right –
fundamental or otherwise.” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir. 1998). The decision to
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grant or deny IFP status under § 1915 lies within the district court’s sound discretion. Engberg v.
Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).
Upon reviewing the financial affidavit provided by Defendant, the Court finds that his
financial situation, when taking into account any income as well as debts and financial obligations,
establishes his inability to pay the required filing fee to remove this case to federal court and his
access to the court would be significantly inhibited if this motion was not granted. Thus, the Court
GRANTS his motion to proceed without prepayment of fees (Doc. 3, sealed).
II. 	Standards for 28 U.S.C. § 1915 Screening.
Pursuant to 28 U.S.C. § 1915(e)(2), when a party seeks to proceed in forma pauperis, the court
is required to screen the case and must dismiss it at any time if it is determined that the action (1) is
frivolous or malicious, (2) fails to state a claim upon which relief may be granted, or (3) seeks
monetary relief from a defendant who is immune from suit. The purpose of § 1915(e) is to
“discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that
paying litigants generally do not initiate because of the costs of bringing suit and because of the
threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11.” Neitzke v.
Williams, 490 U.S. 319, 327 (1989).
In effectuating this process, the sufficiency of the pleadings are reviewed under the standards
used when ruling on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Kay v. Bemis, 500 F.3d
1214, 1217–18 (10th Cir. 2007). The underlying complaint (here removed from municipal court)
and/or removal documents “must allege sufficient facts to state a claim which is plausible – more
than merely conceivable – on its face.” Fisher v. Lynch, 531 F. Supp. 2d 1253, 1260 (D. Kan. Jan. 22,
2008) (citation omitted).
“Apart from the court’s obligation to screen IFP complaints for merit, the court has an
independent obligation to determine if subject-matter jurisdiction exists.” Martinez v. Pickering, No.
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21-4083-JAR-ADM, 2021 WL 12146947, at *2 (D. Kan. Dec. 8, 2021), Report and Recommendation
adopted, No. 21-4083-JAR-ADM, 2022 WL 21778539 (D. Kan. Feb. 28, 2022) (citation omitted). As
courts of “limited subject-matter jurisdiction,” federal courts “may only hear cases when empowered
to do so by the Constitution and by act of Congress.” Gad v. Kan. State Univ., 787 F.3d 1032, 1035
(10th Cir. 2015)). In addition, it is well-established in this District that a complaint will be
considered frivolous pursuant to § 1915(d) “if its subject matter is outside the jurisdiction of the
court.” Oltremari by McDaniel v. Kan. Social & Rehabilitative Serv., 871 F. Supp. 1331, 1333 (D. Kan.
1994). “If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
III. 	Removal Standards.
Plaintiff has alleged that “removal is proper under 28 U.S. Code §§ 1331, 1441, and 1443.”
(Doc. 1, at 3.) Section 1331 is federal question jurisdiction. Section 1441 governs the removal to
federal district court of state court civil actions wherein the federal district court has “original
jurisdiction.” Section 1443 allows removal of certain state court civil actions or criminal
prosecutions in which an individual is denied or cannot enforce their civil rights.
While a party may remove a state court case to federal court, this may occur “only if a
federal district court would have original jurisdiction over the claim in suit.” Jefferson Cnty, Ala. v.
Acker, 527 U.S. 423, 430 (1999). “This jurisdictional prerequisite to removal is an absolute, non-
waivable requirement.” Hunt v. Lamb, 427 F.3d 725, 726 (10th Cir. 2005) (citation omitted). The
burden of establishing federal court subject matter jurisdiction rests on the party seeking removal.
Kansas State Univ. v. Price, 673 F. Supp. 2d 1287, 1293 (D. Kan. 2009). The removal documents must
facially “demonstrate that subject-matter jurisdiction exists either based on diversity of the parties
under 28 U.S.C. § 1332 or based on a federal question presented by the claim under 28 U.S.C. §
1331.” Martinez, 2021 WL 12146947, at *2.
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1. 	Lack of diversity.
Although not mentioned by Defendant in the removal documents, the Court will first
address the possibility of diversity jurisdiction pursuant to 28 U.S.C. § 1332. It is well-established
that because an action “is not removable from a state to federal court unless it might have been
brought originally in a federal court, the basic principles of diversity jurisdiction, such as the
requirement of complete diversity between plaintiffs and defendants and the amount in controversy
requirement are fully applicable to Section 1441(b).” 14A Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3723 at p. 306–307 (1985). “Complete
diversity” exists when “all parties on one side of the litigation are of a different citizenship from all
parties on the other side of the litigation.” Depex Reina 9 Partnership v. Texas Int’l Petroleum Corp., 897
F.2d 461, 463 (10th Cir.1990).
Neither the municipal court records nor Defendant’s removal documents allege facts to
establish diversity jurisdiction. (See generally Doc. 1, Doc. 4.) To the contrary, Plaintiff is a
municipality in the state of Kansas, while Defendant lists his address as Plains, Kansas. While
nothing in the pleadings conclusively establish Defendant’s state of citizenship, see PHH Mortgage
Corp. v. Stuber, 23-1123-DDC-TJJ, 2023 WL 4999153, *2 (D. Kan. 2023), there is no evidence that he
is the citizen of a state other than Kansas. Thus, there is no showing, facial or otherwise, that this
Court has jurisdiction based on diversity of the parties pursuant to 28 U.S.C. § 1332.
2. 	§ 1443 civil rights actions.
The Court also rejects Defendant’s reliance on 28 U.S.C. § 1443 as a basis for removal.
Section 1443, which allows removal of the following types of state cases where a person is denied or
cannot enforce their civil rights in the courts of such State:
(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; (2) For any act under color of authority derived from any law
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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. This section has been found to apply to matters involving an element of racial
inequality.
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 law providing for specific civil rights stated in
terms of racial equality. 	Thus, the defendants’ broad contentions
under the First Amendment and the Due Process Clause of the
Fourteenth Amendment cannot support a valid claim for removal
under § 1443, because the guarantees of those clauses are phrased in
terms of general application available to all persons or citizens, rather
than in the specific language of racial equality that § 1443 demands.
… § 1443 ‘applies only to rights that are granted in terms of equality
and not to the whole gamut of constitutional rights * * *.’ ‘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.’
State of Georgia v. Rachel, 384 U.S. 780, 792, 86 S. Ct. 1783, 1790, 16 L.Ed.2d 925 (1966) (internal
citations omitted).
Thus, “[t]he United States Supreme Court has established a two part test for section 1443
removal petitions.” Akhlaghi v. Berry, 294 F. Supp. 2d 1238, at 1241-42 (D. Kan. 2003) (citation
omitted).
First, it must appear that “the right allegedly denied the removal
petitioner arises under a federal law ‘providing for specific civil rights
stated in terms of racial equality.’” [State of Colorado v. Lopez, 919 F.2d
131, 132 (10th Cir. 199)] (quoting Johnson v. Mississippi, 421 U.S. 213,
219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (quoting [Rachel, 384 U.S. at
792, 86 S.Ct. at 1790])). 	Second, it must appear “that the removal
petitioner is ‘denied or cannot enforce’ the specified federal rights ‘in
the courts of [the] State.’” Id. (quoting Johnson, 421 U.S. at 219, 95 S.Ct.
1591) (quoting 28 U.S.C. § 1443(1) (1988)).
Akhlaghi, 294 F. Supp. 2d at 1241-42.
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The Court is unable to discern a racial element to Defendant’s notice of removal, which
asserts “ deprivation of rights under color of law, deprivation of rights under color of office, denial
of due process, violations of the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution
for the United States.” A generic reference to “deprivation of rights” or “denial of due process”
does not constitute allegations of racial discrimination.
As for Defendant’s citations in his notice of removal to various Amendments to the United
States Constitution (see Doc. 1, at 3), the Court finds these Amendments to be irrelevant to the §
1443 analysis herein. The Fourth Amendment protects individual from unreasonable government
searches and seizures. The Fifth Amendment guarantees certain rights in the U.S. legal system, most
famously the right against self-incrimination. The Six Amendment gives criminal defendants the
right to a fair, fast, and public trial with a lawyer, an impartial jury, the right to confront their
accusers, and the opportunity to present their own witnesses. Finally, the Eight Amendment
prohibits the imposition of cruel and unusual punishment or unreasonable amounts for bail or fines.
None of these Amendment have a stated racial component. As such, Defendant fails the § 1443 test
and he cannot remove this case to federal court pursuant to this section.
3. 	The
Younger abstention doctrine and § 1443 federal question jurisdiction.
Even assuming Plaintiff could establish that his case meets the racial equality test of 28
U.S.C. § 1443, he still fails to establish federal court jurisdiction. Pursuant to the notice of removal,
the underlying municipal court case
arises from traffic citation number: E216108 issued the 23rd of May
2025 citing violations of no seatbelt, no proof of insurance, and no
registration during which Defendant was compelled under threat of
imprisonment to provide license, registration, and insurance for not
wearing a seatbelt, compelled to exit the automobile under threat of
imprisonment, falsely searched and accosted by the officers of the
Liberal Police Department to remove Defendant’s utility knife, and
Defendant’s automobile was seized vi et armis absent a warrant, against
Defendant’s objections.
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(Doc. 1, at 2.) The municipal court records clearly establish that the underlying case involves alleged
violation(s) of municipal court traffic ordinances. (See generally Doc. 4.) Further, Defendant
continues that “[t]he proceeding initiated in the City of Liberal Municipal Court arises solely under
municipal ordinance and administrative enforcement, not under a valid act of Congress or
constitutional law.” (Doc. 1, at 3.)
To the extent Defendant is asking the Court to intervene in municipal court traffic/criminal
proceedings, the Court is barred from doing so on the ground of the Younger abstention doctrine.
See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). “Younger abstention dictates
that federal courts not interfere with state court proceedings by granting equitable relief – such as
injunctions of important state proceedings or declaratory judgments regarding constitutional issues
in those proceedings – when such relief could adequately be sought before the state court.”
Amanatullah v. Colorado Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (internal quotation
marks omitted); see also Schwab v. Kansas, 691 Fed. Appx. 551, 514 (10th Cir. 2017). In this regard,
[a] federal court must abstain from exercising jurisdiction when: (1)
there is an ongoing state criminal, civil, or administrative proceeding,
(2) the state court provides an adequate forum to hear the claims raised
in the federal complaint, and (3) the state proceedings “involve
important state interests, matters which traditionally look to state law
for their resolution or implicate separately articulated state policies.”
… 	Younger abstention is non-discretionary; it must be invoked once
the three conditions are met, absent extraordinary circumstances.
Id. (emphasis added) (citation and internal quotation marks omitted).
In the present situation, all three Younger factors are present. There is, however, a potential
exception to the Younger abstention doctrine as it “does not apply in cases of proven harassment or
prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction
and perhaps in other extraordinary circumstances where irreparable injury can be shown.” Id. at
1165 (internal quotation marks omitted). When this is at issue, it is the “heavy burden” of the party
seeking federal court jurisdiction “to overcome the bar of Younger abstention by setting forth more
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than mere allegations of bad faith or harassment.” Id. (brackets and internal quotation marks
omitted).
Based on what Defendant included in his filings to the Court, he has failed to meet the
heavy burden to show that he was a victim of proven harassment or that the state court adjudication
was undertaken in bad faith. While he may be able to do so as this case progresses, at the present
stage the Court is faced with mere unsupported allegations. Thus, the Court finds no basis for an
exception to application of the Younger abstention doctrine that would allow the application of
federal question jurisdiction pursuant to § 1443.
Because it is clear that Defendant’s removal documents have alleged no facts to support
either diversity jurisdiction or federal question jurisdiction, the Court lacks subject-matter
jurisdiction over the claims presented herein. As such, the undersigned Magistrate Judge
recommends to the District Court that this matter be DISMISSED or REMANDED to the
Municipal Court of Liberal, Kansas for further proceedings.
Pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and D. Kan. Rule 72.1.4(b),
Defendant may file written objections to this Report and Recommendation within fourteen days
after being served with a copy. If he fails to file objections within the fourteen-day period, no
appellate review of the factual and legal determinations in this report and recommendation will be
allowed by any court. See In re Key Energy Res. Inc., 230 F.3d 1197, 1199-1200 (10th Cir. 2000).
IT IS SO RECOMMENDED.
Dated December 10, 2025, at Wichita, Kansas.
/s/BROOKS G. S EVERSON
Brooks G. Severson
United States Magistrate Judge
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