1:24-cv-00294•NH, State of v. Everett
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE State of New Hampshire et al.1 v. Civil No. 24-cv-294-LM-AJ Joseph L. Everett2 REPORT AND RECOMMENDATION Before the court is the notice of removal (Doc. No. 1) filed by the state court defendant, Joseph L. Everett, removing his misdemeanor prosecution from the New Hampshire Circuit Court, 9th Circuit, District Division – Milford (“Milford District Court”), see State v. Everett, No. 458-2024-CR-00623 (N.H. Cir. Ct., 9th Cir., Dist. Div.-Milford); Mr. Everett’s addendum to that notice of removal (Doc. No. 3); his motion to remand (Doc. No. 4); and his request for injunctive relief (Doc. No. 5). Mr. Everett’s filings are here for preliminary review under 28 U.S.C. § 1455(b)(4) and LR 4.3(d)(2). Also pending at 1 The pro se removal defendant has named the State of New Hampshire; the N.H. Circuit Court, 9th Circuit, District Division – Milford (“Milford District Court”); Milford District Court Judge Todd H. Prevett; and the Amherst Police Department as the plaintiffs. 2 Joseph L. Everett’s name is rendered several ways in his filings, with variant punctuation and abbreviations. This court refers to him as “Joseph L. Everett” or “Mr. Everett.” Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 1 of 12
2 this time is the plaintiffs’ motion for remand (Doc. No. 7), filed by counsel for the Town of Amherst. Standard This court construes Mr. Everett’s filings liberally, as they appear to have been prepared and filed without the assistance of counsel. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). State criminal defendants may remove pending state prosecutions to federal court in limited circumstances defined by federal statutes. Removal jurisdiction for state criminal cases is available as provided in 28 U.S.C. § 1442, for certain prosecutions against federal agencies and officers; in 28 U.S.C. § 1442a, for certain prosecutions against members of the armed forces; and in 28 U.S.C. § 1443, for certain types of prosecutions implicating the protection, or violation, of rights to racial equality, see generally City of Greenwood v. Peacock, 384 U.S. 808, 824 & n.22, 827–28 (1966). A federal statute, 28 U.S.C. § 1455, sets out the procedures that apply when state criminal prosecutions are removed to federal court. The state criminal court retains jurisdiction to proceed in the matter after the filing of a notice of removal, except that a judgment of conviction cannot Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 2 of 12
3 be entered unless the case is remanded. See id. § 1455(b)(3). Section 1455(b)(4) authorizes the summary remand of state criminal prosecutions where the removal documents, on their face, show that the removal is not proper: The United States district court in which such notice [of removal] is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand. Id. § 1455(b)(4); see also LR 4.3(d)(2) (directing clerk’s office to forward initial filings of in forma pauperis removal defendants to the magistrate judge for preliminary review). Background Following a traffic stop in August 2024, Joseph L. Everett was arraigned in Milford District Court on September 9, 2024, on one misdemeanor charge of disobeying an officer and on traffic violations charging him with driving an unregistered vehicle and failing to display license plates. See State v. Everett, No. 458-2024-CR-00623 (N.H. Cir. Ct., 9th Cir., Dist. Div.-Milford, filed Aug. 10, 2024). That matter remains pending in Milford District Court. Cf. 28 U.S.C. § 1455(b)(3). The notice of removal here (Doc. No. 1), which this court’s clerk’s office filed as the initial pleading in a new federal civil case, seeks removal of Mr. Everett’s state misdemeanor Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 3 of 12
4 prosecution upon which claims of violations of Mr. Everett’s federal rights, including his First Amendment right to petition the government for redress of grievances; his Fourth Amendment rights; his rights to due process and equal protection under the Fifth and Fourteenth Amendments; and his fundamental right to travel protected by the Ninth Amendment and the Due Process Clause. Mr. Everett cites his Selective Service registration; his claims of federal constitutional torts; his allegations of violations of legal doctrines and federal laws relating to contracts, debts, commercial paper, and consumer protection; and federal and state criminal statutes, as additional bases for this court’s exercise of jurisdiction over his state criminal case. His addendum to that notice of removal (Doc. No. 3) asserts similar claims. Mr. Everett’s most recent filings in this case include his motion to remand (Doc. No. 4) and his request for injunctive relief (Doc. No. 5). Mr. Everett’s motion to remand seeks this court’s order finding that this court lacks subject matter jurisdiction over this case and remanding the state prosecution “to the appropriate court that has original jurisdiction over the matter.” Doc. No. 4. Mr. Everett’s request for injunctive relief (Doc. No. 5) asks this court to grant relief and/or to enjoin his state prosecution, based upon his claims that his Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 4 of 12
5 arrest was unconstitutional; that the state prosecution lacks a proper evidentiary basis and is unlawful; and that rulings in, and the underlying grounds for, the state prosecution violate his right to due process and amount to criminal misconduct in violation of 18 U.S.C. § 241 and 18 U.S.C. § 242. Also pending at this time is the plaintiffs’ motion for remand (Doc. No. 7), which counsel for the Town of Amherst filed on behalf of the Town and the State. Plaintiffs seek a remand of the state prosecution on the ground that this court lacks any removal jurisdiction over the state prosecution. Discussion I. Removal Jurisdiction A removal petition must generally set forth the grounds for the federal court’s removal jurisdiction. Additional grounds not pleaded may be deemed waived unless good cause for the failure to plead is shown. See 28 U.S.C. § 1455(b)(2). Here, the removal notice and its addendum (Doc. Nos. 1, 3) invoke 28 U.S.C. § 1441 as authority for the removal of Mr. Everett’s criminal case. That statute, however, applies only to the removal of state civil cases and is inapplicable to the removal of Mr. Everett’s state criminal prosecution. Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 5 of 12
6 Mr. Everett also refers to his Selective Service registration. But that reference and the remaining facts alleged in Mr. Everett’s initial pleadings fail to show that the federal officer removal statute or the armed forces removal statute authorize the removal of his state criminal case. Cf. 28 U.S.C. §§ 1442(a), 1442a. Nor are there allegations showing that removal is authorized under 28 U.S.C. § 1443(2); Mr. Everett is neither a federal agent, nor a person authorized to act with or for a federal officer or agent, who has been prosecuted for “affirmatively executing duties under any federal law providing for equal civil rights”; and he is not a state officer prosecuted for refusing to do any act on the ground that it would be inconsistent with a federal law providing for equal civil rights. Peacock, 384 U.S. at 824 & n.22. Mr. Everett’s claims of violations of his federal civil rights in his state prosecution suggest he sought to fit this case within this court’s removal jurisdiction under 28 U.S.C. § 1443(1). That statute allows state court prosecutions to be removed if they are proceeding: [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). Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 6 of 12
7 To remove a case under § 1443(1), the state criminal defendant must demonstrate both of the following: (1) “that the [federal] right allegedly denied . . . arises under a federal law providing for specific civil rights stated in terms of racial equality,” and (2) that the “specified federal rights” are denied or cannot be enforced “in the courts of [the] State.” Johnson v. Mississippi, 421 U.S. 213, 219 (1975) (internal quotation marks and citations omitted). It is not enough to support removal under § 1443(1) to allege or show that the defendant’s federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. Peacock, 384 U.S. at 827. In general, [u]nder § 1443(1), the vindication of the defendant’s federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. Id. at 828. There is no state or federal law cited in the notice of removal or in Mr. Everett’s later filings that could allow this court to predict a contrary outcome in Mr. Everett’s state prosecution. Moreover, this court presumes that the state courts, including the State’s highest court, are as capable as their federal counterparts, in Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 7 of 12
8 safeguarding Mr. Everett’s federal rights. See Bettencourt v. Bd. of Reg. in Med., 904 F.2d 772, 776 (1st Cir. 1990). In short, an examination of the face of the removal documents shows that this is not a state prosecution that lies within this court’s removal jurisdiction. A summary remand is required, mooting the pending motions for a remand (Doc. Nos. 4, 7), filed by Mr. Everett and the plaintiffs. II. Younger Abstention A. Request for Injunctive Relief (Doc. No. 5) Mr. Everett’s request for injunctive relief (Doc. No. 5) asks this court to issue unspecified equitable relief in relation to his state case. But as this court lacks removal jurisdiction, this court cannot issue any relief within that prosecution. And to the extent Mr. Everett seeks an order here that could interfere with the state prosecution, his request in that regard is also unavailing. In Younger v. Harris, 401 U.S. 37, 46-47 (1971), the Supreme Court held that, as a general matter, federal courts must not interfere with or enjoin state criminal prosecutions. Where Younger applies, and the case is an ongoing matter that is judicial in nature, implicating important state interests, and the state forum provides an adequate opportunity for raising the Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 8 of 12
9 federal claims at issue, federal court abstention is mandatory, and the abstaining federal court is deprived of discretion to grant any injunctive or declaratory relief. See Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 816 n.22 (1976); Sirva Relocation, LLC v. Richie, 794 F.3d 185, 192, 196 (1st Cir. 2015). The few extraordinary circumstances involving state criminal cases where abstention is not required include state prosecutions brought in bad faith for purposes of harassment, cases in which the state forum provides inadequate protection of federal rights, and cases where the statute at issue in the state proceedings is “‘flagrantly and patently violative of express constitutional prohibitions.’” Sirva Relocation, 794 F.3d at 192 (citations omitted). Mr. Everett’s ongoing state criminal case implicates important state interests in enforcing laws relating to citizen interactions with law enforcement officers and the regulation of traffic on state highways. Nothing in the record here suggests any bad faith or harassment, any inadequacy of the state forum (including the New Hampshire Supreme Court) for assertion of Mr. Everett’s federal claims for equitable relief, or any other extraordinary circumstances here, which could exempt Mr. Everett’s request for injunctive relief from abstention under Younger. The Younger doctrine thus requires this court to Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 9 of 12
10 abstain and not to interfere with Mr. Everett’s ongoing criminal case. Accordingly, the district judge should deny his request for injunctive relief (Doc. No. 5), and all of Mr. Everett’s claims for injunctive or declaratory relief in this case should be dismissed without prejudice. B. Claims for Damages Mr. Everett’s notice of removal asserts claims for damages as well as claims for declaratory or injunctive relief. Where the relief requested is damages, and the underlying state proceeding cannot provide such relief, abstention is appropriately effected through a stay. See Rossi v. Gemma, 489 F.3d 26, 38 (1st Cir. 2007); see also Cassell v. Osborn, 23 F.3d 394, 1994 WL 159424, at *2, 1994 U.S. App. LEXIS 8991, at *9 (1st Cir. Apr. 26, 1994) (unpublished table decision) (“monetary claims which cannot be asserted in a parallel state proceeding ordinarily are stayed pending completion of the state case” (citing Deakins v. Monaghan, 484 U.S. 193, 204 (1988))). This federal action was initiated not by the filing of a complaint for damages, but by the filing of a notice of removal. This court lacks removal jurisdiction for reasons stated herein. To avoid unnecessarily complicating this court’s docket, the district judge should not retain any jurisdiction here by Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 10 of 12
11 staying the damages claims. Rather, the district judge should remand the criminal case and dismiss this civil action in its entirety, without prejudice to Mr. Everett’s ability to file a new civil action in an appropriate forum against appropriate defendants, seeking damages. Mr. Everett’s claims in that case would be subject to preliminary review, as appropriate, see, e.g., 28 U.S.C. § 1915(e)(2); LR 4.3(d)(1)-(3). Conclusion For the foregoing reasons, the magistrate judge recommends as follows: (1) The district judge should remand Mr. Everett’s state criminal prosecution, State v. Everett, No. 458-2024-CR-00623 (N.H. Cir. Ct., 9th Cir., Dist. Div.-Milford), to the State court, pursuant to 28 U.S.C. § 1455(b)(4), and this court’s clerk office must mail a certified copy of the order of remand to the clerk of the State court, pursuant to 28 U.S.C. § 1447(c); (2) The district judge here should deny as moot Mr. Everett’s motion to remand (Doc. No. 4) and the plaintiffs’ motion to remand (Doc. No. 7); (3) The district judge here should deny Mr. Everett’s request for injunctive relief (Doc. No. 5); and (4) The district judge here should dismiss this civil case in its entirety, without prejudice to further proceedings in State v. Everett, No. 458- 2024-CR-00623 (N.H. Cir. Ct., 9th Cir., Dist. Div.-Milford) (including any appeals or postjudgment or collateral proceedings in that case), and without prejudice to Mr. Everett’s ability to file a new civil action seeking Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 11 of 12
12 damages against appropriate defendants. Then this court’s clerk may properly enter judgment and close this federal civil case. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Only those issues raised in the objection(s) to this Report and Recommendation are subject to review in the district court. See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by such objection(s) are precluded on appeal. See id. Failure to file specific written objections to the Report and Recommendation within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres- Centeno, 842 F.3d 163, 168 (1st Cir. 2016). __________________________ Andrea K. Johnstone United States Magistrate Judge November 7, 2024 cc: Joseph L. Everett, pro se Demetrio F. Aspiras, III, Esq. N.H. Attorney General’s Office (courtesy copy) Case 1:24-cv-00294-LM-AJ Document 8 Filed 11/07/24 Page 12 of 12
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