NH, State of v. Everett

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.”
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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
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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
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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
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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.
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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).
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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
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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
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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
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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
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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
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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)
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