United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
Rodney Andrew Underwood seeks leave to proceed in forma
pauperis in this action. Based on the information in
defendant's financial affidavit, the Court will grant
defendant's motion to proceed in forma pauperis. Based
upon a review of the complaint, the Court will dismiss this
action without prejudice.
28 U.S.C. § 1915(e), the Court is required to dismiss a
complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief can be
granted. To state a claim for relief, a complaint must plead
more than “legal conclusions” and
“[t]hreadbare recitals of the elements of a cause of
action [that are] supported by mere conclusory
statements.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A plaintiff must demonstrate a plausible claim
for relief, which is more than a “mere possibility of
misconduct.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. at 678. Determining whether a complaint states a
plausible claim for relief is a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. Id. at 679.
reviewing a complaint under 28 U.S.C. § 1915(e), the
Court accepts the well-pled facts as true. Furthermore, the
Court liberally construes the allegations.
28, 2016, defendant Rodney Andrew Underwood was charged with
felony forgery in Jefferson County Court. Since July 12,
2016, defendant has been released on bond. Defendant's
state court file includes many pro se filings and letters to
the judge, including a letter regarding the Jefferson County
Court's alleged lack of jurisdiction; an affidavit of
denial of United States Citizenship; waiver of “all
claims without God;” notice of estoppel and stipulation
of constitutional challenge; affidavit of denial of forgery;
and “affidavit of notary presentment.” On October
13, 2017, a warrant was issued for defendant's failure to
appear at his trial. A bond forfeiture hearing is scheduled
for December 11, 2017. See State v. Underwood, Case
No. 16JE-CR01585 (Jefferson County).
filed this action on October 24, 2017. Liberally construing
defendant's complaint (titled “Notice of Breach of
Trust and Opportunity to Cure Claim of Tort” and filed
as a Notice of Removal), defendant either wants to remove his
state court criminal case to this Court, or he wants this
Court to intervene in his state court criminal proceeding.
See, e.g., Doc. 1 at 4 (“there are several of
my unalienable rights . . . that are currently being violated
. . . [by the Missouri criminal case], ” seeking to
“extinguish or cancel” his Missouri criminal
case); see also Compl., Attach. 2 (state court file)
and Attach. 3 (civil cover sheet indicating removal action).
As explained below, however, no removal provisions provide a
basis for removal of the state court proceedings. Moreover,
the Court will not intervene in defendant's ongoing state
court criminal matter.
defendant has not cited any basis for removal of his state
court criminal prosecution to this Court, the Court notes
that three federal statutes allow for the removal of certain
criminal prosecutions from state to federal court. Those
statutes are extraordinarily limited, however, and none of
the three statutes allows for removal of this matter.
28 U.S.C. § 1442 provides that civil and criminal
actions commenced in state court against the United States
itself and against officers of the United States acting under
color of office may be removed to federal court. Defendant
has not sought to invoke § 1442, and there is no reason
to believe that he could have successfully invoked §
1442 if he had tried.
28 U.S.C. § 1442a allows for removal “of a civil
or criminal prosecution in a court of a State of the United
States against a member of the armed forces of the United
States” who was acting under color of his status as a
member of the armed forces. There is similarly no indication
in the documents filed by defendant that he is a member of
the United States armed forces or that he was acting under
color of his status as a member of the armed forces.
28 U.S.C. § 1443 allows for very limited removal of
criminal prosecutions in state court to federal court. In
order to remove a case under § 1443(1), a defendant must
show (1) “that the right allegedly denied the removal
petitioner arises under a federal law providing for specific
civil rights stated in terms of racial equality” and
(2) “that the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the
State.” Johnson v. Mississippi, 421 U.S. 213,
219 (1975) (quotations omitted). Defendant satisfies neither
prong of this test. As such, defendant may not invoke §
1443 as a basis for removing this prosecution to federal
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.” 28
U.S.C. § 1455(b)(4). For the reasons provided above,
removal cannot be permitted in this ...