Arizona, State of v. Scioli

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 State of Arizona, et al., No. CV-22-00230-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Dana Scioli, 13 Defendant. [14] 15 Defendant Dana Scioli (“Defendant”) has attempted to remove her state criminal 16 case to this Court. (Doc. 1.) The Court will remand back to Scottsdale City Court. 17 “A federal court must examine a defendant’s notice to determine whether removal 18 is appropriate, and the court has the authority to remand a case, sua sponte, for lack of 19 subject matter jurisdiction.” Gedo v. Idaho, 2009 WL 2848850 , at *1 (D. Idaho Aug. 28, 20 2009) (citing 28 U.S.C. § 1446 (c)(4)). “[A] defendant may not remove a case to federal 21 court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” 22 (emphasis in original) (quoting Franchise Tax Board v. Construction Laborers Vacation 23 Trust, 463 U.S. 1, 10 (1983)). 24 The Notice, which was filed by Defendant, alleges that removal is appropriate 25 because “plaintiff’s cause of action is a federal question arising under the laws of the 26 United States.” (Doc. 1 at 2.) But that is wrong. The underlying complaint is an 27 “Arizona Traffic Ticket and Complaint” and has been marked as a criminal matter. (Doc. 28 1 at 4.) 1 Generally, “a federal court should abstain from interfering with ongoing state 2 criminal proceedings[.]” Gedo, 2009 WL 2848850 , *1 (citing Younger v. Harris, 401 3 U.S. 37, 43-45 (1971)). A state prosecution may be removed to federal court only under 4 the narrow circumstances set forth in 28 U.S.C. §§ 1442 , 1442a, and 1443. And under 28 5 U.S.C. § 1455 (b)(4), the Court must “promptly” examine the defendant’s removal papers 6 and “[i]f it clearly appears . . . that removal should not be permitted, the court shall make 7 an order for summary remand.” 8 Here, Defendant has not alleged that she is a federal officer or a member of the 9 United States armed forces, so 28 U.S.C. §§ 1442 and 1442a do not apply. [10] 28 U.S.C. § 1443 (1) authorizes removal where the defendant “is denied or cannot 11 enforce in the courts of such State a right under any law providing for the equal civil 12 rights of citizens of the United States . . . .” “This generally requires a state law or 13 constitutional provision that denies the defendant an opportunity to raise a federal right.” 14 Hollander v. S.F. County Super. Ct., 2009 WL 975428 , *1 (N.D. Cal. 2009) (citation 15 omitted). Here, Defendant has not attempted to identify any state law or constitutional 16 provision that denies her the opportunity to raise a federal right in state court, nor has she 17 shown that she will be unable to enforce a federal right in state court. See also Johnson v. 18 Washington, 2007 WL 2377141 , *1 (W.D. Wash. 2007) (section 1443(1) “is strictly 19 construed because it is considered an encroachment on state court jurisdiction”). 20 Finally, 28 U.S.C. § 1443 (2) authorizes removal “[f]or any act under color of 21 authority derived from any law providing for equal rights, or for refusing to do any act on 22 the ground that it would be inconsistent with such law.” The Supreme Court has 23 construed this provision as conferring “‘a privilege of removal only upon federal officers 24 or agents and those authorized to act with or for them in affirmatively executing duties 25 under any federal law providing for equal civil rights.’” Gedo, 2009 WL 2848850 , *1 26 (citation omitted). This case does not fall within that category. Accordingly, 27 … 28 … 1 IT IS ORDERED that all pending applications and motions are denied as moot, 2|| and the Clerk shall remand this case to Scottsdale City Court. 3 Dated this 23rd day of March, 2022. [4] 5 Lom ee” 6 f t _ Dominic W. Lanza 7 United States District Judge [28] -3-