ABDEL-MALAK v. PEOPLE OF THE STATE OF CALIFORNIA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ABANOOB ABDEL-MALAK, )

)

Petitioner, )

)

v. ) 1:20CV1143

)

PEOPLE OF THE STATE OF )

CALIFORNIA, et al., )

)

Respondents. )

MEMORANDUM OPINION, RECOMMENDATION, AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the undersigned United States

Magistrate Judge for review of an application to proceed in forma

pauperis (Docket Entry 2) (the “IFP Motion”) and a motion entitled

“Application for Three Judge Court and Review by Chief Judge”

(Docket Entry 6) (the “Application”). (Docket Entry dated Dec. 18,

2020.) For the reasons that follow, the Court (1) will grant the

IFP Motion for the sole purpose of entering this Order and

Recommendation and (2) should issue a summary remand and deny as

moot the Application.

BACKGROUND

Abanoob Abdel-Malak (“Abdel-Malak”) initiated this action by

filing a document (Docket Entry 1), labeled as a “Petition for

Removal” (the “Petition”), which purports to seek removal to this

Court of state criminal case number M268212DV, pending against

Abdel-Malak in the Superior Court of California, in San Diego

County, California (see id. at 1). According to the Petition, on

July 1, 2019, California law enforcement authorities arrested

Abdel-Malak while he attempted to file a document at the “Superior

Court of California [f]or the County of Riverside[,] Family Law

Division.” (Id. at 21.) The Petition relates that unidentified

“deputies” refused to allow Abdel-Malak to call a lawyer and then

transported him to “the Riverside Detention Jail Facility” where

unidentified “officers beat [him] up” and denied him food and

water. (Id. at 22.) Additionally, the Petition asserts that

officers “attempted to make [Abdel-Malak] take a medical test,”

questioned him about whether he used methamphetamine, and

“attempted to place methamphetamine on [his] clothes.” (Id. at

22–23.)

The Petition further explains that, during this period of

detention, Abdel-Malak learned of the charges against him

(trespassing and contempt of court). (Id. at 23.) Next, the

Petition mentions both Abdel-Malak’s $50,000 bond and his eventual

release to the hospital for chest pain. (Id.) According to the

Petition, Abdel-Malak remained released the following day, as he

drove to an FBI office to try to report his allegedly unlawful

arrest. (Id.) The Petition then states that Abdel-Malak left

California by plane a few days later, as a result of “the ongoing

harassment and [his] fear of [the] Riverside County Sheriff.”

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(Id.) Abdel-Malak presently resides in North Carolina. (See

Docket Entry 1-4 (mailing envelope displaying return address).)

In addition, the Petition complains of “ongoing hate crimes

and civil rights violations” (Docket Entry 1 at 24) and other

wrongdoing by government officials (see id. at 2, 5–6, 13–14,

24–27, 41–43, 45–47). In relevant part, the Petition asserts that

“[Abdel-Malak] was targeted and denied his civil rights solely

because of his race and ethnic background of being an Egyptian

male” (id. at 17) and that “Riverside County Sheriff Bailiff

Deputies” referred to him using derogatory racial language (id. at

34). Finally, the Petition generally references other

discriminatory treatment. (See id. at 35 (“[T]heir arrests were

effected for the sole purpose of obstructing justice, aiding,

abetting, and perpetuating customs, and usages having deep

historical; and psychological roots in the mores and attitudes

which exist within Riverside, California with respect to serving

and seating members of the African-American race in such places of

public accommodation and convenience upon a racially discriminatory

basis and upon terms and conditions not imposed upon members of the

so-called white or Caucasian race.”).

To establish this Court’s jurisdiction in this matter, the

Petition first cites 15 U.S.C. § 1692k(d), 28 U.S.C. § 1446(b), 28

U.S.C. § 1331, and 28 U.S.C. § 1367. (Docket Entry 1 at 9.) The

Petition elsewhere requests that this Court “exercise exclusive

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jurisdiction” and maintains that

Article III court[s have] the express authority to hear

and adjudicate any questions arising under the

Constitution, Laws, and Treaties of the United States,

including but not limited to the Bill of Rights, the

Ninth Amendment, the Eleventh Amendment, the original

Thirteenth Amendment, the Fourteenth Amendment, the

International Covenant on Civil and Political Rights, and

the Universal Declaration of Human Rights[.]

(Id. at 8–9.) The Petition also suggests that grounds for removal

exist under 28 U.S.C. § 1443(1), which applies “when a state court

litigant ‘is denied or cannot enforce in the courts of such State

a right under any law providing for the equal rights of citizens of

the United States, or of all persons within the jurisdiction

thereof.’” (Docket Entry 1 at 9–10 (emphasis omitted).) Further,

the Petition insists that this matter differs from the

“nonremovable actions” specified at 28 U.S.C. § 1445. (Docket

Entry 1 at 12.) Finally, the Petition invokes this Court’s

jurisdiction via 28 U.S.C. §§ 1332, 1343(a)(3), 1441, and 1446, as

well as 18 U.S.C. § 1514. (Docket Entry 1 at 26–27.)

DISCUSSION

I. Relevant Legal Standards

When a defendant in a state criminal case files a notice of

removal in a United States District Court, that court “shall

examine the notice promptly. If it clearly appears on the face of

the notice and any exhibits annexed thereto that removal should not

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be permitted, the court shall make an order for summary remand.”

28 U.S.C. § 1455 (b) (4).

“‘[Fjlederal courts are courts of limited jurisdiction,’

constrained to exercise only the authority conferred by Article III

of the Constitution and affirmatively granted by federal statute.”

In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998)

(quoting Owen Equip. and Erection Co. v. Kroger, 437 U.S. 365, 374

(1978)). Moreover, federal law severely limits the circumstances

under which a litigant may remove a case from state court to

federal court. See 28 U.S.C. §§ 1441-1455; see also Mulcahey v.

Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994)

(“Because removal jurisdiction raises significant federalism

concerns, we must strictly construe removal jurisdiction.”). “The

burden of establishing federal jurisdiction is placed upon the

party seeking removal.” Mulcahey, 29 F.3d at 151.

Three federal statutes provide for removal of state criminal

prosecutions: 28 U.S.C. §§ 1442, 1442a, and 1443. See 28 U.S.C.

$$ 1441-1455; accord, e.g., Iowa v. Johnson, 976 F. Supp. 812, 816

(N.D. Iowa 1997) (“If this state criminal prosecution is removable

to federal district court, it must be on the basis of one of three

federal statutes, 28 U.S.C. § 1442, 28 U.S.C. § 1442a, or 28 U.S.C.

§ 1443.%). Section 1442 applies to state criminal prosecutions of

federal officers and agents. See North Carolina v. Carr, 386 F.2d

129, 131 (4th Cir. 1967) (observing that “purpose of [28 U.S.C.

§ 1442] is to take from the State courts the indefeasible power to

hold an officer or agent of the United States criminally or civilly

liable for an act allegedly performed in the execution of any of

the powers or responsibilities of the Federal sovereign” (emphasis

added)). Similarly, Section 1442a empowers members of the armed

forces to seek removal under certain circumstances. See Florida v.

Simanonok, 850 F.2d 1429, 1430 n.1 (11th Cir. 1988) (“Clearly, the

party seeking removal [under 28 U.S.C. § 1442a] must also be a

member of the armed forces.” (emphasis added)). Section 1443

authorizes removal of state criminal prosecutions in two

situations: when a state has initiated such proceedings

(1) [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; [or]

(2) [f]or any act under color of authority derived from

any law 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.

“Section 1443(2) consists of two distinct clauses.” Virginia

v. Ayem El, No. 3:15cv718, 2016 WL 3746376, at *4 (E.D. Va. July

12, 2016). Under the first “color of authority” clause, removal

remains “available only to federal officers and to persons

assisting such officers.” City of Greenwood v. Peacock, 384 U.S.

808, 815 (1966). Only state officers may remove under the second

“refusal” clause. Id. at 824 n.22.

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In contrast, a wider class of defendants may remove under

Section 1443(1). However, “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.” Georgia v. Rachel, 384 U.S. 780, 792 (1966). Moreover,

“the denial [must] be manifest in a formal expression of state

law.” Id. at 803. In other words, “the vindication

of . . . 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.” Peacock, 384 U.S. at

828; see also South Carolina v. Grace, 234 F. App’x 103, 104 (4th

Cir. 2007) (“Removal is limited to rare situations in which a

defendant has been denied or cannot enforce the right to racial

equality in the state courts.”). As a result:

[I]t is not enough to support removal under [Section]

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. Nor may a removal petition rely solely

on “broad contentions under generally applicable constitutional

rights.” Crawford v. State of Md., No. 92-2190, 4 F.3d 984

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(table), 1993 WL 375649, at *1 (4th Cir. Sept. 24, 1993)

(unpublished).

II. Analysis

Abdel-Malak has not carried his burden to establish federal

jurisdiction in this matter. Despite the Petition’s scattershot

references to several federal statutes, only one, Section 1443,

pertains to the jurisdictional inquiry under the circumstances

here.! For the following reasons, Abdel-Malak has failed to

satisfy the conditions of Section 1443.

Turning first to Section 1443(2), the Petition bears no

indication that Abdel-Malak’s state charges relate in any way to

his service as or his assistance of a federal officer, as required

by the first clause, see Peacock, 384 U.S. at 815. (See Docket

Entry 1 at 1-59.) Nor does the Petition allege that Abdel-Malak

acted as a state officer, as required by the second clause, see

Peacock, 384 at 824 n.22. (See Docket Entry 1 at 1-59.)

Accordingly, Section 1443(2) provides no basis for removal.

As concerns Section 1443(1), although the Petition suggests

that Abdel-Malak has experienced unconstitutional treatment on

' The Petition mentions neither 28 U.S.C. Section 1442 nor 28

U.S.C. Section 1442a. (See Docket Entry 1 at 1-59.) Those

statutes do not apply under the circumstances, as the Petition

nowhere alleges that Abdel-Malak acted as a federal officer or that

he served as a member of the armed forces. See Carr, 386 F.2d at

131; Simanonok, 850 F.2d at 1430 n.1

account of his race, alleged violations of “generally applicable

constitutional rights” fall short, Crawford, 1993 WL 375649, at *1.

Even “prosecut[ion] on baseless charges solely because of [one’s]

race” fails to establish entitlement to removal. See Peacock, 384

U.S. at 828-29 (discussing remedies other than removal). In any

event, the Petition fails to show that the alleged racial

discrimination against Abdel-Malak gave rise to the charges against

him. (See Docket Entry 1 at 23 (describing charges as “Contempt of

Court” and “Trespass” but providing no other information about

basis (or lack thereof) for such charges)

Additionally, the Petition reveals other shortcomings. For

example, it alleges no denial of Abdel-Malak’s rights “in a formal

expression of state law,” Rachel, 384 U.S. at 803. Furthermore,

the Petition fails to show that Abdel-Malak lacks the ability to

enforce his right to racial equality in state court. See Grace,

234 F. App’x at 104. In light of the foregoing, “it clearly

appears on the face of the notice and [the] exhibits thereto that

removal should not be permitted,” 28 U.S.C. § 1455(b) (4), and

therefore, the Court “shall make an order for summary remand,” id.

Indeed, the insufficiency of the Petition rises to such a

level that it qualifies as frivolous. See generally Neitzke v.

Williams, 490 U.S. 319, 325 (1989) (defining “frivolous” as

“lack[ing] an arguable basis either in law or in fact”). In

particular, Section 1443 plainly contemplates removal “to the

district court of the United States for the district and division

embracing the place wherein [the state criminal prosecution] is

pending.” 28 U.S.C. § 1443. The Petition references no such

prosecution pending within the geographical limits of the Middle

District of North Carolina. (See Docket Entry 1 at 1–59.) Under

the circumstances, the Court should advise Abdel-Malak that future

frivolous filings may result in sanctions.

CONCLUSION

“[I]t clearly appears on the face of the [Petition] and any

exhibits annexed thereto that removal should not be permitted [and

thus] the [C]ourt shall make an order for summary remand.” 28

U.S.C. § 1455(b)(4).

IT IS THEREFORE ORDERED that the IFP Motion (Docket Entry 2)

is granted for the sole purpose of entering this Order and

Recommendation.

IT IS RECOMMENDED that, pursuant to 28 U.S.C. § 1455(b)(4),

this case be remanded to the Superior Court of California, San

Diego County, California, the Application (Docket Entry 6) be

denied as moot, and Abdel-Malak be warned that further frivolous

filings shall result in sanctions, including a pre-filing

injunction.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 28, 2020

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