# ABDEL-MALAK v. PEOPLE OF THE STATE OF CALIFORNIA

> District Court, M.D. North Carolina · December 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10253798

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** December 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253798

## How later opinions describe it (automated extraction)

- discussing remedies other than removal

## Opinion text

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.”

2
(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
3
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
4
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
7
(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
10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253798. Public record. Not legal advice.