United States District Court, D. Kansas
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS and
REPORT AND RECOMMENDATION
P. O'Hara U.S. Magistrate Judge
2, 2019, Julius King Rambo, III, proceeding pro se, filed
what he titled a “removal complaint, ” alleging
the State of Kansas violated his Sixth Amendment right to
counsel during his state criminal case. Simultaneously,
he filed a motion to proceed with this action in forma
pauperis (ECF No. 3). As discussed below, the
undersigned U.S. Magistrate Judge, James P. O'Hara,
recommends that, although Mr. Rambo is granted leave to
proceed in forma pauperis, his action be dismissed
under the screening requirement of 28 U.S.C. §
Motion to Proceed In Forma Pauperis
1915 of Title 28 of the United States Code allows the court
to authorize the commencement of a civil action
“without prepayment of fees or security therefor, by a
person who submits an affidavit that . . . the person is
unable to pay such fees or give security
therefor.” To succeed on a motion to proceed in
forma pauperis, the movant must show a financial
inability to pay the required filing fees. The decision to
grant or deny in-forma-pauperis status under §
1915 lies within the “wide discretion” of the
trial court.Based on the information contained in Mr.
Rambo's affidavit, Mr. Rambo has shown a financial
inability to pay the required filing fee. The court therefore
grants Mr. Rambo leave to proceed without prepayment of the
filing fee pursuant to § 1915(a)(1).
Screening under 28 U.S.C. § 1915(e)(2)
party is granted leave to proceed in forma pauperis,
§ 1915(e)(2) requires the court to screen the
party's complaint. The court must dismiss the case if the
court determines it is legally frivolous. As noted above, Mr.
Rambo's case is before this court because Mr. Rambo
appears to seek the removal of his state-court action. Mr.
Rambo alleges he “was carried into arraignment without
requested counsel thereby violating and depriving rights
protected under the 6th Amendment and bound over improperly
in the process.” He seeks as relief “a proper
arraignment;” he does not seek money
court recognizes that “[u]nder 28 U.S.C. § 1443, a
defendant may remove a state criminal prosecution to federal
court under certain circumstances.” Section 1443(1)
allows removal of state-court criminal prosecutions
“[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.” The
Supreme Court has established a two-part test for section
1443(1) removal petitions.“First, it must appear that the
right allegedly denied the removal petitioner arises under a
federal law providing for specific civil rights stated in
terms of racial equality.” “Second, it must
appear ‘that the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the
undersigned finds that Mr. Rambo has not alleged a claim
arising “under a federal law providing for specific
civil rights stated in terms of racial equality.” The
Sixth Amendment is not a “racial equality” law.
Nor has Mr. Rambo specified what aspect of Kansas law
prevents him from vindicating his rights in state
extent Mr. Rambo's complaint could be construed to assert
a civil-rights claim against the State of Kansas, Mr.
Rambo's “conclusory allegations without supporting
factual averments are insufficient to state a claim on which
relief can be based.”Moreover, the State of Kansas
is immune from suit under the Eleventh
THEREFORE RECOMMENDED that the presiding U.S. District Judge,
Carlos Murguia, dismiss this action.
is hereby informed that, within 14 days after he is served
with a copy of this report and recommendation, he may,
pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72,
file written objections to the report and recommendation.
Plaintiff must file any objections within the 14-day period
allowed if he wants to have appellate review of the proposed
findings of fact, conclusions of law, or the recommended
disposition. If no objections are timely filed, no appellate
review will be allowed by any court.
Clerk is directed to send a copy of this report and
recommendation to plaintiff.