United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
Julius King Rambo, III, filed a “removal
complaint” pro se, claiming that the State of Kansas
violated his Sixth Amendment right to counsel during his
state criminal case. Magistrate Judge James P. O'Hara
granted Rambo leave to proceed in forma pauperis and screened
the case pursuant to 28 U.S.C. § 1915(e)(2). Judge
O'Hara filed a Report and Recommendation (Doc. 4),
recommending that this court dismiss the case as frivolous.
Rambo filed an objection within fourteen days.
to 28 U.S.C. § 1915(e)(2)(B), the court may dismiss sua
sponte an in forma pauperis action as failing to state a
claim upon which relief may be granted. Whitney v. New
Mexico, 113 F.3d 1170, 1172-73 (10th Cir. 1997); see
also 28 U.S.C. § 1915(e)(2)(B)(ii). Such dismissal
is warranted where it is “patently obvious” that
the plaintiff (or, in this case, the remover-defendant)
cannot prevail on the facts alleged and that amendment would
be futile. Whitney, 113 F.3d at 1173 (citations and
quotations omitted). The court must determine “whether
the complaint contains ‘enough facts to state a claim
to relief that is plausible on its face.'”
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007) (quoting Bell Atl.Corp. v.
Twombly, 550 U.S. 554, 570 (2007)). The court will
dismiss the complaint if the complaint does not “give
the court reason to believe that this [party] has a
reasonable likelihood of mustering factual support for
these claims.” Id. The party must
“nudge [his] claims across the line from conceivable
to plausible” to avoid dismissal. Twombly, 550
U.S. at 570.
court is mindful of the fact that Rambo is proceeding pro se.
Because of Rambo's pro se status, the court affords him
some leniency in construing his complaint. Asselin v.
Shawnee Mission Med. Ctr., Inc., 894 F.Supp. 1479, 1484
(D. Kan. 1995) (citation omitted). The court may not,
however, assume the role of advocate for Rambo simply because
he is proceeding pro se. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The court should not
“construct arguments or theories for the [removing
party] in the absence of any discussion of those
issues.” Drake v. City of Fort Collins, 927
F.2d 1156, 1159 (10th Cir. 1991) (citations omitted). Nor
should the court “supply additional factual allegations
to round out a . . . complaint or construct a legal theory on
a [party's] behalf.” Whitney, 113 F.3d at
1173-74 (citation omitted).
defendant has attempted to remove a state court criminal
action pursuant to 28 U.S.C. § 1443. This statute allows
a state court criminal defendant to remove a state criminal
prosecution to federal court under particular circumstances.
But these circumstances are limited; the removal must meet
two requirements: (1) “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”; and (2) “it must
appear ‘that the removal petitioner is denied or cannot
enforce the specified federal rights in the courts of the
State.'” Taos Cty. Magistrate Court v.
Currier, 625 Fed.Appx. 358, 360 (10th Cir. 2015).
claims do not meet either of these requirements. He claims
that 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.” (Doc. 1, at 3.) In defendant's objections
to Judge O'Hara's order, he states that he meant to
file this action under 18 U.S.C. § 242 - Deprivation of
Rights. Presumably, this is defendant's attempt to show
that the rights he is asserting are civil rights relating to
racial equality. Defendant's belated attempt to meet the
standards for § 1443(1) removal fails. The rest of his
objection makes clear that he is upset with the state court
for denying him appointment of counsel. There is no
indication that the denial of counsel has anything to do with
a racial equality law or what Kansas law prevents defendant
from vindicating his rights in state court.
O'Hara correctly analyzed defendant's complaint.
There is no basis for removal of defendant's state court
criminal prosecution. Ordinarily in a removal action, the
court remands the case to state court instead of dismissing
it when the case has been improperly removed. But here,
defendant never actually specifies in which court his
criminal case is being prosecuted. This court therefore
cannot remand the case. Instead, the court will dismiss the
case as legally frivolous, as 28 U.S.C. § 1915 permits
it to do.
IS THEREFORE ORDERED that Judge O'Hara's
Report and Recommendation dated May 3, 2019 (Doc. 4) is
adopted in full. This case is dismissed under ...