Pledger v. State of Kansas ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 25, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
TAMIKA J. PLEDGER,
Plaintiff - Appellant,
v. No. 16-3288
(D.C. No. 2:16-CV-02215-JAR-JPO)
STATE OF KANSAS, the Unified (D. Kan.)
Government of Wyandotte County;
JEROME A. GORMAN, Wyandotte
County District Attorney,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
_________________________________
Tamika J. Pledger appeals the district court’s order that remanded her case to
state court. We dismiss the appeal for lack of jurisdiction.
Background
Ms. Pledger was charged in Kansas state court with several criminal violations
after she drove her car into a group of teenagers. At her preliminary hearing on
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
October 29, 2015, the court found probable cause to believe she was guilty of the
crimes charged. Ms. Pledger, who was present with counsel, waived formal
arraignment and pleaded not guilty.
Thereafter, Ms. Pledger filed several motions in the criminal case, including
motions to dismiss for: (1) lack of subject matter jurisdiction; (2) evidence
tampering; (3) falsifying documents; and (4) judicial misconduct. Following the
denial of the motions, Ms. Pledger filed a writ of mandamus with the Kansas
Supreme Court, which was also denied.
On April 5, 2016, Ms. Pledger filed a civil complaint in federal court, and on
May 12, she filed a “Notice of Removal” of the criminal case to federal court. Aplt.
App. at 35. Defendants moved to remand the case to state court. The district court
granted the motion. This appeal followed.
Analysis
Under 28 U.S.C. § 1443, a defendant may remove a state criminal prosecution
to federal court under certain circumstances. But any “notice of removal of a
criminal prosecution shall be filed not later than 30 days after the arraignment in the
State court, or at any time before trial, whichever is earlier.” 28 U.S.C. § 1455(b)(1).
Not every removal order is subject to appellate review. Instead,
[a]n order remanding a case to the State court from which it was removed is
not reviewable on appeal or otherwise, except that an order remanding a
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case to the State court from which it was removed pursuant to section 14421
or 1443 of [Title 28] shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447(d).
Further, “[d]espite the seemingly unqualified language of the first clause of §
1447(d), its prohibition on appellate review applies only if the district court remands
on grounds permitted by § 1447(c).” Miller v. Lambeth, 443 F.3d 757, 759 (10th Cir.
2006) (internal quotation marks omitted). There are “two categories of remand
within § 1447(c), and therefore within this prohibition on appellate review.” Id. The
two categories that are beyond appellate review “are remands for lack of subject
matter jurisdiction and for defects in removal procedure.” Id.
Thus, under the above statutory regime,
we have jurisdiction to review a remand order only if (1) the remand was
for a reason other than lack of subject matter jurisdiction or a defect in the
removal procedure or (2) the ‘except’ clause of § 1447(d) gives us
jurisdiction because the case was removed under 28 U.S.C. § 1443
(governing certain civil rights cases).
Id.
In this case, the first basis for appellate jurisdiction does not apply because the
district court remanded the case for a defect in the removal procedure (the notice of
removal was untimely). And the second basis for appellate jurisdiction is likewise
inapplicable because the case was not removed under § 1443.
Ms. Pledger does not challenge the district court’s finding that her Notice of
Removal was untimely. In any event, untimely removal is a defect in the removal
1
Section 1442 applies to the removal of civil or criminal actions against the
United States or its officers or agencies.
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procedure and not subject to judicial review under § 1447(c). See Miller, 443 F.3d at
760 (holding untimeliness is a defect in the removal procedure).
And because Ms. Pledger’s Notice of Removal was not based on § 1443, the
district court’s order is likewise not reviewable on appeal. “[W]e . . . resolve the
issue of our jurisdiction by reviewing the record to determine whether [Ms. Pledger]
has alleged a basis for removal under § 1443.” Id. Setting aside the fact that neither
Ms. Pledger’s complaint nor her Notice of Removal mentioned § 1443, even if they
had, this would not be enough. As we explained in Miller, “[i]f a bald citation to §
1443 could support appellate jurisdiction, then the removing party could too readily
delay remand and prolong the interference with state jurisdiction that § 1447(d)
clearly seeks to minimize.” Id. Instead, we examine the pleadings to determine
whether Ms. Pledger alleged a basis for removal under § 1443. See id. at 761.
As grounds for federal jurisdiction, Ms. Pledger alleged the violation of her
civil rights under 28 U.S.C. § 1343 and Rule 60 of the Federal Rules of Civil
Procedure. Rule 60, however, governs motions for relief from judgment—it does not
provide an independent basis for a federal claim or jurisdiction. Moreover, an
alleged cause of action under § 1343 is not the same as a claim under § 1443. To
satisfy the first prong of a claim under § 1443, the claim must “arise[] under a federal
law providing for specific civil rights stated in terms of racial equality.” Miller, 443
F.3d at 761 (internal quotation marks omitted). But Ms. Pledger’s claims do not meet
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this test. Her complaint, which repeats the same claims she made in the underlying
criminal action, contains no allegations of racial inequality.2
As such, we lack jurisdiction to review the district court’s remand order, and
the appeal is dismissed.
Entered for the Court
Monroe G. McKay
Circuit Judge
2
The second prong requires the removing party to assert some aspect of state
law that prevents her from vindicating her rights in state court. See Miller, 443 F.3d
at 762. But because Ms. Pledger fails the first prong, we do not consider whether she
meets the second prong.
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