BARTULICA, MD v. PACULDO, MD

• Decision Date: 16 April 1976
• Docket Number: No. 76 CV 14-SJ.,76 CV 14-SJ.
• Citation: 411 F. Supp. 392
• Parties: Nicholas BARTULICA, M.D., Plaintiff, v. Nora R. PACULDO, M.D., Defendant.
• Court: U.S. District Court — Western District of Missouri

411 F. Supp. 392

Nicholas BARTULICA, M.D., Plaintiff, v. Nora R. PACULDO, M.D., Defendant.

No. 76 CV 14-SJ.

United States District Court, W. D. Missouri, St. Joseph Division.

April 16, 1976.

Gary A. Fenner, St. Joseph, Mo., for plaintiff.

William H. Pickett, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

This case presents several novel questions under 28 U.S.C. § 1443, which permits removal of state actions to federal courts under certain conditions. In her petition for removal, defendant alleges that an action was commenced against her by plaintiff in the Circuit Court of Buchanan County, Missouri, and that removal is proper under 28 U.S.C. § 1443 because defendant "is denied or would not be able to enforce in the Courts of the State of Missouri, her rights under 42 U.S.C. § 2000e, et seq., and specifically under 42 U.S.C. § 2000e-3." It appears that plaintiff's action is one for defamation based on a memorandum allegedly written by defendant and sent to plaintiff's immediate superior at the St. Joseph, Missouri, State Hospital. Defendant is also an employee of the St. Joseph State Hospital and her theory is that this action was filed in retaliation for her legitimate activity in writing the memorandum to oppose unlawful employment practices inflicted upon her at the Hospital.

Defendant's removal petition alludes to her action in this Court, Paculdo v. Department of Mental Health, 75 CV 10-SJ, challenging these claimed unlawful practices.

Plaintiff has filed a motion to remand under 28 U.S.C. § 1447(c) on the ground that removal under § 1443 is not proper in this case. Defendant has responded out of time and leave to file her response out of time will be granted.

For the reasons which we shall state, we find and conclude that § 1443 does not provide a basis for removing this action to federal court, and therefore the action should be remanded to state court. 28 U.S.C. § 1447.

I.

Section 1443 provides as follows:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against 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;

(2) For 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

The scope of removal jurisdiction under subsection (1) of this statute was exhaustively considered by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966), and City of Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).¹ In Rachel the Court found removal jurisdiction proper where the federal rights claimed to be unenforceable in state court arose under §§ 201(a) and 203(c) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a(a) and 2000a-2(c). Defendants alleged that they would be brought to trial in state court on charges of criminal trespass solely on the basis of "peaceful attempts to obtain service at places of public accommodation." 384 U.S. at 793, 86 S.Ct. at 1790, 16 L.Ed.2d at 934. Defendants further claimed that they were asked to leave the place of public accommodation solely for racial reasons. After carefully reviewing the history and construction of § 1443(1), and the Civil Rights Act of 1964, the Court concluded that the right relied upon was one arising under a law providing for equal rights, and that under the circumstances of that case, the very maintenance of the state prosecution made it clear that defendants were denied or could not enforce the rights granted them under the Civil Rights Act of 1964. As construed, that Act specifically provided that the conduct alleged in the removal petition could not be the subject of trespass prosecutions. See Hamm v. City of Rock Hill, 379 U.S. 306, 311, 85 S.Ct. 384, 389, 13 L.Ed.2d 300, 304 (1964).

In contrast, on the very same day, the Court found removal improper in Peacock, supra. There the defendants were charged in state court with various crimes including obstructing public streets, assault and battery, and others. They alleged in their removal petition that the charges were baseless and that they were denied or could not enforce in the state court various federal rights, including those protected by 42 U.S.C. §§ 1971 and 1981. After finding no basis for removal under § 1443(2), the Court turned to the removal petitioners' argument under the first subsection. The Court assumed that 42 U.S.C. §§ 1971 and 1981 were laws providing for equal rights within the meaning of § 1443(1), but nevertheless held that removal was not proper because petitioners had failed to make a sufficient showing that they were denied or could not enforce particular federal rights in state courts. Unlike Rachel, the petitioners in Peacock were not engaging in conduct explicitly protected by some federal statute. Nor were they made immune from prosecution itself by the operation of federal law as petitioners in Rachel were. The Court enunciated the strict requirement for removal under § 1443(1):

It is not enough to support removal under § 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. . . . Under § 1443(1), the vindication of the defendant's 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. 384 U.S. at 827-28, 86 S.Ct. at 1812, 16 L.Ed.2d at 956 (emphasis added)

As expected, defendant, the removal petitioner here, relies upon Rachel, while plaintiff seeks sustenance in Peacock. Although both of these cases involve criminal prosecution, there is no reason to suggest that the Supreme Court would follow a different standard in removal of civil cases. Neither party, however, has called our attention to the latest Supreme Court construction of § 1443(1) in Johnson v. Mississippi, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975). There, the Court reaffirmed the principles set forth in Rachel and Peacock. While protesting alleged racial discrimination of certain merchants, the removal petitioners were arrested and charged with conspiracy to unlawfully boycott. They sought to remove the actions to federal court under § 1443(1) claiming that they were denied or could not enforce in state courts various rights including those granted them under 18 U.S.C. § 245, a criminal statute intended to prohibit violent interference with the exercise of certain specified civil rights. The Court found that 18 U.S.C. § 245 did not "furnish an adequate basis for removal under § 1443(1)" and that no federal right of petitioners was denied by state criminal prosecution for conspiracy or boycott. Id. at 222-27, 95 S.Ct. at 1597, 44 L.Ed.2d at 130.

In discussing the Court's earlier decision in Rachel and Peacock, Mr. Justice White stated a two-pronged test for removal under § 1443(1):

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." Georgia v. Rachel, 384 U.S. at 792, 86 S.Ct. at 1790, 16 L.Ed.2d at 933. Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice. That a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of § 1443(1). City of Greenwood v. Peacock, 384 U.S. at 825, 86 S.Ct. at 1811, 16 L.Ed.2d at 955.

Second, it must appear, in accordance with the provisions of § 1443(1), that the removal petitioner is "denied or cannot enforce" the specified federal rights "in the courts of the State." This provision normally requires that the "denial be manifest in a formal expression of state law," Georgia v. Rachel, supra at 803, 86 S.Ct. at 1796, 16 L.Ed.2d at 939, such as a state legislative or constitutional provision, "rather than a denial first made manifest at the trial of the case." Id., at 799, 86 S.Ct. at 1793, 16 L.Ed.2d at 937. Except in the unusual case where "an equivalent basis could be shown for an equally firm prediction that the defendant would be `denied or cannot enforce' the specified federal rights in the state court," id., at 804, 86 S.Ct. at 1796, 16 L.Ed.2d at 940, it was to be expected that the protection of federal constitutional or statutory rights could be effected in the pending state proceedings, civil or criminal.

421 U.S. at 219-20, 95 S.Ct. at 1595, 44 L.Ed.2d at 128.²

In this case, defendant attempts to satisfy the requirements of § 1443(1) removal by alleging that the right allegedly denied her is one arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Specifically, she asserts her right to be free from retaliation for protesting unlawful practices contained in 42 U.S.C. § 2000e-3. That section provides in relevant part as follows:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an

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