United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE.
matter comes before the court pursuant to the Order to Show
Cause issued September 8, 2017 [#4], and the Order of
Reference dated October 5, 2017 [#10]. This case was directly
assigned to the undersigned Magistrate Judge pursuant to
D.C.COLO.LCivR 40.1(c). Though Mr. Lyons filed a Consent Form
to the Jurisdiction of Magistrate Judge on September 21, 2017
[#6], a review of the Consent Form indicated that both
Parties had not consented to the jurisdiction of a magistrate
judge, and no counsel has entered her or his appearance on
behalf of the City and County of Denver. Indeed, it is not
clear from the docket whether Mr. Lyons has served the City
and County of Denver with the Notice of Removal. Without
consent of all Parties, this court lacked statutory authority
to proceed as the presiding judicial officer. 28 U.S.C.
§ 636(c). Accordingly, this court ordered that the case
be drawn to an Article III judge. [#8].
Lyons filed his Notice of Removal on August 30, 2017. [#1].
Defendant seeks to remove two underlying state court actions,
both involving traffic infractions and one arrest: Adams
County No. 2016T4597 and City and County of Denver No.
17M02570. [Id. at 3]. Though not entirely clear,
Defendant also seeks to invoke this court's jurisdiction
because he asserts counterclaims against Adams County (though
not listed on the docket) and the City and County of Denver,
and lists several federal statutes and case law, including 18
U.S.C. § 1951 for interference with commerce by threats
or violence; “28 U.S.C. §§ 1981-1985 Civil
action for deprivation of rights” and “The
Federal Codes thus far listed”; and the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961 et seq.
[Id. at 7-9]. Mr. Lyons asserts that removal is
proper under 28 U.S.C. § 1455.
September 8, 2017, the undersigned Magistrate Judge issued an
Order to Show Cause directing Mr. Lyons to show cause in
writing on or before September 29, 2017, why this court
should not have the case redrawn to a District Judge and
recommend dismissal and/or remand of this action.
See [#4]. Specifically, this court noted that even
construing Mr. Lyons's pro se pleadings
liberally,  it was unclear what federal causes of
action he was pursuing in this matter, or that he could
remove state criminal proceedings and then assert federal
civil counterclaims against the municipality plaintiffs.
[Id.]. Further, it was unclear whether Mr.
Lyons's Notice of Removal was timely under 28 U.S.C.
§ 1455(b)(1). [Id.].
September 21, 2017, Mr. Lyons filed a signed Consent Form to
the exercise of jurisdiction by a Magistrate Judge,
indicating his consent to the undersigned's jurisdiction.
[#6]. Mr. Lyons responded to the Order to Show Cause on
September 28, 2017. [#7]. The court considers his response
start, Mr. Lyons concedes that he failed to remove the two
underlying criminal proceedings within thirty (30) days of
his arraignment, but that he removed the actions before any
trial. See [#7 at 4]. He also requests that the
court find good cause for an untimely removal because he is
“currently under coercive oppression from The County
Agents.” [Id.]. Notwithstanding Mr.
Lyons's timeliness arguments, the court concludes that
removal of his underlying traffic-related actions is
inappropriate. Cf. LaFortune v. Krista, No.
12-CV-00971-LTB, 2012 WL 1278041, at *1 (D. Colo. Apr. 16,
2012) (finding that Ms. Krista failed to allege that she
filed a timely Notice of Removal of her “traffic”
certain circumstances, “a defendant may remove a state
criminal prosecution to federal court[.]” Pledger
v. Kansas, 686 Fed.Appx. 593, 594 (10th Cir. 2017)
(unpublished) (citing 28 U.S.C. § 1443 (governing
removal of civil-rights cases)). In doing so, a “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). Courts may remand a state criminal
prosecution for (1) lack of subject matter jurisdiction or
(2) “any defect other than lack of subject matter
jurisdiction.” Id. § 1447(d); Topeka
Housing Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir.
2005) (noting that remand for these two reasons are insulated
from appellate review). Any defect includes: “(1)
noncompliance with the time limits provided in §
1446(b); (2) noncompliance with the unanimity requirements in
§ 1446(b)(2)(A); and (3) noncompliance with the
forum-defendant rule in § 1441(b), which forbids removal
when a defendant is a citizen of the forum
state.” City of Albuquerque v. Soto
Enterprises, Inc., 864 F.3d 1089, 1095 (10th Cir. 2017).
Mr. Lyons's Notice of Removal invokes only §
1455(b). [#1 at 6]. As grounds for removal, Mr.
Lyons argues that the underlying traffic-related cases
violate RICO because the “County Agents” are
directly and/or indirectly benefitting from the illegal
racketeering activity of forcing Colorado drivers to register
their vehicles and obtain a license prior to operating their
vehicles. See [#7 at 5-7]. Mr. Lyons also invokes 42
U.S.C § 1983, and avers that such requirements are
inconsistent with federal law, and that they violate the
Privileges and Immunities clause of the Fourth Amendment, his
Ninth Amendment rights to “ordinary travel, ” and
his Fourteenth Amendment rights to liberty (i.e.,
“ordinary travel”). [Id. at 7-10]. None
of these proffered reasons are sufficient to satisfy the
as indicated in the Order to Show Cause,
“counterclaims, even if they rely exclusively on
federal substantive law, do not qualify a case for
federal-court cognizance.” Vaden v. Discover
Bank, 556 U.S. 49, 62 (2009). This is especially true in
removal actions. See Nielsen v. Archdiocese of
Denver, 413 F.Supp.2d 1181, 1183 (D. Colo. 2006).
Consequently, it is insufficient for Mr. Lyons to establish
subject matter jurisdiction over this matter by alleging that
he seeks to raise federal law counterclaims against the
various “County Agents.” In South Carolina v.
Tucker, the court reached a similar conclusion as to Ms.
Tucker's assertion that her traffic tickets for failure
to possess a vehicle registration card and for failure to
maintain proof of insurance presented a federal question. No.
CV 3:17-1811-JFA-PJG, 2017 WL 3773137, at *1 (D.S.C. Aug. 11,
2017). The court concluded, “[Ms.] Tucker asserts the
court has jurisdiction over this matter because it involves a
federal question, which is not sufficient to meet the
requirements of removal.” Id.
Mr. Lyons fails to demonstrate that removal is warranted
under §§ 1442, 1442a, or 1443. To start, removal
under §§ 1442 and 1442a is inappropriate, as Mr.
Lyons does not allege any action against federal officers or
agencies (§ 1442) or that he is a member of the armed
forces (§ 1442a). Nor does Mr. Lyons demonstrate that
removal is appropriate under § 1443. Removal under
§ 1443 is appropriate if Mr. Lyons establishes (1) he
was denied a federal right that provides for the civil rights
of racial equality, and (2) he cannot enforce those rights in
state court. See Johnson v. Mississippi, 421 U.S.
213, 219 (1975). Neither showing has been made here. See,
e.g., People of State of Colo. v. Glaser, 74
F.3d 1250 (Table), 1996 WL 21256, at *1 (10th Cir. Jan. 19,
1996) (affirming the district court's remand of Mr.
Glaser's state court traffic-ticket cases for failure to
satisfy § 1443); United States v. McCaleb-Bey,
No. 15-y-00051-GPG, 2015 WL 4698833, at *1-2 (D. Colo. Aug.
7, 2015) (same). Rather, it appears that Mr. Lyons contends
that the traffic-related cases “will violate rights
under constitutional or statutory provisions of general
applicability or under statutes not protecting against racial
discrimination, ” which is insufficient. People of
State of Colo. v. Lopez, 919 F.2d 131, 132 (10th Cir.
1990) (affirming district court's remand because Dr.
Lopez asserted only that this rights to a speedy trial and
general constitutional rights had been violated, which was
insufficient). Accordingly, Mr. Lyons fails to satisfy the
requirements for removal of his underlying traffic- related
cases. See Bartnick v. City of Greenwood
Vill., 61 F.3d 915 (Table), 1995 WL 427677, at *1 (10th
Cir. Jul. 20, 1995) (affirming remand of Ms. Bartnick's
two state court proceedings arising out of traffic