In the Matter of Nathaniel A. Denman, Decree No. 3535 of the County Commissioners of Barnstable County and Nathaniel A. Denman v. County of Barnstable

404 F.2d 64

• Court: Court of Appeals for the First Circuit
• Decided: December 3, 1968
• Docket: 7163_1
• Status: Published

Opinion

PER CURIAM.

This is an appeal from a District Court order dismissing a petition for removal and remanding the cause to the state court. The original action was brought by petitioner against county commissioners seeking an increase in a land damage award stemming from a local eminent domain proceeding.

The petition contains a lengthy recital of difficulties encountered by petitioner in a state court in connection with his land litigation. These include alleged bias on the part of a judge and other officials, attempts to commit petitioner for examination, a threat to appoint a guardian ad litem, refusal to make a transcript of court proceedings available, denial of access to a county law library, setting his case for trial ahead of schedule. He seeks removal under 28 U.S.C. § 1443(1) to “enforce his equal rights” and particularly “his right to protect and defend his property”.

The district court dismissed the petition on the ground that the petitioner was not a defendant in the state. court action, as required by Section 1443. This action was clearly required from a reading of the petition.

Even if we were to consider petitioner’s rather ingenious argument that he is a de facto defendant in that his petition for increase in land damages arises out of an eminent domain proceeding in which he was a defendant, we would still affirm. Sunflower County Colored Baptist Ass’n v. Trustees of Indianola, 369 F.2d 795 (5th Cir. 1966); see also Georgia v. Rachel, 384 U.S. 780, 788-793, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 815, 827-828, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Affirmed.