State of Arkansas v. Hankins

• Court: District Court, S.D. California
• Decided: February 27, 2023
• Docket: 3:23-cv-00064
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMARIO LASHUN HANKINS a.k.a. Case No.: 23cv0064 JAH-BGS Demar-Lashun Bey, 12 ORDER DISMISSING ACTION Plaintiff, 13 WITHOUT PREJUDICE v. 14 WILLIAM J. BRYANT, Director, et. al., 15 Defendants. 16 17 18 On January 12, 2023, Plaintiff, Demario Hankins1, filed a document on a complaint 19 form in which he lists William J. Bryant, Director, Richard Turner, District Clerk, Jeffie 20 Walker, Warden, and Penny Kilcrease, Circuit Clerk as defendants along with a motion for 21 leave to proceed in forma pauperis and a motion to lodge evidence. See Doc. Nos. 1-3. 22 The heading “COMPLAINT” is crossed-out and “NOTICE OF REMOVAL” is 23 handwritten above. Upon review of the document, it is not entirely clear if Plaintiff sought 24 to remove a pending criminal action to this Court or file a new civil action against the 25 named defendants. See Doc. No. 1. 26

27 1 While Plaintiff lists his name as “demar-lashun:bey”, all documentation involving his criminal action 28 1 In section II of the form entitled “STATEMENT OF CLAIM” Plaintiff refers to 2 attached documents relating to a criminal action in the Circuit Court of Miller County, 3 Arkansas entitled State of Arkansas v. Demario L. Hankins. He alleges video evidence of 4 an altercation with a prison guard which resulted in the criminal action demonstrates the 5 guard falsified his statement. He alleges he served “both administrative agencies” notices 6 and contends they continue to violate his right to due process and fail “to show jurisdiction 7 exists on the record in order to commence their proceedings.” Doc. No. 1 at 2. He further 8 alleges he was held at Miller County Jail in “involuntary servitude and forced slavery”. Id. 9 Additionally, he alleges jail staff put another inmate in “the hole” with him to cause 10 conflict, and denied him religious meals and access to the ER. 11 On the cover page for his filing, Plaintiff asserts the action involves a federal 12 question, he notes he is a non-resident and he refers to criminal cases filed in Arkansas. 13 I. Removal is Improper 14 To the extent Plaintiff sought to remove his pending criminal case to federal court, 15 removal is not proper. Pursuant to 28 U.S.C. section 1443, 16 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 17 place wherein it is pending: 18 (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 19 the United States, or of all persons within the jurisdiction thereof; 20 (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 21 inconsistent with such law. 22 Removal of criminal prosecutions under section 1443 is restrictive and limited to 23 matters where the party seeking removal demonstrates he or she (1) “asserts, as a defense 24 to the prosecution, rights that are given to them by explicit statutory enactment protecting 25 equal racial civil rights” and (2) “the state courts will not enforce that right, and that 26 allegation must be supported by reference to a state statute or a constitutional provision 27 that purports to command the state courts to ignore the federal rights.” People of State of 28 1 Cal. v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970) (citing Georgia v. Rachel, 384 U.S. 2 78, 788-792(1966); Greenwood v. Peacock, 384 U.S. 808, 824-827 (1966)). 3 Plaintiff’s criminal proceedings are pending in Texarkana, Arkansas, not within the 4 Southern District of California. Furthermore, he fails to assert racial civil rights as a 5 defense to the prosecution or that the state court will not enforce the right. Accordingly, 6 removal to the Southern District of California is improper. 7 II. Civil Rights Complaint 8 The allegations contained in Plaintiff’s filing suggest he may be seeking to assert a 9 civil action against the defendants for violations of his civil rights. However, the Court 10 finds the case lacks proper venue.2 28 U.S.C. section 1391(b) provides, in relevant part, 11 that a “civil action may be brought in–(1) a judicial district in which any defendant resides, 12 if all defendants are residents of the State in which the district is located; [or] (2) a judicial 13 district in which a substantial part of the events or omissions giving rise to the claim 14 occurred, or a substantial part of property that is the subject of the action is situated[.]” 28 15 U.S.C. § 1391(b). “The district court of a district in which is filed a case laying venue in 16 the wrong division or district shall dismiss, or if it be in the interests of justice, transfer 17 such case to any district or division in which it could have been brought.” 28 U.S.C. § 18 1406(a). 19 Plaintiffs does not assert any defendant resides within the Southern District of 20 California and, according to his allegations, the events giving rise to his action occurred in 21 Texarkana, Arkansas. Therefore, venue is proper in the Western District of Arkansas 22 pursuant to 28 U.S.C. § 83(b) and not in the Southern District of California pursuant to 28 23 U.S.C. § 84(d). The Court finds a lack of any cognizable legal basis to transfer the case to 24 a district in which it could have been brought. Thus, the interest of just does not warrant 25 transfer to the Western District of Arkansas. 26

27 2 A court may sua sponte raise the issue of venue where the defendant has not yet filed a responsive 28 1 Because the complaint is subject to dismissal for improper venue, Plaintiff's motion 2 ||to proceed in forma pauperis and motion to lodge evidence are denied as moot, 3 || IH. CONCLUSION AND ORDER 4 Based on the foregoing, IT IS HEREBY ORDERED 5 1. The action is DISMISSED without prejudice; 6 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is DENIED; 7 3. Plaintiff's motion to lodge evidence (Doc. No. 3) is DENIED. 8 || DATED: — February 27, 2023

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