State of Nevada v. Bernard-Ex

District Court, D. Nevada·Decided January 10, 2025·No. 2:24-cv-02114·Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 State of Nevada, Case No. 2:24-cv-02114-JAD-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Mr. Clayton-M. Bernard-Ex, 9 Defendant. 10 11 Under 28 U.S.C. § 1915, removing defendant Clayton-M. Bernard-Ex is proceeding in 12 this action pro se and has requested authority to proceed in forma pauperis. (ECF No. 7). 13 Bernard-Ex also submitted a notice of removal, purporting to remove a criminal case from the 14 Las Vegas Justice Court. (ECF No. 1-1). Because the Court finds that Bernard-Ex’s application 15 is complete, it grants the application to proceed in forma pauperis. However, because Bernard- 16 Ex has not alleged a basis for removing this action, the Court recommends remanding his case to 17 the Las Vegas Justice Court and denying Bernard-Ex’s motion to dismiss and motion for 18 summary judgment (ECF Nos. 4, 5) as moot. 19 I. In forma pauperis application. 20 Bernard-Ex filed the affidavit required by § 1915(a). (ECF No. 7). Bernard-Ex has 21 shown an inability to prepay fees and costs or give security for them. Accordingly, the request to 22 proceed in forma pauperis will be granted under 28 U.S.C. § 1915(a). The Court will now review 23 Bernard-Ex’s notice of removal. 24 II. Legal standard for screening. 25 Upon granting an application to proceed in forma pauperis, courts additionally screen the 26 case under § 1915(e). Federal courts are given the authority to dismiss a case if the action is 27 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks 1 III. Screening the notice of removal. 2 Bernard-Ex, who claims he is a “tax-exempt,” “free sovereign American Citizen and 3 ‘nonresident alien,’” commenced this proceeding as a purported “removal” of a Las Vegas Justice 4 Court case against him. (ECF No. 1-4 at 5). He seeks an award of $38.5 million in damages for 5 his alleged “false arrest” and various other torts and constitutional violations. (Id.). Barnard-Ex 6 relies on 28 U.S.C. § 1443(1) as the basis for his removal. (ECF No. 1-1 at 2). 28 U.S.C. § 1443 7 creates federal removal jurisdiction for actions brought against people who cannot enforce in state 8 court “any law providing for the equal rights of citizens of the United States.” 28 U.S.C. 9 § 1443(1). 10 Federal courts are of limited jurisdiction, having subject matter jurisdiction only over 11 matters authorized by the Constitution and Congress. See, e.g., Kokkonen v. Guardian Life Ins. 12 Co., 511 U.S. 375, 377 (1994). There is a “strong presumption” against removal jurisdiction. 13 Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992). In seeking removal, the defendant bears 14 the burden of proving that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 15 1986). 16 A defendant “who is denied or cannot enforce” his or her civil rights in state court may 17 remove a civil action or criminal prosecution to federal court. 28 U.S.C. § 1443. Section 1433(1) 18 was enacted “to remove from state courts groundless charges not supported by sufficient evidence 19 when these charges are based on race and deny one his federally protected equal rights as 20 guaranteed by Title II of the 1964 Civil Rights Act.” Walker v. Georgia, 417 F.2d 5, 9 (5th Cir. 21 1969). Section 1443 provides, in pertinent part, that a “criminal prosecution[], commenced in a 22 State court may be removed by the defendant to the district court of the United States for the 23 district and division embracing the place wherein it is pending ... [if it is] [a]gainst any person 24 who is denied or cannot enforce in the courts of such State a right under any law providing for the 25 equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” 26 28 U.S.C. § 1443(1). 27 A petition for removal under § 1443(1) must satisfy the two-part test articulated by the 1 v. Peacock, 384 U.S. 808, 824-28 (1966). “First, the petitioners must assert, as a defense to the 2 prosecution, rights that are given to them by explicit statutory enactment protecting equal racial 3 civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir. 1970). “Second, petitioners 4 must assert that the state courts will not enforce that right, and that allegation must be supported 5 by reference to a state statute or a constitutional provision that purports to command the state 6 courts to ignore the federal rights.” Id.; see also Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 7 (9th Cir. 2006); see Morgan Picks Two, LLC v. Borrell, No. CV 20-02298 PA (EX), 2020 WL 8 1234190, at *1 (C.D. Cal. Mar. 11, 2020) 9 Here, Bernard-Ex does not allege any well pleaded facts that would support removal 10 under § 1443, and therefore does not meet either part of the Supreme Court’s test in Georgia v. 11 Rachel. Bernard-Ex’s notice of removal is filled with allegations concerning his displeasure with 12 his arrest and subsequent court proceedings. He asserts that law enforcement officers did not 13 have probable cause to arrest him on September 21, 2017, and used excessive force in doing so 14 because twenty-seven officers responded to the scene. (ECF No. 1-1 at 2-3). He also asserts that 15 he was pressured into taking a plea of nolo contendere on May 20, 2020. (Id.). 16 These allegations are insufficient as a matter of law. While Bernard-Ex vaguely 17 references the Fourteenth Amendment and equal protection, he does not indicate that he has 18 sought to invoke a law that provides “for the equal civil rights of citizens of the United States.” 19 He also fails to assert that he is unable to pursue such a claim or that the state court is unable or 20 unwilling to enforce such a claim. Nothing in his notice of removal satisfies his burden to show 21 that any potential deficiencies in Nevada’s criminal procedures “command[s] the state courts to 22 ignore” his federal rights. See Patel, 446 F.3d at 998-99 (citation omitted). The notice of 23 removal’s allegations are therefore insufficient to establish the Court’s jurisdiction under 28 24 U.S.C. § 1443. Because the Court lacks subject matter jurisdiction, the Court recommends 25 remanding this action to the Las Vegas Justice Court, Case No. 17F17046X. See 28 U.S.C. 26 § 1447. The Court further recommends denying the motions that Bernard-Ex has filed into this 27 case as moot. (ECF No.