The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Komaa Mnyofu, pro se plaintiff in this recently-filed
42 U.S.C. § 1983 suit, has filed, in this same action, a petition to
remove to federal court his domestic relations case now pending in the
Circuit Court of Cook County, Illinois. Mnyofu's petition fails for a
litany of reasons, both procedural and jurisdictional.
We begin with the procedural deficiencies and are guided, for the most
part, by the requirements set forth in 28 U.S.C. § 1446. First,
Mnyofu's petition for removal should not have been filed in this case.
Instead, the petition should have been filed as a separate action
altogether, akin to the filing of a new complaint. Second, a proper
petition will contain "a short and plain statement of the grounds for
removal," and have attached copies of all pleadings from the state court
case (see 28 U.S.C. § 1446(a)); Mnyofu's petition satisfies
the former requirement, but
not the latter.*fn1 Finally, it appears highly unlikely that the
petition was filed within thirty days of when the case purportedly became
removable, as required under section 1446(b).
These defects, standing alone, might not have been fatal to Mnyofu's
petition because failing to file a removal petition as a separate action
or neglecting to attach the state court record are both procedural
deficiencies that ordinarily may be corrected to avoid remand
(see 14C Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice & Procedure, §§ 3733-34 (3d ed.
1998)), and as for the timeliness issue, that would be considered only if
raised by an adverse party. See 28 U.S.C. § 1447(c);
In re Continental Casualty Co., 29 F.3d 292, 294-95 (7th Cir.
1994). But we need not pursue these questions any further, because even
if the petition were not procedurally flawed, there is no basis for
The party seeking removal bears the burden of establishing the
jurisdiction of the federal district court. See Wellness
Community-National v. Wellness House, 70 F.3d 46, 49 (7th Cir.
1995). Mnyofu asserts two bases for removal: federal question removal
jurisdiction pursuant to 28 U.S.C. § 1441(a) and civil
rights removal jurisdiction under 28 U.S.C. § 1443(1). Mnyofu
also cites 28 U.S.C. § 1446, but that section deals only with
procedures for removal and does not provide an independent ground for
Section 1441(a) permits a defendant in a civil action brought in state
court to remove the case to a federal district court which would have had
original jurisdiction over the case, by virtue of either diversity of
citizenship or the presence of a federal question. See
28 U.S.C. § 1331, 1332. Mnyofu does not allege, nor do we find,
diversity of citizenship between the parties to the state court case.
Therefore, for Mnyofu to invoke this court's removal jurisdiction. under
section 1441(a), the state case must present a federal question; that is,
it must arise "under the Constitution, laws or treaties of the United
States." 28 U.S.C. § 1331. The case plainly does not. It concerns a
dispute over child custody, a pure domestic relations issue, and is
therefore unarguably beyond the ambit of this court's federal question
jurisdiction. See Ankenbrandt v. Richards, 504 U.S. 689,
703-04, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992) ("[T]he absence of
statutory jurisdiction for federal court adjudication of original civil
actions for divorce, alimony, and child custody. . . . [is] supported
by sound policy considerations. . . . [S]tate courts are more eminently
suited to work of this type than are federal courts, which lack the close
association with state and local government
organizations dedicated to handling [those] issues."); In re
Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 34 L.Ed. 500 (1890)
("[T]he whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States and not to the laws
of the United States."). Thus, because this court would not have had
original jurisdiction over the state court case, section 1441(a) does not
Section 1443(1) permits removal of a state court action "[a]gainst 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. . . ." "Equal civil rights," as used in this
section, is. limited to specific rights of racial equality, and does not
contemplate the whole gamut of constitutional rights. See State of
Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783,
16 L.Ed.2d 925 (1966); State of Wisconsin v. Click, 782 F.2d 670, 672 (7th
Cir. 1986). To remove a case under this section, then, it must, appear
that: (i) the right allegedly denied arises under federal law providing
for specific "civil rights stated in terms of racial equality," and (ii)
the petitioner is denied or cannot enforce the specified federal right in
the state courts. See Johnson v. Mississippi, 421 U.S. 213,
219, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975) (quoting Rachel, 384
U.S. at 792).
Mnyofu's petition fails both prongs of the Johnson test.
As to the first prong, Mnyofu has not identified a single federal
right that he has been "denied or cannot enforce" in state court.
See id. Instead, he makes only" a general claim of racial
discrimination, and offers in support the facially innocuous fact that
the state court judge has ruled against him on child custody issues, and
that he is black and the state court plaintiff is white.
But even if there were something more to Mnyofu's allegations,
and those allegations constituted a deprivation of a right
protected by a specific civil rights statute, Mnyofu's petition could not
get around the second prong. Simply, Mnyofu cannot now claim that he is
"denied or cannot enforce" a right cognizable under section 1443(1) when
there are state court remedies yet available to him. And, absent any
allegations to suggest that an appeal to the state courts would somehow
be ineffective to vindicate Mnyofu's . . . rights, the existence of such
remedies forecloses any possibility of relief in this court. See
City of Greenwood, v. Peacock, 384 U.S. 808, 828, 86 S.Ct. 1800,
16 L.Ed.2d 944 (1966) ("The civil rights removal statute does not require
and does not permit the judges of the federal courts to put their
brethren of the state judiciary on trial. Under § 1443(1), the
vindication of defendant's federal rights is left to the state courts
except in the rare situations where it can be clearly predicted . . .
that those rights will inevitably be denied. . . .");
Young v. Murphy, 90 F.3d 1225, 1230 (7th Cir. 1996)
("[L]itigants who feel a state "proceeding has violated their
constitutional rights must appeal that decision through their state
courts and thence to the Supreme Court.").
Accordingly, because this court does not have subject matter
jurisdiction pursuant to section 1441(a) or section 1443(1) (or, for that
matter, any other section of Title 28 providing a basis for removal
(see 28 U.S.C. § 1441-1444)), removal is improper.
One technical matter remains. As discussed above, not all of the
procedural prerequisites to removal were met in this case. Thus, the
state case was never effectively removed to this court, and without a
removal, there is no need for a remand. See, e.g.,
Glagola v. Glagola, 2003 WL 21878730, at *4 (N.D. Ill. Aug. 8,
2003). Instead, we ...