Franklin v. State of Louisiana ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30913
Summary Calendar
HARMON FRANKLIN,
Plaintiff-Appellant,
versus
STATE OF LOUISIANA; on behalf of Louisiana
Department of Public Safety and Corrections,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-2054
--------------------
January 8, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Harmon Franklin (“Franklin”) appeals the dismissal of his
action in the district court. Franklin was charged with various
violations of state trucking regulations. He filed a notice of
removal pursuant to 28 U.S.C. § 1443 and later sought suppression
of certain evidence seized in violation of his constitutional
rights and a dismissal of all charges. He also requested
injunctive relief, enjoining the enforcement of allegedly
constitutionally defective statutes, regulations, and enforcement
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-30913
-2-
procedures. The lower court dismissed the action without prejudice
on the abstention grounds of Younger v. Harris, 401 U.S. 37 (1971),
finding that allowing the federal action to proceed would
impermissibly interfere with the pending state action.
It is axiomatic that federal courts must be assured of their
jurisdiction and may question it sua sponte at any stage of a
proceeding. See In re Bass,171 F.3d 1016, 1021 (5th Cir. 1999).
This court reviews a district court’s determination of the
propriety of removal de novo. Estate of Martineau v. Arco Chemical
Co., 203 F.3d 904, 910 (5th Cir. 2000). The removing defendant has
the burden to show that the federal court has subject matter
jurisdiction. Id.
We conclude that the matter was improperly removed to federal
court. 28 U.S.C. § 1443 allows removal of certain civil actions
and criminal prosecutions if a person is denied or cannot enforce
in state court a right under any law providing for equal civil
rights; however, caselaw instructs that the right denied must arise
under a federal law “providing for specific civil rights stated in
terms of racial equality.” Williams v. Mississippi, 608 F.2d 1021,
1022 (5th Cir. 1979) (quoting Johnson v. Mississippi, 421 U.S. 213,
219 (1975)). “Claims that prosecution and conviction will violate
rights under constitutional or statutory provisions of general
applicability or under statutes not protecting against racial
discrimination, will not suffice.” Johnson, 421 U.S. 219.
Because none of the rights Franklin claims were denied him
“arise under a federal law ‘providing for specific civil rights
stated in terms of racial equality,’” nor has he claimed his rights
No. 00-30913
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were violated because of his race, this action is not covered by
the provisions of 28 U.S.C. § 1443. Therefore, this matter was
improperly removed and should have been summarily remanded. See 28
U.S.C. § 1446(c)(4); 28 U.S.C. § 1447(c).
Franklin also incorrectly asserts that 28 U.S.C. §§ 1331 and
1343 provide the district court with original jurisdiction over his
claims. 28 U.S.C. § 1331 provides that the district court “shall
have original jurisdiction of all civil actions arising under the
Constitution, laws or treaties of the United States.” 28 U.S.C.
§ 1343 provides that the district court shall have original
jurisdiction over various civil actions based on civil rights
violations. However, Franklin has not filed a separate federal
civil rights claim; he has tried removed a state administrative
proceeding.
Franklin also filed a motion to dispense with the record
excerpts required by 5th Cir. R. 30; however, he has since filed
the required excerpts, and this motion is MOOT. The district
court’s judgment is VACATED, and the matter is REMANDED for further
action consistent with this opinion.
VACATED AND REMANDED.
MOTION DENIED AS MOOT.