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State, Affidavit of Tyler v. Bobo

United States District Court, N.D. Mississippi, Greenville Division

August 8, 2018

STATE OF MISSISSIPPI BY AFFIDAVIT OF STEVEN TYLER PLAINTIFF
v.
JAMES R. BOBO, et al. DEFENDANTS

          ORDER

          DEBRA M. BROWN, UNITED STATES DISTRICT JUDGE

         Before the Court is the defendants' motion to remand. Doc. #14.

         I Procedural History

         On May 25, 2017, in the Justice Court of Sunflower County, Mississippi, Steven Tyler executed: (1) a criminal affidavit charging that “James Bobo did purposely, knowingly and unlawfully cause bodily injury to Steven Tyler by grabbing him around the neck and choking him, ” Doc. #3-3; (2) a criminal affidavit charging that “John Rogers did purposely, knowingly and unlawfully cause bodily injury to Steven Tyler, ” Doc. #3-5; and (3) a criminal affidavit charging that “William Carter did purposely, knowingly, and unlawfully cause bodily injury to Steven Tyler, ” Doc. #3-25.

         On June 5, 2017, Bobo, with the consent of Rogers and Carter, removed the state court actions associated with the charging affidavits to this Court. Doc. #1. In their notice of removal, the defendants allege that they are “law enforcement officers employed by the Mississippi Department of Corrections (MDOC) and who investigate federal civil rights violations of MDOC inmates when committed by facility-staff” and that the allegations of the charging affidavits relate to the execution of their duties. Id. at ¶¶ 4-13. The defendants assert jurisdiction under 28 U.S.C. § 1442 and 28 U.S.C. § 1443. Id. at ¶¶ 16-18.

         On March 28, 2018, United States Magistrate Judge Jane M. Virden issued an order directing “defense counsel to thoroughly brief the bases for federal jurisdiction over this action.” Doc. #7. The defendants never filed a brief as directed. Rather, on May 8, 2018, the defendants filed a motion to remand which states, “Upon further review of the facts and circumstances in this cause[, ] the Petitioners are of the opinion that Sunflower County is a more appropriate forum for the disposition of this matter.” Doc. #14. Tyler never filed a response to the motion to remand.

         II Analysis

         In their motion to remand, the defendants appear to argue that this Court has jurisdiction over this action but that a discretionary remand is warranted because the various prosecutions are more appropriately tried in state court. Such a remand seems to be beyond this Court's authority. See Buchner v. F.D.I.C., 981 F.2d 816, 819-20 (5th Cir. 1993) (discussing authority for discretionary remands). Nevertheless, because this Court finds that it lacks jurisdiction over this action, remand is warranted.

         Under well-established federal law, “the party asserting federal jurisdiction … has the burden of demonstrating that jurisdiction is proper.” Lower Co. River Auth. v. Papalote Creek II, L.L.C., 858 F.3d 916, 921 (5th Cir. 2017) (quotation marks omitted). As explained above, the defendants' notice of removal invokes federal jurisdiction under 28 U.S.C. §§ 1442 and 1443.

         Section 1442(a) provides:

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
(2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States.
(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the ...

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