United States District Court, D. Hawaii
ORDER: (1) REMANDING ACTION; AND (2) DENYING IFP
APPLICATION AS MOOT
Michael Seabright Chief United States District Judge
November 14, 2016, Defendant Mark A. Diaz
(“Defendant”) filed: (1) a Notice of Removal,
based on a traffic citation that he received titled
“State of Hawaii -- Citation for Traffic Crime(s)
Arrest In the District Court of the First Circuit, ”
ECF Nos. 1, 1-1, which is a case that was pending in the
District Court of the First Circuit (Honolulu), State of
Hawaii (“State Court”); and (2) an Application to
Proceed in District Court Without Prepaying Fees or Costs
(“IFP Application”), ECF No. 2. On November 21,
2016, this court ordered Plaintiff to show cause why the
action should not be remanded to State Court for lack of
subject matter jurisdiction (“OSC”). ECF No. 4.
On November 29, 2016, Defendant filed a document titled
“Nature and Cause of Removal: CIVIL RIGHTS COMPLAINT,
” which the court construes as his response to the OSC
(“Response”). ECF No. 5.
asserts the following grounds for removal: (1) he is not a
“driver” as defined by Hawaii law and therefore
the State Court lacks jurisdiction; (2) Defendant cannot get
a fair trial in State Court because of a conflict of interest
where he, the prosecutor, and the judge are state officers;
and (3) this is a civil rights action for “deprivation
of rights, which is ‘Federally Protected Activity'
pursuant to 18 U.S.C. §§ 241, 242, &
245(b)(2)(E)(5).” Response at 2.
these grounds provides a basis for subject matter
jurisdiction. The general removal statute provides that
“[a]ny civil action of which the district
courts have original jurisdiction founded on a claim or right
arising under the Constitution, treaties or laws of the
United States, ” which is brought in a state court, may
be removed to the federal district court. 28 U.S.C. §
1441(a) (emphasis added). And pursuant to 28 U.S.C. § 1331,
district courts have original jurisdiction over civil causes
of action created by federal law and state-law causes of
action that “necessarily raise a stated federal issue,
actually disputed and substantial, which a federal forum may
entertain without disturbing any congressionally approved
balance of federal and state judicial
responsibilities.” Grable & Sons Metal Prods.
v. Darue Eng'g & Mfg., 545 U.S. 308, 312, 314
(2005); see also Gunn v. Minton, 133 S.Ct. 1059,
a claim arises under federal law is generally determined by
the “‘well-pleaded complaint rule, ' which
provides that federal jurisdiction exists only when a federal
question is presented on the face of plaintiff's properly
pleaded complaint.” Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987); see Sparta
Surgical Corp. v. Nat'l Ass'n of Sec. Dealers,
Inc., 159 F.3d 1209, 1211 (9th Cir.1998). Thus, a
defendant cannot create federal subject matter jurisdiction
on the basis of claims or defenses asserted in a notice of
removal. Takeda v. Nw. Nat'l Life Ins. Co., 765
F.2d 815, 822 (9th Cir. 1985) (“The federal question
must be disclosed upon the face of the complaint, unaided by
the answer or by the petition for removal.” (citation
omitted)); Hunter v. United Van Lines, 746 F.2d 635,
639 (9th Cir. 1984) (noting that a defendant cannot remove a
state-law claim from state to federal court even if its
defense is based entirely on federal law); Fed. Nat'l
Mortg. Ass'n v. Bravo, 2013 WL 812705, at *1 (C.D.
Cal. Mar. 5, 2013) (citing McAtee v. Capital One,
F.S.B., 479 F.3d 1143, 1145 (9th Cir. 2007)).
the underlying traffic citation cites Defendant for
violations of state criminal law. Those charges do not
necessarily raise a stated federal issue, actually disputed
and substantial. Nor do the federal statutes upon which
Defendant relies provide a private civil cause of
action. See Aldabe v. Aldabe, 616 F.2d 1089, 1092
(9th Cir. 1980) (stating that 18 U.S.C. §§ 241 and
242 provide no private right of action and cannot form the
basis for a civil suit); see also DeAlcantara v.
Shigemura, 2016 WL 6518618, at *2 (D. Haw. Nov. 2, 2016)
(citing cases). To the contrary, 18 U.S.C. §§ 241,
242, and 245 are federal criminal statutes, which
can “be enforced only by a federal prosecutor, not by
any private party.” Sulla v. Horowitz, 2012 WL
4758163, at *3 (D. Haw. Oct. 4, 2012). And although Defendant
is free to raise a federal defense to the state traffic
citation, that defense does not provide federal question
jurisdiction. See Takeda, 765 F.2d at 822;
Hunter, 746 F.2d at 639.
the court finds that this action must be remanded for lack of
subject matter jurisdiction. The Clerk of Court is ORDERED to
remand /this action to the District Court of the First
Circuit (Honolulu), State of Hawaii. And in light of the
foregoing, Defendant's IFP Application is DENIED as MOOT.
 Defendant was cited for violating
Hawaii Revised Statutes (“HRS”) §§
286-102 (driving without a license) and 286-30 (making,
issuing or using a false certificate of inspection). Both of
these crimes are punishable by a fine and/or imprisonment.
See Id . §§ 286-30, 286-136.
Additionally, very limited criminal prosecutions are
removable. See 28 U.S.C. § 1442 (certain
federal officers or agencies), § 1442a (members of armed
forces acting under color of office); § 1443 (certain
“civil rights” cases). To the extent Defendant
seeks removal pursuant to § 1443, he fails. A petition
for removal under § 1443(1) must assert (1) “as a
defense to the prosecution, rights that are given to [him] by
explicit statutory enactment protecting equal racial civil
rights, ” and (2) “that the state courts will not
enforce that right, and that allegation must be supported by
reference to a state statute or a constitutional provision
that purports to command the state courts to ignore the
federal rights.” Patel v. Del Taco, Inc., 446
F.3d 996, 998-99 (9th Cir. 2006) (quoting California v.
Sandoval, 434 F.2d 635, 636 (9th Cir. 1970)). The court
need not determine ...