Case Information
*1 KIRSCH, District Judge
THIS MATTER comes before the Court upon pro se Plaintiff Calvin Taylor Stevens's ("Stevens" or "Plaintiff') Motion to Remove State Court Proceeding Under 28 U.S.C. § 1455(b)(l) (ECF No. 4, "Motion") and the Court's sua sponte screening of the Application to Proceed in forma pauperis (ECF No. 1-2) and the Complaint (ECF No. 1) under 28 U.S.C. § 1915. Having considered Stevens' Motion and performed its screening function under § 1915, the Court resolves the matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below. Plaintiffs Motion is DENIED, Plaintiffs Complaint is DISMISSED pursuant to § 1915(g)'s three-strike provision, and Plaintiffs Application to Proceed in forma pauperis is DENIED as moot.1
I. Background
Incarcerated pro se Plaintiff commenced this matter by filing a 41-page, largely handwritten Complaint, as well as an Application to Proceed in forma pauperis.1 (ECF No. 1.) The 1 Plaintiffs Motion to Add Defendants (ECF No. 6) is also DENIED as moot.
2 This is the twelfth case Plaintiff has brought in the District of New Jersey since 2015. See Stevens v. the State of New Jersey, Case No. 24-7746 (pending); Stevens v. Ellis, Case No. 24-6291, ECF No. 11 *2 Complaint is alleged against numerous Defendants3, (see ECF No. 1 at 8-13) and Plaintiff has a pending Motion to add two additional Defendants (ECF No. 6), including the Attorney General of New Jersey. Plaintiff lists ten to seventeen different causes of actions for each Defendant and proposed Defendant. (See id. at 8-13; ECF No. 6-1 at 1-3.) Causes of actions include "deprivation of procedural and substantive due process of law," "deprivation of due process of law under the fifth and 14th Amendment," "breach of legal duty," "intentional abuse of law," "abuse of the legal process," and other similarly styled causes of actions. (See ECF No. 1 at 8-13.) The handwritten complaint is, charitably, difficult to discern. Stevens appears to take issue with how certain state court criminal prosecutions against him were handled by certain individuals, including police officers and judges. Stevens is particularly concerned with the calculation of "good time and working time" credits that he claims to have been deprived of. (See ECF No. 1 at 40.)
Nearly two months after the commencement of this action. Plaintiff filed the operative Motion under 28 U.S.C. § 1455(b)(l). (ECF No. 4.) In the Motion, Plaintiff notes he "is sovereign by birth" and "sovereignty itself is, of course not subject to law, for it is the author and source of law." (ECF No. 4-2 at 4-5.) Plaintiff signs the Motion "Calvin Stevens, without prejudice UCC 1- (pending); Stevens v. N.J. Motor Vehicle Commission, Case No. 24-6289, ECF No. 3 (dismissing for failure to comply with Federal Rule of Civil Procedure 8); Stevens v. the New Brunswick Police Dept., Case No. 24-6290 (pending); Stevens v. Mercer Cnty. Corr. Ctr., Case No. 22-1306, ECF No. 15 (dismissing for failure to state a claim); Stevens v. Moglia, Case No. 18-11622, ECF No. 3 (dismissing for failure to state a claim); Stevens v. Div. of Child Prot. and Permanency, Case No. 18-9952, ECF No. 9 (dismissing for failure to prosecute); Stevens v. VUale, Case No. 18-1387, ECF No. 15 (dismissing for failure to state a claim); Stevens v. Middlesex Cnty Off. of the Pub. Def., Case No. 16-9090, ECF No. 2 (dismissing with prejudice for failure to state a claim); Stevens v. Jones, Case No. 16-8694, ECF No. 71 (dismissing with prejudice for failure to state a claim); Stevens v. Way, Case No. 15-7261, ECF Nos. 6, 14 (dismissing for failure to state a claim and denied reconsideration).
3 Defendants are listed as Hamilton Municipal Court Clerk's Office (ECF No. 1 at 8); Judge Louis Sanciaito (Id. at 9); Judge Shelia Ellington (Id. at 10); Municipal Prosecutor John Mustakas (Id. at 10; ECF No. 6-1 at 1); the Hamilton Township Police Department (ECF No. 1 at 11); Clerk Melissa Hutchinson (Id. at 12); and Hamilton Township (Id. at 13). Plaintiff also includes numerous members of the Hamilton Police Department as Defendants (Id. at 11.)
301, UCC 1-103, UCC 1-103.6." (Id. at 12.) The substance of the handwritten Motion is also hard to discern. Plaintiff appears to argue that the Hamilton Municipal Court has violated his constitutional and civil rights thus mandating removal to federal court. (See id. at 3.)
II. Discussion
A. REMOVAL UNDER SECTION 1455
Section 1455(b)(l) "prescribes the procedure for a state criminal defendant to remove a
state criminal prosecution to federal court, but does not itself provide grounds for removal."
Commonwealth of Pennsylvania v. Hollo^ay, No. 24-2209,
Here, Plaintiff seeks to remove a number of cases tried and apparently concluded before state court municipal judges. He quarrels with the computation of jail credits, which is an issue to be brought before the state judiciary, not here. In light of the fact that the state court matters have long concluded, it appears there is nothing to remove.
Regardless, the Court will proceed and consider the propriety of the removal on other grounds. As an initial matter, Stevens's efforts to remove his state court criminal cases are procedurally improper. Stevens's Motion to Remove fails to include any of the required materials under §1455(a) including "cop[ies] of all process, pleadings, and orders served upon such defendants or defendants in such action." (See ECF No. 4.). Stevens mentions three Hamilton *4 Municipal Court cases with trials purporting to have occurred in August and November 2023. (See ECF No. 4-2 at 1-2.) Although Stevens does not provide arraignment dates, he alleges trial dates from more than a year ago, demonstrating that he did not timely file his Motion to Remove within "30 days after the arraignment in the State court" or even before trial.
Moreover, even if Stevens's Motion was procedurally proper, the substantive grounds are
still not met. Sections 1442, 1442a, and 1443 provide "limited circumstances in which a criminal
state court prosecution can be removed to federal court." Pennsylvania v. Smith, No. 24-1499,
Therefore, only the "narrow" removal under 28 U.S.C. § 1443(1) remains. See id. "For this
provision to apply, a state court defendant must demonstrate both (1) that he is being deprived of
rights guaranteed by a federal law providing for equal civil rights; and (2) that he is denied or
cannot enforce that right in the courts' of the state." Delaware v. Desmond,
As the matters Stevens attempts to remove have long concluded, the Motion is untimely and must be dismissed. Stevens claims that "this matter needs to be removed . . . [because] [his] civil and constitutional rights [are] [being] substantially deprived" is unavailing. (ECF No. 4-2 at 11.) He alleges that the Hamilton Municipal Court "has a standard policy, practice & custom of *5 denying, abridging and abrogating to [him] and others due process of law and the equal protection of the laws of the United States." (Id. at 2.) These generalized allegations appear to largely relate to his purported denial of "computation credits of good time, worktime per [N.J.S.A] 2A: 162-24" and sentencing of "3 consecutive 6 month[] [terms]." (Id.)
While Plaintiff mentions due process and equal protection concerns generally, he fails to
articulate any deprivations of rights based on race as required to satisfy the first element of §
1443(1). See New Jersey v. DiPietro, No. 23-5258,
The only state law that Stevens cites is N.J.S.A. § 2A: 164-24, which provides that those in charge of the discharge of prisoners for a given county "may, upon the recommendation of the sheriff or jail warden" remit for good conduct from the sentence "a term not exceeding 1 day for every 6 days of such sentence." It also provides that if a criminal defendant was "again convicted and sentenced to imprisonment... he may, in addition to such new sentence, be required at the discretion of the court to serve out the number of days remitted to him on the previous term." § 2A: 164-24. This law essentially provides that certain sentences can be commuted for good *6 behavior, but that if a criminal defendant were to be sentenced to imprisonment again, the commuted sentence could be reimposed. See N.J.S.A. § 30:4-123.51 (indicating § 2A: 164-24 allows for "commutation time for good behavior").
Plaintiff has not articulated how this law—which allows for discretionary commuted
sentences in certain circumstances—precludes the protection of his equal rights guaranteed by the
United States Constitriion. Instead, it appears he is attempting to allege that certain officials of the
Hamilton Municipal Court did not apply this law, depriving him of "computation credits of good
time." (ECF No. 4-2 at 11.) Even "allegation^] of illegal or corrupt acts of individual state officials
that might be corrected by the state judiciary, or the mere possibility of an unfair trial in state court,
will not justify removal to the federal court under § 1443(1)." Pennsylvania v. Bro^n-Bey, 637 F.
App'x 686, 688 (3d Cir. 2016) (citing City of Greenwood v. Peacock,
Therefore, Stevens "has not identified any New Jersey law that would preclude him from
vindicating his federal rights or otherwise shown that the New Jersey courts could not enforce
those rights." Bayview Loan Servicing LLC,
B. THREE-STRIKE PROVISION UNDER § 1915(G)
The Court will also review whether § 1915(g)'s "three-strike" provision bars this action in toto and all other pending in forma pauperis actions brought by Stevens. Section 1915(g) provides that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28U.S.C.§1915(g).
Under the statute, "a prisoner is prohibited from proceeding IFP if, on three or more prior
occasions while incarcerated, he has had a lawsuit 'dismissed' for being 'frivolous, malicious, or
fail[ing] to state a claim.'" Talley v. Pillai,
To qualify as a strike, there must be a dismissal of "the entire action or appeal." Id. (citation
omitted). A complaint that has some claims dismissed for strike-qualifying grounds and other
claims dismissed for other reasons, does not count as a strike. Id. "But when a court dismisses a
claim using two equally sufficient rationales, one of which is strike-qualifying, that claim has been
dismissed on a strike-qualifying ground and its dismissal counts toward a strike." Talley, 116 F.4th
at 210. Dismissal with leave to amend the complaint also does not count as a strike, unless the
plaintiff failed to amend his complaint and the "court had issued a formal order closing the case."
Id. at 208-09. Further, while "the three-strikes provision does not include habeas claims," habeas
claims dismissed as improperly included in a prison civil action do not count as "mixed" and thus
do not foreclose the action from counting as a strike. See Garrett v. Murphy,
4 A plaintiff who has "struck out" can still bring a case by prepaying the filing fee. See Abdzd-Akbar v.
McKelvie,
As noted above, Stevens has filed twelve (12) cases in the District of New Jersey since 2015. See supra n.2. The Court finds the following four (4) cases qualify as strikes under § 1915(g)'s three-strike provision:
1. Stevens v. Way, Case No. 15-7261: On May 24, 2016, Stevens's complaint was dismissed for failure to state a claim but was granted leave to file an Amended Complain within 30 days. Stevens v. Ste^art, No. 15-7261,2016 WL 3002374 , at *1 (D.N.J. May 24,2016). While a complaint that was dismissed for failure to state a claim with leave to amend ordinarily does not count as a strike, the court, many years later, ultimately denied Stevens's Motion For Reconsideration of the May 2016 dismissal. Stevens v. Way, No. 15-7261,2024 WL 4345286 , at *4 (D.N.J. Sept. 30,2024). As part of the order denying the motion, the court ordered that "the clerk shall . . . close this case." Stevens v. Way, No. 15-7261, ECF No. 14 (D.N.J. September 30, 2024). Therefore, because the Court ultimately closed the case following a dismissal for failure to state a claim, this case counts a strike for the purposes of § 1915(g).
2. Stevens v. Jones, Case No. 16-8694: Here, Stevens's complaint was dismissed with prejudice and without leave to amend as "Plaintiff has not stated a claim." Stevens v. Jones, No. 16-8694,2019 WL 3453272 , at *4-5 (D.N.J. July 31,2019). The court later denied Plaintiffs request to reopen open the case and determined that it shall stay closed. Stevens v. Jones, No. 16-8694,2024 WL 4712482 , at *2 (D.N.J. Nov. 7, 2024). This counts as a strike.
3. Stevens v. Middlesex Cnty Off. of the Pub. Def., Case No. 16-9090: Here, Stevens "assert[ed] claims against his public defenders in an ongoing state criminal proceedings." Stevens v. Middlesex Cnty Off. of the Pub. Def, Case No. 16-9090, ECF No. 2 (D.N.J. December 21, 2016). That court dismissed the case because "the Complaint fails to state a claim upon which relief may be granted." Id. at 2. The court was also explicit that the Complaint "count[s] as a 'strike' for the purposes of the 'three strike' rule under 28 U.S.C. § 1915(g)." Id.
4. Stevens v. Moglia, Case No. 18-11622: There, the Court "[ojrdered that Plaintiffs Complaint [was] dismissed for failure to state a claim upon which relief can be granted." Stevens v. Moglia, Case No. 18-11622, ECFNo. 3 (D.N.J. August, 9, 2018). That court declined to grant leave to amend, so this dismissal also counts as a strike.
Because the Court has determined that Stevens has struck out, we turn to whether Stevens
has shown that he is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
"Someone whose danger has passed cannot reasonably be described as someone who 'is' in
danger, nor can that past danger reasonably be described as 'imminent.'" Abdul-Akbar, 239 F.3d
at 313 (citation omitted). "[I]ncarceration alone does not satisfy the requirement of 'imminent
*9
danger of serious physical injury' for purposes of § 1915(g)." Parker v. Montgomery Cnty. Corr.
Facility/Bus. Off. Manager,
Plaintiff fails to allege that he is in "imminent danger of serious physical injury." The Complaint purports to amount to Stevens's displeasure with past actions of state court officials, including judges, police officers, and court employees. He appears to be primarily concerned with computation of his jail credits, which he believes was wrongfully withheld. (See ECF No. 1 at 40.) The allegations in the Complaint have nothing to do with serious physical injury—imminent or not. See e.g., Smart v. Cnty. of Burlington Bd. of Chosen Freeholders, No. 22-1875, 2022 WL 1500951, at *2 (D.N.J. May 11,2022) ("[TJhere are no facts suggesting he is in danger of physical injury, let alone imminent danger of serious physical injury.")
Accordingly, IT IS on this 13th day of January, 2025,
ORDERED that Plaintiffs Motion to Remove (ECF No. 4) is DENIED; and it is further ORDERED that Plaintiffs Complaint, (ECF No. 1), is DISMISSED; and it is further ORDERED that Plaintiffs application to proceed in forma pauperis, ECF No. 1-2, is DENIED as Moot; and it is further
ORDERED that Plaintiffs Motion to Add Defendants (ECF No. 6), is DENIED as Moot; and it is further
ORDERED that the Clerk shall administratively CLOSE this case; and it is further ORDERED that pursuant to the three-strike provision of § 1915(g), Plaintiff is barred from proceeding in forma pauperis without a showing he is under imminent danger of serious physical injury; and it is further
ORDERED that all future filing fees become payable in full upfront, see Bruce v. Samuels,
ORDERED that Plaintiff may have the above-entitled case reopened, if, within forty-five (45) days of the date of the entry of this Order, Plaintiff may proceed with this case only by prepaying the $405 filing fee to the Clerk of Court; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order on Plaintiff by regular U.S. mail.
/ ROBERT KlRSCH — UNITED STATES DISTRICT JUDGE 10