-4.
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 apply.

Section 1443(1) permits removal of a state court action
“(algainst 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. Glick, 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.



-3-

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 ap.independent ground for removal
jurisdiction.

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

_ meter '
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


-5-

As to the first prong, Mnyofu has not identified a single federal
right that he has been “denied or “¢annot 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 weré. 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.



Minute Order Form (06/97)

United States District Court, Northern District of Mlinois

Name of Assigned Judge _Sitting Judge if Othe
° or Magistrate Judge John F. Grady tan Assigned Judge
CASE NUMBER 03 C 8717 DATE January 20, 2004
CASE MNYOFU v. Board of Education of Schoo! District 227
TITLE

(in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.)

for lack of subject matter juri
ENTER MEMORANDUM OPINION.

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box abo e,]

(2) ii) Brief in support of motion due

(3) 0 Answer brief to motion due___. Reply to.answer brief due____

(4) QO Ruling/Hearing ons set for saat

(S) a Status hearing(held/continued to} [set for/re-set forlon___set for ____at

(6) o Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor__—saat_

(7) a Trial[set for/re-set for]on____at

(8) oO [Bench/Jury trial] [Hearing] held/continued to, 23. at.

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) O General Rule21 O FRCP41(a)(1) O FRCP41(a)(2).

a0) =f [Other docket entry] Plaintiff’s petition for removal [7-1] is denied

tion. See attached for details.

Notices MAILED by judge’s staff.
Notified counsel by telephone. {
Docketing to mail notices.

Mail AO 450 form.

cet MED eputy initials

diy x {For further detail see order (on reverse side offattaghed to) the original minute order.]
No notices required, advised in open court, Document
No notices required Number
10 notices required. umber ofnctices
x

Copy to
date mailed notice
courtroom
KAM deputy’s KAM
initials an ts
central Clerk's Office '~* ‘mailing deputy initials

(Reserved for use by the Court)



-6-

-“); Young v. Murphy, 90 F.3d01225, 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

.  §§ 1441~-1444)),. removal is

basis for removal (see
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 ngrtieed for a remand. See, e.g.,
Glagola_v. Glagola, 2003 WL 21878730, at *4 (N.D. Ill. Aug. 8,
2003). Instead, we simply, and hereby, deny Mnyofu’s petition for

removal for lack of subject matter. jurisdiction.
DATE:

ENTER:

John fF. Grady, United States Distri Judge



03-8717.042-TCM January 20, 2004

IN THE UNITED STATES. DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KOMAA MNYOFU, on behalf of himself

and SHAMARI JONES, a minor,
Plaintiff,

No. 03 C 8717

Vv.

BOARD OF EDUCATION OF SCHOOL
DISTRICT 227, et al.,

Defendants.

MEMORANDUM OPINION
Komaa Mnyofu, pro se plaintiff in this recently-filed 42
U.S.C. § 1983 suit, has filed, inthis 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

etition should have been filed

filed in this case. Instead, the |
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


-2-
not the latter.! Finally, it appéars 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 tg.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 Casuaity 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
removal jurisdiction.

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

‘In addition to filing a propér petition for removal with
the clerk of this court, to effect ‘a’ removal, a petitioner must
file a copy of the petition with the:clerk of the state court,
and provide prompt written notice, to all adverse parties. See 28
U.S.C. § 1446(a) & (da). (Although Mr Mnyofu states that he provided
notice to the state court plaintiff, we do not know whether the
petition was filed with the state court clerk.)