UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

STATE OF KANSAS, 

 Plaintiff - Appellee, 

v. 

CRAIG IVAN GILBERT, 

 Defendant - Appellant. 

------------------------------------------ 

CRAIG IVAN GILBERT, 

 Plaintiff - Appellant, 

v. 

STATE OF KANSAS; COUNTY OF 

FORD; CITY OF DODGE CITY, 

KANSAS; ROGER SOLDAN; 

JOHN/JANE DOES, 

 Defendants - Appellees. 

Nos. 22-3213 & 22-3230 

(D.C. Nos. 5:22-CV-03214-JWL-JPO & 

5:22-CV-03216-JWL-JPO) 

(D. Kan.) 

Nos. 22-3229 & 22-3249 

(D.C. No. 5:22-CV-03217-JWL-JPO & 

5:22-CV-03265-JWL-JPO) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BRISCOE, and EID, Circuit Judges. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are 

therefore ordered submitted without oral argument. This order and judgment is not 

binding precedent, except under the doctrines of law of the case, res judicata, and 

collateral estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 8, 2023

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 1
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_________________________________ 

Appellant Craig Ivan Gilbert, a Kansas state prisoner appearing pro se, appeals 

the dismissal of four cases that he attempted to remove from Kansas state courts to 

federal district court. Two of the appeals, No. 22-3213 and No. 22-3230, involve 

Gilbert’s attempts to remove closed criminal cases. The other two appeals, 

No. 22-3229 and No. 22-3249, involve Gilbert’s attempts to remove closed state 

habeas cases that he filed. Exercising jurisdiction over these appeals pursuant to 

28 U.S.C. § 1291, we affirm the decisions of the district court. 

I 

Appeal Nos. 22-3213 and 22-3230 

Appeal No. 22-3213 arose out of a case that Gilbert initiated on September 27, 

2022. Gilbert did so by filing in the United States District Court for the District of 

Kansas a pro se pleading that he labeled a “Notice of Removal.” ROA at 3. The 

pleading purported to be removing a closed, but unspecified, 1999 criminal case from 

Ellsworth County, Kansas. The pleading also purported to pose what Gilbert 

described as a “federal question,” i.e., “whether a closed 1999 case can be removed 

to [United States District Court] when obstructive barriers prevented” the United 

States District Court for the District of Kansas, in a 2003 federal habeas action, from 

“review[ing] [his 1999 Kansas state] conviction and term of involuntary servitude.” 

Id. (capitalization omitted). 

Appeal No. 22-3230 likewise arose out of a case that Gilbert initiated on 

September 27, 2022, by filing a pleading titled “Notice of Removal.” ROA at 3. 

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That pleading purported to be removing a closed, but unspecified, 1995 criminal case 

from Ford County, Kansas. Gilbert posed a similar “federal question” in his 

pleading, i.e., “[w]hether a closed 1995 case, 1998 conviction date imposed 2003 can 

be removed to” federal court. Id. (capitalization omitted). 

The district court dismissed both cases on September 29, 2022. The district 

court noted that 28 U.S.C. § 1443 authorizes a state criminal defendant, in very 

limited circumstances, to remove his or her case to federal district court. The district 

court concluded, however, that both of Gilbert’s cases failed to satisfy the substantive 

and procedural requirements for removal pursuant to § 1443. Although the district 

court noted that an order for summary remand is typically the proper course of action 

when a state criminal case has been improperly removed to federal court, see

28 U.S.C. § 1455(b)(4), it concluded that dismissal was the proper course of action in 

both of these cases because there was no court to which they could be remanded. 

The district court entered final judgment in both cases on September 29, 2022. 

Gilbert moved for reconsideration in both cases, but the district court denied 

those motions as meritless. Gilbert filed a timely notice of appeal in each case, and 

has since filed an opening appellate brief in each case. 

After reviewing Gilbert’s appellate briefs and the record on appeal in both 

cases, we conclude that the district court did not err in dismissing these cases. See 

Bd. of Cty. Comm’rs of Boulder Cty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 

1250 (10th Cir. 2022) (applying de novo standard of review to district court’s ruling 

on the propriety of removal). As the district court correctly noted, 28 U.S.C. § 1455 

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outlines the “Procedure for removal of criminal prosecutions” from state court and 

provides, in pertinent part, that “[a] notice of removal of a criminal prosecution shall 

be filed not later than 30 days after the arraignment in the State Court, or at any time 

before trial, whichever is earlier.” 28 U.S.C. § 1455(b)(1). The statute further 

provides, in relevant part, that “[a] notice of removal of a criminal prosecution shall 

include all grounds for such removal,” and that “[a] failure to state grounds that exist 

at the time of the filing of the notice shall constitute a waiver of such grounds.” Id. 

§ 1455(b)(2). To be sure, the statute affords a federal district court with authority, in 

the event of “good cause shown,” to effectively modify these requirements. Id. 

§ 1455(b)(1), (2). Here, however, Gilbert’s notices of removal were both untimely 

under § 1455(b)(1), failed to offer any grounds for removal as required by 

§ 1455(b)(2), and also offered no basis upon which the district court could conclude 

that good cause had been shown to modify the statutory requirements. Further, 

because the criminal cases that Gilbert attempted to remove from state court were 

closed, the district court correctly concluded that it had no choice but to dismiss the 

cases. 

Appeal Nos. 22-3229 and 22-3249 

Like the first two appeals, Appeal No. 22-3229 arose out of a case that Gilbert 

initiated on September 27, 2022, by filing in the United States District Court for the 

District of Kansas a pro se pleading that he labeled a “Notice of Removal.” ROA 

at 3. The pleading purported to be removing a closed, but unspecified, state habeas 

case that Gilbert filed in 2003 in Ford County, Kansas, and that he subsequently 

Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 4
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appealed to the Kansas Court of Appeals. The notice of removal posed what Gilbert 

described as a “federal question,” i.e., “whether a closed 2004 Judicial Opinion & 

Conviction case can be removed to [United States District Court] when obstructive 

barriers Denied Right to Review Court Appointed Appellate Counsel After Docketing 

Brief.” Id. (quotation marks omitted). 

Appeal No. 22-3249 arose out of a case that Gilbert initiated on October 19, 

2022, by filing a pleading titled “Notice of Removal.” ROA at 3. The pleading 

stated that Gilbert was removing a “Closed Writ of Habeas Corpus Case” that he filed 

in 2021 in the Saline County (Kansas) District Court. Id. The pleading further stated 

that the state habeas case concerned “conditions of confinement.” Id. 

The district court dismissed both cases for two reasons. First, the district court 

noted that 28 U.S.C. § 1441 authorizes a defendant in a civil action brought in state 

court to remove the case to federal district court, but does not provide for removal by 

a plaintiff. Second, the district court noted that Gilbert failed to provide any 

authority for removing a closed case. 

Gilbert timely appealed both dismissal orders1

 and has since filed opening 

appellate briefs in both appeals. 

After reviewing Gilbert’s appellate briefs and the records on appeal, we 

conclude that the district court did not err in dismissing these cases. As the district 

1

 In Appeal No. 22-3229, Gilbert filed a motion to reconsider and for 

appointment of a special prosecutor. The motion, however, was nonsensical and did 

not address either of the grounds stated by the district court for dismissing the case. 

The district court summarily denied the motion. 

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court correctly noted in dismissing the cases, “[t]he right to remove a state court case 

to federal court is clearly limited to defendants.” Am. Int’l Underwriters 

(Philippines), Inc. v. Continental Ins. Co., 843 F.2d 1253, 1260 (9th Cir. 1988). 

Specifically, 28 U.S.C. § 1441(a) states that “[e]xcept as otherwise expressly 

provided by Act of Congress, any civil action brought in a State court of which the 

district courts of the United States have original jurisdiction, may be removed by the 

defendant or the defendants, to the district court of the United States . . . .” 28 U.S.C. 

§ 1441(a) (emphasis added). Thus, Gilbert lacked statutory authority to remove the 

cases. Moreover, Gilbert’s pleadings indicate that both cases have been closed in the 

Kansas state courts, and, as the district court noted, there is no federal authority 

whatsoever for removing a closed case from state court to federal court. 

II 

We AFFIRM the judgments entered by the district court in Appeal No. 

22-3213, Appeal No. 22-3229, Appeal No. 22-3230, and Appeal No. 22-3249. We 

DENY Gilbert’s motions for leave to proceed in forma pauperis. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge 

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