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-C V-03214-JWL-JPO & 5:22-CV-03216-JWL-JPO) (D. Kan.)

Nos. 22-3229 & 22-3249 (D.C. No. 5:22-CV-0 3217-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 appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 with out 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 This order and judgment is not binding precedent, except under the doctrines of law of the case , res judicata, and collateral estoppel.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: 12 ________________ _________________ Appellant Craig Ivan Gilbert, a Kansas state prisoner appearing pro se, appeals the dismissal of four cases that he attemp ted to remove from Kans as state courts to federal district cour t. Two of the appeals, No. 22-3213 and No. 22-3230, involve Gilbert’s attempts to rem ove closed criminal cases. The other two appeals, No. 22-3229 and No. 22-3249, involve Gilber t’s attempts to re move closed state habeas cases that he filed. Exercising jurisdiction ove r these appeals pursuant to 28 U.S.C. § 1291, we affirm the d ecisions 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 Re moval.” ROA at 3. The pleading purported to be removing a closed , but unspecified, 1999 criminal case from Ellsworth County, Kansas. The pleadi ng also purported to pose what Gilbert described as a “federal question,” i.e., “w hether a closed 1999 ca se can be removed to [United States District Court] when obstructive barr iers 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 G ilbert initiated on September 27, 2022, by filing a pleading ti tled “Notice of Removal.” ROA at 3. Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 23 That pleading purported to be removing a cl osed, 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 convic tion 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 authori zes a state criminal defendant, in very limited circumstances, to remove his or her cas e to federal district court. The district court concluded, however, that both of Gilb ert’s cases failed to satisfy the substantive and procedural requirements fo r removal pursuant to § 1443. Although the district court noted that an order for summary rema nd is typically the proper course of action when a state criminal cas e has been improperly removed to federal court, see 28 U.S.C. § 1455(b)(4), it conc luded that dismissal was the proper course of action in both of these cases because there was no c ourt to which they could be remanded. The district court entered final judgme nt in both cases on September 29, 2022. Gilbert moved for reconsideration in bot h cases, but the district court denied those motions as meritless. Gilbert filed a timely notice of app eal in each case, and has since filed an opening ap pellate 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 dist rict court correctly noted, 28 U.S.C. § 1455 Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 34 outlines the “Procedure for re moval of criminal prosecu tions” from state court and provides, in pertinent part, th at “[a] notice of removal of a criminal prosecution shall be filed not later than 30 days after the arra ignment 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, th at “[a] notice of removal of a criminal prosecution shall include all grounds for such re moval,” and that “[a] failure to state grounds that exist at the time of the filing of the notice shal l constitute a waiver of such grounds.” Id

. § 1455(b)(2). To be sure, th e statute affords a federal dist rict court with authority, in the event of “good cause shown,” to effe ctively modify thes e requirements. Id

. § 1455(b)(1), (2). Here, however, Gilber t’s notices of remova l were both untimely under § 1455(b)(1), failed to offer a ny grounds for removal as required by § 1455(b)(2), and also offered no basis upon which the district c ourt could conclude that good cause had been shown to modify the statutory require ments. Further, because the criminal cases th at Gilbert attempted to re move from state court were closed, the district court correctly conclude d 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 th e United States Dist rict 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 rem oving a closed, but unspecified, state habeas case that Gilbert filed in 200 3 in Ford County, Kansas, and that he subsequently Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 45 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 St ates District Court] when obstructive barriers Denied Right to Review Court A ppointed 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 removi ng 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 de fendant 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 orders 1 and has since filed opening appellate briefs in both appeals. After reviewing Gilbert’s appellate br iefs 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 fi led a motion to reconsider and for appointment of a special prosecutor. Th e motion, however, wa s nonsensical and did not address either of the grounds stated by the district court for dismissing the case. The district court summar ily denied the motion. Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 56 court correctly noted in dism issing 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 acti on brought in a State court of which the district courts of the Unite d States have original juri sdiction, 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 pl eadings indicate that both cases have been closed in the Kansas state courts, and, as the district court noted, th ere 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 Appellate Case: 22-3213 Document: 010110823266 Date Filed: 03/08/2023 Page: 6