United States District Court, D. Delaware
to Justice of the Peace Court of the State of Delaware in and
for Sussex County Crim.A. No. 1901010174
Ushango Owens, New Castle, Delaware, Pro Se Plaintiff.
U.S. District Judge.
Ushango Owens ("Plaintiff) improperly filed this action
as a combined notice of removal of a criminal matter under 28
U.S.C. §§ 1331, 1332, and 1441(a) and a civil
rights claim under 42 U.S.C. § 1983. (D.I. 2) He appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 5) Although the case has not yet
been screened, Defendants have filed a motion to dismiss.
(D.I. 7) It is unopposed. The Court proceeds to review and
screen the matter pursuant to 28 U.S.C. § 1915(e)(2)(b).
initial pleading states that a criminal matter was commenced
against Plaintiff on January 17, 2019. (D.I. 2 at 1) It also
alleges a violation of Plaintiff s First Amendment rights.
(Id. at 2) The Court takes judicial notice that on
January 17, 2019, Plaintiff caused a disturbance in a
courtroom at the New Casde County Courthouse (i.e., the
Leonard Williams Justice Center) when he became
"agitated and refused to comply" with an order by
the Chief Judge who had set cash bail. (See D.I. 9
at 32) Plaintiff refused to cooperate during an attempt to
handcuff him, and two Court of Common Pleas bailiffs were
injured during a subsequent attempt to handcuff him.
(Id. at 31-32) Plaintiff was arrested and arraigned
the same day in the Justice of the Peace Court of the State
of Delaware in and for Sussex County, bail was set, and he
was released. (Id. at 34, 36, 38; see also State
of Delaware v. Owens, Crim.A. No. 1901010174 (Del. J.P.
Plaintiff appeared in the Justice of the Peace Court, he was
informed of his right to be tried in the Court of Common
Pleas, which he elected to do. (Id.) Plaintiff was
also was advised of the charges against him (two counts of
assault third degree and one count of disorderly conduct).
(Id. at 37) The criminal case was transferred to the
Court of Common Pleas for the State of Delaware in and for
New Casde County on January 28, 2019, and arraignment set for
March 8, 2019. (Id. at 26; see also State of
Delaware v. Owens, CrimA. Nos. MN19103506, MN19103507,
MN19103508 (Del. Ct. Comm. Pleas)) Based upon documents
Plaintiff submitted with his combined notice of removal and
Complaint, he seeks to remove State of Delaware v.
Owens, Crim.A. No. 1901010174 (DeL J.P. Court) - not
State of Delaware v. Owens, Crim.A. Nos. MN19103506,
MN19103507, MN19103508 (Del. Ct Comm. Pleas). (See
D.I. 2-1 at 1)
Complaint Plaintiff alleges that the "Magistrate was
never a member in good standing of the State Bar of Delaware,
and consequently, he was never qualified to be appointed to
the office of United States Magistrate Judge in the First
instance." (D.I. 2 at 2) The pleading does not identify
this magistrate. Plaintiff also alleges that "his claim
to the office of New Castle County Chief Justice Judge now
assumes facts not in evidence." (Id.)
Presumably this allegation refers to Defendant Chief Justice
Smalls ("Judge Smalls") who is die Chief Judge of
the Court of Common Pleas. See
visited June 13, 2019). Plaintiff alleges that he has been
unable to obtain Judge Smalls' certificate of oath
indorsed upon his license to practice law in the State of
Delaware as mandated by the Delaware Business and Professions
Code. (Id.) CCP Court Bailiffs are named as
defendants in the caption of the initial pleading.
are sued in their individual and official capacities, and
Plaintiff seeks one million dollars in damages. (Id.
order for a case to be removable to the district court, the
Court must have original jurisdiction by either a federal
question or diversity of citizenship. 28 U.S.C. §§
1331, 1332, 1441. "Only state-court actions that
originally could have been filed in federal court may be
removed to federal court by the defendant." Kline v.
Security Guards, Inc., 386 F.3d 246, 252 (3d Cir. 2004)
(quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)). If the case could not have been filed originally
in federal court, then removal under 28 U.S.C. § 1441 is
improper and remand is appropriate. Id. (citations