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United States Court of Appeals First Circuit

Nathaniel Denman filed a petition seeking removal of his eminent domain case from state court to federal court. The district court dismissed the petition for removal because Denman was not a defendant in the state court action, which is required by the removal statute. Even if Denman could be considered a de facto defendant, removal would still not be proper as the case does not involve Denman's equal rights, as required for removal under the statute. The First Circuit affirmed the district court's dismissal.

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30 views2 pages

United States Court of Appeals First Circuit

Nathaniel Denman filed a petition seeking removal of his eminent domain case from state court to federal court. The district court dismissed the petition for removal because Denman was not a defendant in the state court action, which is required by the removal statute. Even if Denman could be considered a de facto defendant, removal would still not be proper as the case does not involve Denman's equal rights, as required for removal under the statute. The First Circuit affirmed the district court's dismissal.

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404 F.

2d 64

In the matter of Nathaniel A. Denman, Petitioner Decree No.


3535 of the County Commissioners of Barnstable
County and Nathaniel A. DENMAN et al., Appellants,
v.
COUNTY OF BARNSTABLE et al., Appellees.
No. 7163.

United States Court of Appeals First Circuit.


Dec. 3, 1968.

Nathaniel A. Denman, pro se.


Appellees not appearing.
Before STALEY,1 Senior Circuit Judge, McENTEE and COFFIN, Circuit
judges.
PER CURIAM.

This is an appeal from a District Court order dismissing a petition for removal
and remanding the cause to the state court. The original action was brought by
petitioner against county commissioners seeking an increase in a land damage
award stemming from a local eminent domain proceeding.

The petition contains a lengthy recital of difficulties encountered by petitioner


in a state court in connection with his land litigation. These include alleged bias
on the part of a judge and other officials, attempts to commit petitioner for
examination, a threat to appoint a guardian ad litem, refusal to make a transcript
of court proceedings available, denial of access to a county law library, setting
his case for trial ahead of schedule. He seeks removal under 28 U.S.C. 1443(1)
to 'enforce his equal rights' and particularly 'his right to protect and defend his
property'.

The district court dismissed the petition on the ground that the petitioner was
not a defendant in the state court action, as required by Section 1443. This

action was clearly required from a reading of the petition.


4

Even if we were to consider petitioner's rather ingenious argument that he is a


de facto defendant in that his petition for increase in land damages arises out of
an eminent domain proceeding in which he was a defendant, we would still
affirm. Sunflower County Colored Baptist Ass'n v. Trustees of Indianola, 369
F.2d 795 (5th Cir. 1966); see also Georgia v. Rachel, 384 U.S. 780, 788-793, 86
S.Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood, Miss. v. Peacock,
384 U.S. 808, 815, 827-828, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966).

Affirmed.

Of the Third Circuit, sitting by designation

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