ACS v. Malek

Background

Robert Malek, who was representing himself, filed a notice seeking to remove two child-neglect proceedings brought by the New York City Administration for Children’s Services (ACS) in the Family Court of the State of New York, City of New York, Kings County. The proceedings had been initiated on July 31, 2018. Malek alleged that ACS had made knowingly false statements and documents and that ACS and/or the Family Court were violating rights under several constitutional amendments and federal criminal statutes.

Reasons Removal Was Improper

The court identified several independent reasons the removal could not proceed:

- Wrong federal district: Under 28 U.S.C. § 1441(a), a state action may be removed only to the federal district court covering the place where the state action is pending. Kings County is in the Eastern District of New York, but Malek directed his notice to the Southern District of New York. - Failure to comply with removal requirements: Under 28 U.S.C. § 1446(a), a notice of removal must include a short and plain statement of the grounds for removal and copies of the relevant process, pleadings, and orders served on the defendant. The court found that Malek attached only two amended petitions and did not provide the required materials. - Untimeliness: A notice of removal generally must be filed within thirty days after the defendant receives a pleading, motion, or other paper showing that the case may be removable. The court found that Malek did not allege facts showing that he received such a document within thirty days before filing his notice. His general allegations of perjury, fraud, and constitutional violations were insufficient. - No original federal jurisdiction: Federal-question jurisdiction ordinarily depends on a federal question appearing on the face of the plaintiff’s properly pleaded complaint, not on a federal defense or counterargument. Malek did not attach the original complaints, and nothing in his notice showed that ACS’s pleadings presented a federal question. - No basis under 28 U.S.C. § 1443: That statute permits removal in limited circumstances involving denial of specified federal civil rights stated in terms of racial equality. The court held that Malek’s allegations did not satisfy that requirement and also did not show that he could not enforce a specific federal right in New York Family Court. The court separately noted that § 1443(2) is available only to federal officers and people assisting them in carrying out their official duties.

Disposition

The court concluded that the proceedings could not be removed and remanded the actions under 28 U.S.C. § 1447(c) to the State of New York Family Court, City of New York, Kings County. It directed the Clerk to send the order to that court, close the federal action, and terminate all pending matters.

The court also denied Plaintiff’s motion to seal as moot, directed the Clerk to terminate ECF No. 5 and strike that submission from the docket, and certified that any appeal would not be taken in good faith. The court therefore denied permission to appeal without paying filing fees.