     Case: 16-30469      Document: 00514001631         Page: 1    Date Filed: 05/22/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-30469                                FILED
                                  Summary Calendar                          May 22, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
Consolidated with 16-30886 and 16-31054

JEFFREY T. KRUEBBE,

              Plaintiff–Appellant,

v.

RAYLYN R. BEEVERS, The Honorable Judge, Division “B,” Second Parish
Court, Parish of Jefferson, State of Louisiana; CHARLES THOMAS CARR,
III, Assistant District Attorney, Parish of Jefferson, State of Louisiana,

              Defendants–Appellees.




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-6930


Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellee Jeffrey T. Kruebbe appeals the district court’s orders
remanding his criminal prosecution to state court and dismissing his civil
rights claims against Defendants–Appellees Judge Raylyn R. Beevers and


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 16-30469
                       Cons. w/ No. 16-30886 and No. 16-31054
Assistant District Attorney Charles Thomas Carr. We AFFIRM, and we DENY
Kruebbe’s motion to certify questions to the Louisiana Supreme Court.
                                  I. BACKGROUND
      In 2015, Kruebbe was charged with a misdemeanor criminal violation in
Louisiana state court. After Kruebbe failed to appear at his arraignment,
Judge Beevers found him in contempt, assessed a $150 fine, and issued a writ
of attachment for his arrest. Kruebbe claims that he was never served with
notice of the arraignment. Kruebbe’s mother paid the contempt fee, which was
deposited into the state court’s Judicial Expense Fund. Kruebbe then brought
this pro se civil rights action in federal district court against Judge Beevers,
Carr, and Clerk Jon A. Gegenheimer 1 and filed a notice of removal attempting
to remove his criminal prosecution from state court to federal court. Kruebbe
claimed that the Judicial Expense Fund and his state criminal prosecution
were unconstitutional because Judge Beevers and her colleagues on the state
court purportedly control and benefit from the funds they collect through fines,
resulting in judicial bias and denial of due process. The district court denied
Kruebbe’s request to remove his criminal case to federal court and remanded
the case to state court. The district court subsequently granted the Appellees’
motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). This appeal
followed.
                                   II. DISCUSSION
      Kruebbe makes numerous claims and accusations against the Appellees.
“Although we liberally construe the briefs of pro se appellants, we also require
that arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993) (quoting Price v. Dig. Equip. Corp., 846 F.2d 1026,



      1   Kruebbe only appeals claims with respect to Judge Beevers and Carr.
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1028 (5th Cir. 1988)). “An argument not raised before the district court cannot
be asserted for the first time on appeal.” XL Specialty Ins. v. Kiewit Offshore
Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008). And “[i]t is not enough to merely
mention or allude to a legal theory.” Willis v. Cleco Corp., 749 F.3d 314, 319
(5th Cir. 2014) (quoting United States v. Scroggins, 599 F.3d 433, 446 (5th Cir.
2010)). Instead, a party must “clearly identify[] a theory as a proposed basis
for deciding the case.” Id. (quoting Scroggins, 599 F.3d at 447). We decline to
consider several of Kruebbe’s claims on appeal because he did not raise them
before the district court and has failed to clearly identify proposed bases for
deciding the case. The only claims that Kruebbe has preserved and briefed with
sufficient clarity are his contentions that the district court erred in
(1) remanding his criminal case to state court, (2) dismissing his civil rights
claims, and (3) refusing to appoint him counsel.
A.    Remand to State Court
      “We review de novo a district court’s order remanding a case to state
court.” Admiral Ins. v. Abshire, 574 F.3d 267, 272 (5th Cir. 2009). Pursuant to
28 U.S.C. § 1443(1), a “criminal prosecution[] commenced in a State court may
be removed by the defendant to the district court of the United States” if the
prosecution is “[a]gainst any person who is denied or cannot enforce in the
courts of such State a right under any law providing for the equal civil rights
of citizens of the United States, or of all persons within the jurisdiction
thereof.” As the district court pointed out, the Supreme Court held in Georgia
v. Rachel that “the phrase ‘any law providing for . . . equal civil rights’ must be
construed to mean any law providing for specific civil rights stated in terms of
racial equality.” 384 U.S. 780, 792 (1966).
      Kruebbe argues that the Supreme Court’s decision in Rachel was
subsequently reversed by Chapman v. Houston Welfare Rights Organization,

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441 U.S. 600 (1979). But Chapman involved the interpretation of a different
statute, 28 U.S.C. § 1343, and thus did not overturn Rachel. On the contrary,
Chapman reiterated Rachel’s holding, explaining that § 1443 “was enacted in
the Civil Rights Act of 1866 under the authority of the Thirteenth Amendment”
and was therefore “limited to racially based claims of inequality.” Id. at 622
n.41. By contrast, § 1343 is “based upon the authority of the Fourteenth
Amendment,” which does not contain the same limitation. Id. In requesting
that his case be removed to federal court, Kruebbe did not allege that he was
denied or unable to enforce rights under any law providing for equal civil rights
stated in terms of racial equality. Therefore, § 1443(1) did not apply to his
criminal prosecution.
      Kruebbe also contends that his criminal case should have been removed
from state court under 28 U.S.C. § 1455. But this statute does not provide
criminal defendants with a separate right to remove their cases from state
court. Rather, as the provision’s heading and plain language indicate, § 1455
merely provides procedures that must be followed in order to remove a criminal
case from state court when a defendant has the right to do so under another
provision, such as 28 U.S.C. § 1443. Accordingly, we hold that the district court
was correct in remanding Kruebbe’s criminal case to state court.
B.    Civil Rights Claims
      “We review de novo the grant of a Rule 12(b)(6) motion to dismiss.” Loupe
v. O’Bannon, 824 F.3d 534, 536 (5th Cir. 2016). The district court granted
Judge Beevers’s motion to dismiss because the court concluded that it was
required to abstain under Younger v. Harris, 401 U.S. 37 (1971). Pursuant to
Younger, federal courts generally decline to exercise jurisdiction over a lawsuit
when: “(1) the federal proceeding would interfere with an ‘ongoing state
judicial proceeding’; (2) the state has an important interest in regulating the

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subject matter of the claim; and (3) the plaintiff has ‘an adequate opportunity
in the state proceedings to raise constitutional challenges.’” Bice v. La. Pub.
Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)). “If the three
prerequisites are satisfied, then a federal court can assert jurisdiction only if
‘certain narrowly delimited exceptions to the abstention doctrine apply.’” Id.
(quoting Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004)).
      First, Kruebbe contends that because he was never served with notice of
his arraignment, there were no ongoing state judicial proceedings. Despite any
initial deficiencies in service, however, Kruebbe eventually learned about the
state proceedings and appeared before the state court. Moreover, the fact that
Kruebbe attempted to remove his state criminal case to federal court makes
clear that there were ongoing state judicial proceedings. Next, Kruebbe argues
that the state has not afforded him an adequate opportunity to raise his
constitutional challenges because Judge Beevers denied his motion to transfer
venue. He claims that a change of venue was necessary to protect his
constitutional rights because Judge Beevers was allegedly profiting from the
Judicial Expense Fund and was therefore biased. But the evidence shows that
Kruebbe was able to challenge the $150 contempt fine and its constitutionality
in the state proceedings: after Kruebbe complained he was never served with
notice of his arraignment, Judge Beevers ordered that the contempt fine be
reevaluated at trial. Finally, Kruebbe argues that Younger is inapplicable
because Article 622 of the Louisiana Code of Criminal Procedure purportedly
allows him to remove his case from state to federal court. Article 622, however,
merely describes when a case may be moved to another venue within the state
court system. Removal of a case from state to federal court is governed by
federal law, 28 U.S.C. §§ 1441–55; therefore, Article 622 is not relevant to the

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Younger analysis. We hold that the district court properly dismissed Kruebbe’s
civil rights claims against Judge Beevers.
      The district court granted Carr’s motion to dismiss because Kruebbe
failed to allege facts tending to show Carr liable for misconduct. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. As the district court noted,
Kruebbe’s complaint and amended complaint did not include any specific
factual allegations suggesting that Carr had engaged in misconduct.
Accordingly, we hold that the district court properly dismissed Kruebbe’s
claims against Carr for failing to state a claim for relief.
C.    Appointment of Counsel
      We review the denial of a motion for appointment of counsel in a civil
rights case for abuse of discretion. Naranjo v. Thompson, 809 F.3d 793, 799
(5th Cir. 2015). In doing so, we assess whether the district court’s underlying
factual findings were clearly erroneous. Id. at 800. “A district court should
appoint counsel in a civil rights case only if presented with exceptional
circumstances.” Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997). To
determine whether exceptional circumstances exist, the court should consider:
      (1) the type and complexity of the case; (2) whether the indigent
      litigant is capable of adequately presenting his case; (3) whether
      the litigant is in a position to investigate the case adequately;
      (4) whether the evidence will consist in large part of conflicting
      testimony, thus requiring skill in presentation and cross-
      examination.


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Id. (quoting Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)). “Once a
district court finds that a particular case presents exceptional circumstances,
it abuses its discretion by declining to appoint counsel.” Naranjo, 809 F.3d at
801.
        In this case, the district court indicated that the issues presented by
Kruebbe’s case were not particularly complex, that Kruebbe was “extremely
eloquent,” “able to adequately present his case,” and “able to adequately
investigate his case,” and that the case was unlikely to involve conflicting
testimony. Therefore, the district court concluded that the case did not present
“exceptional circumstances that warrant the appointment of counsel in a civil
case.” After reviewing the record, we hold that the district court’s findings were
not clearly erroneous and that the district court did not abuse its discretion in
denying Kruebbe’s motion for appointment of counsel.
                                 III. CONCLUSION
        For the reasons discussed above, we AFFIRM. Because we hold that
there is no basis upon which Kruebbe’s federal case can proceed at this time,
Kruebbe’s motion to certify questions of state law to the Louisiana Supreme
Court is DENIED.




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