Pearson et al v. Commercial Bank of Ozark (Dale County CA # CV-2010-32)
OPINION AND ORDER, that it is the ORDER, JUDGMENT and DECREE of the court as follows: (1) plfs Lorenzo and Clarissa Pearson's 2 & 3 MOTIONS to proceed in forma pauperis are granted; (2) this cause is remanded to the Circuit Court of Dale County, pursuant to 28 U.S.C. 1446(c)(4); directing the clerk to take appropriate steps to effect the remand; this case is closed. Signed by Honorable Judge Myron H. Thompson on 1/10/12. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
LORENZO PEARSON and
COMMERCIAL BANK OF OZARK
and LARRY EZELL,
CIVIL ACTION NO.
OPINION AND ORDER
The court now has before it two motions to proceed in
forma pauperis filed by pro se plaintiffs Lorenzo and
Lorenzo Pearson removed this case from
state to federal court.
It is well established that a two-step procedure
pursuant to 28 U.S.C. § 1915.
“First, the district court
should determine whether the plaintiff satisfies the
economic eligibility criterion under 28 U.S.C. § 1915(a).
prepayment of fees.”1
Woodall v. Foti, 648 F.2d 268, 271
allows the district court summarily to deny relief if it
determines the complaint “is frivolous or malicious,”
“fails to state a claim on which relief may be granted,”
Section 1915(a)(1) provides:
“Subject to subsection (b), any court of
the United States may authorize the
commencement, prosecution or defense of
any suit, action or proceeding, civil or
criminal, or appeal therein, without
prepayment of fees or security therefor,
by a person who submits an affidavit
that includes a statement of all assets
such prisoner possesses that the person
is unable to pay such fees or give
security therefor. Such affidavit shall
state the nature of the action, defense
or appeal and affiant’s belief that the
person is entitled to redress.”
2. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the decisions
of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.
or “seeks monetary relief against a defendant who is
immune from such relief.”
28 U.S.C. § 1915(e)(2)(B)(i)-
The motions filed by the Pearsons satisfy the
economic eligibility criteria of § 1915(a)(1).
case, however, should be remanded to state court because
the notice of removal, which initiated this case, is
Lorenzo Pearson filed a notice of removal asserting
federal-question jurisdiction over his pending statecourt lawsuit against defendants Commercial Bank of Ozark
and Larry Ezell.
According to the Pearsons’ state-court
complaint, the bank, acting under the direction of Senior
Vice President Ezell, promised to provide them a loan
with which they planned to build a home.
Relying on that
promise, the Pearsons began construction.
promised loan never arrived and the Pearsons suffered
economic loss and damage to their credit.3
3. Given the disjointed nature of Lorenzo Pearson’s
pro se filings, the court cannot be certain that it has
The Pearsons brought suit in state court, alleging a
wantonness, fraudulent inducement, promissory estoppel,
and breach of fiduciary duty.
That action has been
pending for nearly two years and, according to Lorenzo
Pearson, the state court will soon rule on motions to
proceedings, Lorenzo Pearson filed a notice of removal in
Lorenzo Pearson argues that, while he “went in the State
Court as a Plaintiff,” he is now “defending [him]self for
due process, a federal issue under federal law.”
Notice 1 (Doc. No. 1).
More precisely, he alleges that
the state-court judge has conspired with the defendants
and their counsel to thwart his state-court action by
denying him indigent status, ignoring false statements
accurately set forth his allegations. Any misstatement,
however, is immaterial because this court plainly lacks
jurisdiction over the dispute.
made against him, denying his request that the judge
Subsection (a) of 28 U.S.C. § 1441, which governs the
removal of lawsuits from state to federal court, provides
in pertinent part as follows:
“Except as otherwise expressly provided
by Act of Congress, any civil action
brought in a State court of which the
district courts of the United States
have original jurisdiction, may be
defendants, to the district court of the
United States for the district and
division embracing the place where such
action is pending.”
The Supreme Court has cautioned that
this statute should be strictly construed.
& Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941).
that admonishment and the express and unambiguous terms
§ 1441(a) authorizes defendants only, and not plaintiffs,
to remove a suit to federal court.
See FDIC v. S & I 85-
§ 1441(a) does not grant Lorenzo Pearson the right to
seek removal of a cause of action in which he is the
Lorenzo Pearson attempts to circumvent that reality
He explains: “I am a Plaintiff in these cases
that has become a Defendant because the State has denied
me due process in all my cases.”
Removal Notice 2 (Doc.
defendant (or by state-court officials) cannot be enough
to transform a plaintiff into a “defendant” within the
meaning of § 1441(a).
Otherwise, every plaintiff, merely
by asserting a new federal claim (nearly every claim
embodies allegations of wrongdoing) in a pending statecourt action, could remove his case to federal court.
That would render meaningless the language of § 1441,
which refers to only defendants.
It may be that Lorenzo Pearson, because he is acting
pro se, filed this notice of removal without a proper
understanding of federal procedure.
For his benefit, and
because he is a plaintiff in similar actions pending in
understands that an individual filing an action against
another party is considered the plaintiff under federal
The federal removal statute does not authorize
plaintiffs to remove their cases to federal court, except
particularly true where, as here, the plaintiff appears
to be removing the case solely to avoid a potentially
unfavorable ruling from the state court.
Moreover, even if Lorenzo Pearson could remove this
case to this court, it would still need to be remanded
because there is no “federal question” presented.
Pearson’s claims are state-law claims; he has not alleged
any federal claims in state court.
He simply contends
that he is being mistreated in state court in violation
of federal law.
This mistreatment is not an independent
federal claim but rather is an argument that he should
present to a state appellate court should he lose on his
state-law claims in state court.
Removal jurisdiction is
not an avenue for federal review of state-court actions.
Accordingly, for the foregoing reasons, it is the
ORDER, JUDGMENT, and DECREE of the court as follows:
(1) Plaintiffs Lorenzo and Clarissa Pearson’s motions
to proceed in forma pauperis (Doc. Nos. 2 & 3) are
(2) This cause is remanded to the Circuit Court of
Dale County, pursuant to 28 U.S.C. § 1446(c)(4).
appropriate steps to effect the remand.
This case is closed.
DONE, this the 10th day of January, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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