Pearson et al v. Commercial Bank of Ozark et al (Dale Co. CA #CV-10-85)

Filing 4

OPINION AND ORDER as follows: (1) Plaintiffs Lorenzo and Clarissa Pearson's motions to proceed in forma pauperis 2 & 3 are granted. (2) This cause is remanded to the Circuit Court of Dale County, pursuant to 28 U.S.C. § 1446(c)(4). The clerk of the court is DIRECTED to take appropriate steps to effect the remand. This case is closed. Signed by Honorable Judge Myron H. Thompson on 1/10/2012. (jg, ) Certified copy of order to Circuit Clerk of Dale County.

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

LORENZO PEARSON and
CLARISSA PEARSON,
Plaintiffs,
v.
COMMERCIAL BANK OF OZARK
and LARRY EZELL,
Defendants.

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CIVIL ACTION NO.
1:12cv17-MHT
(WO)

OPINION AND ORDER
The court now has before it two motions to proceed in
forma pauperis filed by pro se plaintiffs Lorenzo and
Clarissa Pearson.

Lorenzo Pearson removed this case from

state to federal court.
It is well established that a two-step procedure
should

be

followed

in

processing

pursuant to 28 U.S.C. § 1915.

a

case

initiated

“First, the district court

should determine whether the plaintiff satisfies the
economic eligibility criterion under 28 U.S.C. § 1915(a).

Upon

a

should

finding
allow

of

the

economic
complaint

prepayment of fees.”1
(5th

Cir.

1981)

Strickland,
Second,

once

760

to

be

the

docketed

court

without

Woodall v. Foti, 648 F.2d 268, 271

(per
F.2d

leave

justification,

curiam);
1107,

has

been

1114

see

also

(11th

granted,

Procup

Cir.

this

v.

1985).2

provision

allows the district court summarily to deny relief if it

1.

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.
2

determines the complaint “is frivolous or malicious,”
“fails to state a claim on which relief may be granted,”
or “seeks monetary relief against a defendant who is
immune from such relief.”
(iii).

28 U.S.C. § 1915(e)(2)(B)(i)-

The motions filed by the Pearsons satisfy the

economic eligibility criteria of § 1915(a)(1).

This

case, however, should be remanded to state court because
the notice of removal, which initiated this case, is
frivolous.
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.
state-court
direction

According to the Pearsons’ amended

complaint,

of

Senior

the

Vice

bank,

President

acting

under

Ezell,

failed

the
to

release property that it was holding as collateral to a
mortgage

even

after

the

mortgage

loan

was

repaid.

Instead, the bank sold the property and has since refused

3

to turn over to the Pearsons approximately $ 13,500 in
proceeds from that sale.3
The Pearsons brought suit in state court, alleging
state-law
fraud,

claims

wrongful

of

negligence,

foreclosure,

mortgage foreclosure sale.

and

wantonness,
improper

mortgage

notice

of

That action has been pending

for more than a year and, according to Lorenzo Pearson,
the state court will soon rule on motions to dismiss.
Unhappy

with

the

course

of

the

state-court

proceedings, Lorenzo Pearson filed a notice of removal in
this

court

asserting

federal-question

jurisdiction.

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).

Removal

More precisely, he alleges that

the state-court judge has conspired with the defendants

3. Given the disjointed nature of Lorenzo Pearson’s
pro se filings, the court cannot be certain that it has
accurately set forth his allegations. Any misstatement,
however, is immaterial because this court plainly lacks
jurisdiction over the dispute.
4

and their counsel to thwart his state-court action by
denying him indigent status, ignoring false statements
made against him, denying his request that the judge
recuse

himself,

and

committing

mail

and

wire

fraud

against him.
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
removed
by
the
defendant
or
the
defendants, to the district court of the
United States for the district and
division embracing the place where such
action is pending.”
(Emphasis added).

The Supreme Court has cautioned that

this statute should be strictly construed.

Shamrock Oil

& Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941).

Given

that admonishment and the express and unambiguous terms
of

the

Eleventh

statute
Circuit

itself,

it

is

Court

of

Appeals

5

unsurprising
has

that

stated

the
that

§ 1441(a) authorizes defendants only, and not plaintiffs,
See FDIC v. S & I 85-

to remove a suit to federal court.
1,

Ltd.,

22

Consequently,

F.3d
this

1070,

1072

action

must

(11th
be

Cir.

remanded

1994).
because

§ 1441(a) does not grant Lorenzo Pearson the right to
seek removal of a cause of action in which he is the
plaintiff.
Lorenzo Pearson attempts to circumvent that reality
by

characterizing

plaintiff.

himself

as

defendant,

rather

than

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.

No.

of

1).

But

new

allegations

wrongdoing

by

the

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.

6

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
state

court,

this

court

wants

to

ensure

that

he

understands that an individual filing an action against
another party is considered the plaintiff under federal
law.

The federal removal statute does not authorize

plaintiffs to remove their cases to federal court, except
in

rare

situations

not

applicable

here.

That

is

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.

All of

Pearson’s claims are state-law claims; he has not alleged

7

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
granted.
(2) This cause is remanded to the Circuit Court of
Dale County, pursuant to 28 U.S.C. § 1446(c)(4).
The

clerk

of

the

court

is

DIRECTED

to

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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