Lester v. GEORGIA DEPARTMENT OF CORRECTIONS et al
Filing
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ORDER Dismissing Plaintiff's case and REMANDING this case to the Superior Court of Baldwin County. Ordered by Judge C. Ashley Royal on 1/9/12. (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HENRY L. LESTER
:
:
Plaintiff,
:
:
v.
:
:
No. 5:11‐cv‐480 (CAR)
GEORGIA DEPARTMENT OF
:
CORRECTIONS, ALEXIS CHASE,
:
CALVIN RAMSEY, and EDWARD
:
H. BURNSIDE,
:
:
Defendants.
:
___________________________________ :
ORDER
Before the Court is pro se Plaintiff Henry L. Lester’s Notice of Removal [Doc. 1].
Plaintiff filed a state court “mandamus civil action” in the Baldwin County Superior
Court on July 8, 2008, for alleged federal and state constitutional violations. On
December 2, 2011, Plaintiff filed a Notice of Removal of his state court action.
The federal removal statute, in pertinent part, provides:
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.
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28 U.S.C. § 1441(a) (emphasis added). In accordance with the plain language of this
statute, only a defendant may remove an action from state to federal court. Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104‐05, 61 S.Ct. 868 (1941). The purpose of
restricting the right of removal to a defendant is to “restrict … removal to those who
had no choice in selection of a forum.” Escambia Cnty. Bd. of Educ. v. Benton, 358 F.
Supp. 2d 1112, 1119 (S.D. Ala. 2005) (quotation and citation omitted). Further, under
28 U.S.C. § 1446(c)(4), “[i]f it clearly appears on the face of the notice … that removal
should not be permitted, the court shall make an order for summary remand.”
Here, Plaintiff is not a defendant in the state action and therefore may not
remove that action to this Court. Plaintiff’s case is hereby DISMISSED and this case
is REMANDED to the Superior Court of Baldwin County.
SO ORDERED, this 9th day of January, 2012.
S/ C. Ashley Royal_
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH
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