Rutherford County General Sessions Court et al v. Bey
ORDER: The petition for removal is DENIED, and this matter is DISMISSED for lack of subject matter jurisdiction. Signed by Chief Judge Waverly D. Crenshaw, Jr on 10/16/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
RUTHERFORD COUNTY GENERAL
SESSIONS COURT et al.,
RANDY SHARP BEY,
CHIEF JUDGE CRENSHAW
Randy Sharp Bey initiated an action in this Court by filing a “Notice of Removal” of a
state criminal prosecution against him. It appears he seeks to remove Criminal Action Numbers
4111336, 4111337, 4111338, and 4111508 to this Court from the Rutherford County General
Sessions Court. On September 12, 2017, the Court entered an Order (Doc. No. 2) directing Mr.
Bey either to pay the $400.00 filing fee or to submit a properly completed Application to
Proceed in District Court Without Prepaying Fees or Costs. In addition, the Court instructed Mr.
Bey to file, within thirty days of entry of the Order, an amended notice of removal identifying
the basis for removal and demonstrating that he is eligible under 28 U.S.C. § 1443 to remove a
state criminal proceeding to federal court. The Order also directed Mr. Bey to comply with 28
U.S.C. § 1455(a) by filing, along with his amended notice, “a copy of all process, pleadings, and
orders served upon” him thus far in the action and to abide by the procedural requirements for
removal set forth in 28 U.S.C. § 1455(b). More than thirty days have now passed since entry of
that Order, but Mr. Bey has not complied with any part of it. 1
In particular, Mr. Bey has failed to establish his eligibility to remove his criminal cases to
this Court or to comply with the procedural requirements for doing so. Accordingly, the petition
for removal is DENIED, and this matter is DISMISSED for lack of subject matter jurisdiction.
Fed. R. Civ. P. 12(h)(3). Because the attempted removal was ineffective, there is nothing to
remand to the state court.
This is the final Order in this action.
IT IS SO ORDERED.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
On October 10, Mr. Bey submitted a document entitled “Affidavit of Financial
Statement” (Doc. No. 3), but his affidavit does not contain the information required by the
Court’s standard form Application to Proceed in District Court Without Prepayment of Fees or
Costs or establish that he is unable to pay the filing fee. The Court notes now that it is unclear in
this Circuit whether payment of a filing fee is required under the circumstances. See Lefton v.
City of Hattiesburg, Miss., 333 F.2d 280, 285 (5th Cir. 1964) (holding that no filing fee is
required for the removal of a state criminal prosecution to federal court; Alabama v. Lucy, No.
14-00434-KD-N, 2014 WL 4685631, at *1 n.1 (S.D. Ala. Sept. 22, 2014) (same, citing Lefton);
28 U.S.C. § 1914(a) (requiring payment of filing fee only in “any civil action, suit or
proceeding”). But see Jones v. Tennessee, No. 2:09-cv-03, 2009 WL 334646 (E.D. Tenn. Feb.
10, 2009) (assessing civil filing fee against incarcerated pro se defendant who sought to remove
state criminal proceedings to federal court under 28 U.S.C. § 1915); 28 U.S.C. § 1915(a)
(authorizing “the commencement, prosecution or defense of any suit, action or proceeding, civil
or criminal, or appeal therein, without prepayment of fees or security therefore, by a person who
submits an affidavit that includes a statement . . . that such person is unable to pay such fees or
give security therefor”).
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