Opinion
Civil Action No. 01-D-1625
July 12, 2002
ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S RECOMMENDATION
THIS MATTER is before the Court on United States' Motion to Dismiss, filed September 24, 2002. The matter was referred to Magistrate Judge Craig B. Shaffer for a Recommendation, which was issued on June 6, 2002, and is incorporated herein by reference. See 28 U.S.C. § 636(b), Fed.R.Civ.P. 72. Magistrate Judge Shaffer finds in the Recommendation that Defendant's Motion should be granted and the case should be dismissed with prejudice. On June 28, 2002, Petitioner filed an Opposition to Motion to Dismiss ("Opposition"), which will be treated as a timely Objection and necessitates a de novo determination as to those specified proposed findings or recommendations to which objection is made since the nature of the matter is dispositive. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).
After reviewing the pleadings and the Magistrate Judge's Recommendation, I find it proper to grant the United States' Motion to Dismiss on several grounds. First, as stated in the Recommendation, this case should be dismissed for lack of subject matter jurisdiction because on June 12, 2001, prior to its removal on August 17, 2001, this case was dismissed in the District Court, County of El Paso, Colorado, where it was originally filed. Fundamental to the right of removal is the requirement that there be a case to remove. See MHM Sponsors Co. v. Permanent Mission of Pakistan to U.N., 672 F. Supp. 752, 753 (S.D.N.Y. 1987). There is generally no jurisdiction to remove a closed case because no case or controversy exists when a case is closed. See Philpott v. Resolution Trust Corp., 739 F. Supp. 380, 384 (N.D.Ill. 1990). Thus, courts have held that removal is not possible where the case reached final judgment in state court. See Id. Accordingly, because this case was dismissed subsequent to its removal to this Court, I find that 1 do not have subject matter jurisdiction over this case.
Furthermore, Plaintiff has failed to present facts sufficient to state a claim. In his Objection, Plaintiff reprinted the identical arguments he presented in his Affidavit of Points and Authorities In Support of Plaintiffs Objection to Defendant's Motion to Dismiss ("Affidavit"), filed October 29, 2001, and were rejected in the Recommendation. Plaintiff claims that he brought action "because of the reckless and unlawful collection actions of specific agents, acting outside the scope and authority of the law and the Constitution of the United States,"Affidavit, p. 2. However, Plaintiff fails to present any such unlawful actions or demonstrate how his rights were allegedly violated.
The Court must accept Plaintiffs allegations of fact as true and determine if, standing alone, the Complaint "is legally sufficient to state a claim for relief." Wyoming v. United States, 279 F.3d 1214, 1222 (10th Cir. 2002). A pro se litigant's pleadings are to be construed liberally and are held to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991). At the same time, it is not the proper function of this Court to assume the role of advocate for the pro se litigant. Id. Plaintiff has merely made general assertions in support of his claim, and conclusory allegations are not facts. See Maher v. Durango Metals. Inc., 144 F.3d 1302, 1304 (10th Cir. 1998). Accordingly, I find Plaintiff's conclusory allegations insufficient to survive Defendant's motions to dismiss. Thus, for the aforementioned reasons in addition to those discussed in detail in the Recommendation, it is
ORDERED that the Recommendation is AFFIRMED and ADOPTED. United States' Motion to Dismiss, filed September 24, 2002, is GRANTED, this case is DISMISSED with prejudice, and each party must bear its own costs and attorney's fees.