Opinion
No. 5:11-cv-480 (CAR)
01-09-2012
HENRY L. LESTER Plaintiff, v. 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.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.
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C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH