United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND ORDER
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Gant has filed a pro se “Ex Parte Complaint”
against Tiffany Neely. (Doc. No. 1.) For good cause shown,
Plaintiff's Application to Proceed in District Court
Without Prepaying Fees or Costs (Doc. No. 2) is
GRANTED. However, for the reasons set forth
herein, the Complaint is DISMISSED.
Initial Review Because Plaintiff proceeds in forma
pauperis, the Court is required under 28 U.S.C. §
1915(e)(2) to conduct an initial review of the Complaint and
to dismiss it if it is facially frivolous or malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief against a defendant who is immune from such
relief. McGore v. Wrigglesworth, 114 F.3d 601, 604
(6th Cir. 1997), overruled on other grounds by Jones v.
Bock, 549 U.S. 199 (2007). The Sixth Circuit has
confirmed that the dismissal standard articulated by the
Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662
(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), “governs dismissals for failure to state a
claim under [§ 1915(e)(2)] because the relevant
statutory language tracks the language in Rule
12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010).
reviewing the complaint to determine whether it states a
plausible claim, “a district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). The court
must then consider whether those factual allegations,
accepted as true, “plausibly suggest an entitlement to
relief.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681).
The court “need not accept as true legal conclusions or
unwarranted factual inferences.” DirectTV, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). (quoting
Gregory v. Shelby Cty., 220 F.3d 433, 446 (6th Cir.
2000)). “[L]egal conclusions masquerading as factual
allegations will not suffice.” Eidson v. Tenn.
Dep't of Children's Servs., 510 F.3d 631, 634
(6th Cir. 2007).
se pleading must be liberally construed and “held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106
Factual Allegations and Claims for Relief
cryptic “Ex Parte Complaint” contains few factual
allegations. Plaintiff states only that he seeks an
injunction in the interest of justice under “Rule
2.” (Doc. No. 1 at 1.) He then states that the
“Plaintiff, ” apparently meaning the defendant,
Tiffany Neely, who is the plaintiff in a related state court
case, “seeks to be the administrator of John Henry
Gant's Estate, ” (Id.) Plaintiff insists
that the Chancery Court “ignor[ed] the filed title
report that showed the Defendant [Neely] and the other
parties has no standing in the matter and has already got
more money out of the estate than the standing heirs.”
(Id.) Plaintiff asks that “the matter of the
Title Report and the Chancery Court filings be transferred to
this District Court.” (Id. at 1-2.)
to this filing are (1) an Amended Complaint to Quiet Title
and for Partition, filed by Tiffany Gant Neely in the
Chancery Court for Davidson County, Tennessee No. 17-1057-II,
against six of her relatives including Johnny Gant, all of
whom are alleged to be joint owners as tenants in common of
real property located at 1903 Hermosa Street in Nashville;
(2) Motion for Default filed by Tiffany Gant in the same
proceeding; (3) a “Motion Ex Parte” filed by
Johnny Gant in the Tennessee Court of Appeals, as
“appellant” in No. M2018-02264-COA-R3-CV; and (4)
a poor copy of a medical provider note showing that Plaintiff
obtained medical care at Vanderbilt for symptoms including
shortness of breath on December 29, 2018. The Court also
takes judicial notice that the Tennessee Court of Appeals
issued an order on April 25, 2019 denying the relief sought
in that court by Johnny Gant. That court construed the
“Motion Ex Parte” as requesting that it enjoin
certain proceedings in the trial court. The court noted that
it appeared from the motion and other documents before it
that the trial court had not yet have entered final judgment.
It indicated that, to the extent final judgment had not been
entered, appellant Johnny Gant's notice of appeal would
be deemed premature and his motion for relief
invokes this Court's jurisdiction under 28 U.S.C.
§§ 1442 and 1443 and Title VI of the Civil Rights
Act of 1964, 42 U.S.C. § 2000d. (Doc. No. 1.) He also
claims of violations of the Due Process Clause of the Fifth
and Fourteenth Amendments to the United States Constitution,
based on which the Court also presumes Plaintiff seeks to
bring claims under 42 U.S.C. § 1983.
unclear whether Plaintiff seeks to bring a new Complaint
alleging claims against Neely for violations of his federal
rights, to simply to remove to this Court an ongoing state
proceeding, or to enjoin the state court proceedings.
as Plaintiff seeks to remove a state proceeding to this
Court, his “request” that the “Chancery
Court filings be transferred” to this Court is not an
effective form of removal under 28 U.S.C. § 1446.
Plaintiff did not follow the procedures set forth in §
1446(a) or (b). It is apparent that he did not comply with
subsection (d), which requires notice to “all adverse
parties” as well as the filing of a copy of the notice
of removal with the state court clerk. This latter action is
necessary to “effect the removal, ” after which
“the State court shall proceed no further unless and
until the case is remanded.” Id. §
1446(d). Because Plaintiff did not actually file a notice of
removal or notify the state court clerk of same, no removal
was actually effected, regardless of the other procedural
district court does not have authority to remand a case to
state court sua sponte based solely on a procedural defect in
removal. Page v. City of Southfield, 45 F.3d 128,
132-33 (6th Cir. 1995). In this case, however, the removal
procedure was so defective that it never actually occurred.
There is nothing to remand. And the Court has no authority to
grant Plaintiff's request that the Court
“transfer” the case on his behalf.
Plaintiff had effected a removal, sua sponte remand on the
basis of lack of subject-matter jurisdiction would be
required. See 28 U.S.C. § 1446(c) (“If at
any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.”). Plaintiff invokes 28 U.S.C. §§
1442 and 1443 as providing a basis for removal, but neither
applies in this case. Section 1442 permits the removal of any
criminal or civil action commenced in state court against the
United States or any federal agency, federal official, court
officer, or officer of either house of Congress. Plaintiff
does not fall into any of these categories. Section 1443
permits the removal of certain civil rights cases,
“[b]ut for § 1443(1) to apply under [the Sixth
Circuit's] binding precedent, the right denied must arise
under a federal law that ‘provides for specific civil
rights stated in terms of racial equality.'”
Tenn. Dep't of Children's Servs. v.
Winesburgh, 614 Fed.Appx. 277, 280 (6th Cir. 2015)
(citing Conrad v. Robinson, 871 F.2d 612, 614-15
(6th Cir. 1989)). Plaintiff does not invoke any such federal
law. See also Georgia v. Rachel, 384 U.S. 780, 792
(1966) (holding that a defendant's reliance on broad
constitutional or statutory provisions does not support
removal under section 1443 when those provisions “are
phrased in terms of general application available to all
persons or citizens, rather than in the specific language of
racial equality that section 1443 demands”). And
removal under § 1443(2) “is available only to
federal officers and to persons assisting such officers in
the performance of their official duties.”
Greenwood v. Peacock, 384 U.S. 808, 815 (1966). Nor
is removal appropriate under 28 U.S.C. § 1441, because
the Court would not have original jurisdiction over the
action filed ...