A & D Security Consultants v. William Gray , 481 F. App'x 63 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1368
A & D SECURITY CONSULTANTS; LOWELL DUCKETT,
Plaintiffs - Appellees,
v.
WILLIAM GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. J. Frederick Motz, Senior District
Judge. (8:12-cv-00357-JFM)
Submitted: July 24, 2012 Decided: August 9, 2012
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
William T. Gray, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Gray appeals the district court’s order
remanding his case to state court following removal and denying
permission to proceed in forma pauperis. We dismiss in part and
affirm in part.
“An order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court from
which it was removed pursuant to . . . [28 U.S.C. §] 1443
[(2006)] shall be reviewable by appeal or otherwise.” 28
U.S.C.A. § 1447(d) (West Supp. 2012). Section 1447(d) prohibits
appellate review only of remand orders based on (1) lack of
subject matter jurisdiction, or (2) a defect in removal other
than subject matter jurisdiction that was timely raised by a
party. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12
(1996); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192,
196 (4th Cir. 2008). Thus, if the district court remands on one
of these enumerated grounds and § 1443 is not implicated,
“review is unavailable no matter how plain the legal error in
ordering the remand.” Briscoe v. Bell, 432 U.S. 404, 413 n.13
(1977).
In pertinent part, § 1443 authorizes removal of civil
actions from state court that are brought “[a]gainst any person
who is denied or cannot enforce in the courts of such State a
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right under any law providing for the equal civil rights of
citizens of the United States, or of all persons within the
jurisdiction thereof.” 28 U.S.C. § 1443(1). Removal is not
proper unless the federal court determines both “that the right
allegedly denied the removal petitioner arises under a federal
law providing for specific civil rights stated in terms of
racial equality” and “that the removal petitioner is denied or
cannot enforce the specified federal rights in the courts of
[the] State[,] . . . [which] normally requires that the denial
be manifest in a formal expression of state law.” Johnson v.
Mississippi, 421 U.S. 213, 219 (1975) (internal quotation marks
omitted).
Although Gray’s notice of removal claimed to seek
removal pursuant to § 1443, our review of the record leads us to
conclude that this case does not fairly implicate § 1443. See
§ 1443(1); Johnson, 421 U.S. at 219. Because the district court
concluded that it lacked subject matter jurisdiction over the
complaint, its remand order is not subject to appellate review.
See § 1447(d); Quackenbush, 517 U.S. at 711-12; Ellenburg, 519
F.3d at 196-98.
Turning to the district court’s denial of Gray’s
motion to proceed in forma pauperis in the district court, we
conclude that the district court did not abuse its discretion in
denying in forma pauperis status based on the information Gray
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provided in his financial affidavit and notice of removal. See
Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir.
1980). Finally, to the extent Gray raises broad claims of
judicial bias, we find no basis in the record to support Gray’s
unsubstantiated allegations and no grounds to question the
impartiality of the district court judge.
Accordingly, we deny leave to proceed in forma
pauperis, dismiss the appeal of the remand order, and affirm the
district court’s denial of in forma pauperis status. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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