Nichols v. Cain , 122 F. App'x 161 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-30745
Conference Calendar
LARRY DONNELL NICHOLS,
Plaintiff-Appellant,
versus
BURL CAIN,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-381-C
--------------------
Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Larry Donnell Nichols, Louisiana prisoner # 161498,
challenges the district court’s dismissal of his petition for
removal of his state court action and the denial of his
application to proceed in forma pauperis (IFP) on appeal. He
contests the district court’s certification that his appeal is
not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-30745
-2-
Nichols has not shown that the district court erred in
determining that the state action could not be removed to federal
court by Nichols. Because the removal statutes provide that only
a defendant may remove a state action to federal court, the
district court did not err in determining that removal by Nichols
was improper. See 28 U.S.C. §§ 1441(a), 1443(1), 1446(a); see
also McKenzie v. United States, 678 F.2d 571, 574 (5th Cir.
1982).
Nichols has not demonstrated that he will raise a
nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983). Accordingly, Nichols’s motion to proceed
IFP is DENIED, and his appeal is DISMISSED as frivolous. 5TH CIR.
R. 42.2; Baugh, 117 F.3d at 202 n.24.
The dismissal of this appeal as frivolous counts as a strike
under the Prison Litigation Reform Act. See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996). Accordingly, Nichols is
cautioned that if he accumulates three strikes, he will not be
permitted to proceed IFP in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. 28 U.S.C.
§ 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.