IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

PORESHA SHA-FAYE POLK, § 

 § 

Plaintiff, § 

§ 

V. § No. 3:22-cv-1814-S-BN 

§ 

MARIA CASTILLO and CHARLES HO, § 

§ 

Defendants. § 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE 

UNITED STATES MAGISTRATE JUDGE 

Relying on 28 U.S.C. §§ 1331, 1441, and 1446, Defendants Maria Castillo and 

Charles Ho removed this action that Plaintiff Poresha Sha-Faye Polk filed pro se in a 

Dallas County justice court because Polk alleged a federal question. See Dkt. No. 1 at 

3, ¶ 7 (“Polk makes a civil rights complaint and a claim of ‘racial discrimination’ as 

to Defendants ... under ‘1983 Civil Rights 312.’”). 

United States District Judge Karen Gren Scholer referred the removed action 

to the undersigned United States magistrate judge for pretrial management under 

28 U.S.C. § 636(b) and a standing order of reference. 

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power 

authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013) 

(quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); see 

also Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within constitutional bounds, 

Congress decides what cases the federal courts have jurisdiction to consider.”); 

Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (“Federal courts 

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are courts of limited jurisdiction, and absent jurisdiction conferred by statute, lack 

the power to adjudicate claims.”). 

They must therefore “presume that a suit lies outside this limited jurisdiction, 

and the burden of establishing federal jurisdiction rests on the party seeking the 

federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). 

Correspondingly, all federal courts have an independent duty to examine their 

own subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 

583-84 (1999) (“Subject-matter limitations ... keep the federal courts within the 

bounds the Constitution and Congress have prescribed. Accordingly, subject-matter 

delineations must be policed by the courts on their own initiative even at the highest 

level.” (citations omitted)). 

Under this duty, the undersigned entered an order on August 22, 2022 that 

explained the basis for the Court’s jurisdiction: 

Under their limited jurisdiction, federal courts generally may 

only hear a case if it involves a question of federal law or where diversity 

of citizenship exists between the parties. See 28 U.S.C. §§ 1331, 1332. 

And a defendant may remove an action filed in state court to federal 

court only if the action is one that could have originally been filed in 

federal court. See 28 U.S.C. § 1441(a). So, “[a]s a general rule, absent 

diversity jurisdiction, a case will not be removable if the complaint does 

not affirmatively allege a federal claim.” Beneficial Nat’l Bank v. 

Anderson, 539 U.S. 1, 6 (2003). 

“To determine whether the claim arises under federal law,” a 

district court must “examine the ‘well pleaded’ allegations of the 

complaint.” Id. That is, jurisdiction under Section 1331 only “exists 

when ‘a well-pleaded complaint establishes either that federal law 

creates the cause of action or that the plaintiff’s right to relief 

necessarily depends on resolution of a substantial question of federal 

law.’” Borden v. Allstate Ins. Co., 589 F.3d 168, 172 (5th Cir. 2009) 

(quoting Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 

1, 27-28 (1983)). 

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To support removal under Section 1331, the party asserting 

federal jurisdiction “must locate [its] basis ... in those allegations 

necessary to support the plaintiff’s claim.” Carpenter v. Wichita Falls 

Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995). And those allegations 

must be present at the time of removal. See Metro Ford Truck Sales, Inc. 

v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998) (“When an action 

is brought to federal court through the § 1441 mechanism, for both 

removal and original jurisdiction, the federal question must be 

presented by plaintiff’s complaint as it stands at the time the petition 

for removal is filed and the case seeks entry into the federal system. It 

is insufficient that a federal question has been raised as a matter of 

defense or as a counterclaim.” (cleaned up)). 

The basis for removal under Section 1331 cited in Defendants’ 

notice lifts Polk’s allegation out of context such that it is not clear that 

a federal question exists strictly on the language quoted in the notice. 

That is, in the first paragraph of the state court petition, Polk alleges, 

in substance, “[c]ome now Plaintiff with this civil rights complaint under 

Texas Article 104.003 and plead only state law claim under 1983 civil 

rights 312.005 Texas Government Code Ann.” Dkt. No. 1-2 at 6 

(emphasis added). 

There can be no dispute that “[t]he plaintiff is the master of his 

complaint. If he chooses to rely solely on state law, he may do so even if 

his allegations might also support a claim for relief under federal law.” 

Preston v. Mossbarger, No. 3:15-cv-1903-N, 2015 WL 4742549, at *3 

(N.D. Tex. Aug. 10, 2015) (quoting Leach v. Indiana, No. l:07-cv-1376-

DFH-JMS, 2007 WL 4256440 (S.D. Ind. Nov. 30, 2007)). Accord Medina 

v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). 

But Polk further alleges “Due Process and Equal Protection of the 

Law 14th Amendment” and then separately cites the Texas Constitution 

and state law. Dkt. No. 1-2 at 6. Polk next lays out facts that – solely for 

the purpose of jurisdictional screening consistent with the authority 

discussed below – could support an alleged violation of rights protected 

by the Fourteenth Amendment to the United States Constitution. See 

id. at 6-7. 

“The applicable test for determining jurisdiction on the face of the 

pleadings is not whether the plaintiffs could actually recover, but 

whether the federal claim alleged is so patently without merit as to 

justify the district court’s dismissal for want of jurisdiction.” Suthoff v. 

Yazoo Cnty. Indus. Dev. Corp., 637 F.2d 337, 340 (5th Cir. Unit A Feb. 

1981) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 

U.S. 59 (1978)). 

Put another way, “[s]ome claims are ‘so insubstantial, 

implausible, ... or otherwise completely devoid of merit as not to involve 

a federal controversy.’” Atakapa Indian de Creole Nation v. Louisiana, 

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943 F.3d 1004, 1007 (5th Cir. 2019) (quoting Oneida Indian Nation of 

N.Y. v. Oneida Cnty., 414 U.S. 661, 666 (1974)). And “a complaint that 

alleges the existence of a frivolous or insubstantial federal question is 

not sufficient to establish jurisdiction in a federal court.” Raymon v. 

Alvord Indep. Sch. Dist., 639 F.2d 257, 257 (5th Cir. Unit A Mar. 1981) 

(citing Olivares v. Martin, 555 F.2d 1192, 1195 (5th Cir. 1977); Hagans 

v. Levine, 415 U.S. 528, 538-39 (1974)); see also Southpark Square Ltd. 

v. City of Jackson, Miss., 565 F.2d 338, 342 (5th Cir. 1977) (a claim “must 

be more than frivolous to support federal question jurisdiction”). 

In sum, a complaint that simply points to a federal law does not 

provide for subject matter jurisdiction under Section 1331 where the 

complaint lacks factual allegations showing how the federal law applies 

to a plaintiff’s claim. See Mitchell v. Clinkscales, 253 F. App’x 339, 340 

(5th Cir. 2007) (per curiam) (“[A]lthough Mitchell argues that 

Clinkscales is liable under 42 U.S.C. § 1983, Mitchell does not allege 

facts demonstrating that Clinkscales acted under color of state law; 

thus, Mitchell failed to plead and establish subject-matter jurisdiction 

based on the existence of a federal question. [And t]he district court was 

required to dismiss the complaint.” (citation omitted)); Harrington v. 

City of Shiner, Tex., No. 6:20-cv-00039, 2021 WL 4503013, at *5 (S.D. 

Tex. Sept. 30, 2021) (“Harrington failed, not in stating conclusory or 

vague facts to support his Section 1983 claim, but in showing that the 

Section 1983 claim was not frivolous, insubstantial, or patently without 

merit given the facts that he did allege. Thus, the district court 

concluded that the claim did not raise a federal question given the lack 

of a foundation for the Section 1983 claim – that is, an alleged 

constitutional rights violation – as well as the lack of any factual 

allegations that could even imply the applicability of the statute.” 

(discussing prior dismissal by the court; citations omitted)). 

But here, Polk’s pro se allegations are enough to “imply the 

applicability of the” Fourteenth Amendment, Harrington, 2021 WL 

4503013, at *5 (emphasis added), which – also considering her citation 

to that authority – is sufficient to show how federal law applies to Polk’s 

claims. 

Defendants have therefore carried their burden to show a 

foundation for a nonfrivolous, not insubstantial violation of the United 

States Constitution, and the Court is satisfied that jurisdiction under 

Section 1331 existed at the time of removal. 

Dkt. No. 5 at 2-6 (footnote omitted). 

Eight days later, Polk filed a Motion to Dismiss for a Lack of Federal 

Jurisdiction of this Court [Dkt. No. 7], which the Court should construe as a motion 

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to remand. See id. at 7 (requesting that “this Court remove all federal claims and 

remand without prejudice as to the state claims”). 

In support of remand, Polk argues, in part, that this lawsuit consists of “only 

state issues of law that are protected under Texas Constitutional Laws”; that “the 

State can address as well as federal courts”; that “[t]his federal court [does] not have 

federal question jurisdiction simply because a federal right was available but was not 

asserted”; and that 28 U.S.C. § 1367(c) favors relinquishing jurisdiction. Id. at 2, 3, 

4, 7 (emphasis omitted). 

While some of these legal assertions are correct, they do not support remand 

here. The Court should therefore deny the motion to remand without considering 

briefing, an approach that will not prejudice Defendants. 

“Whether an action is removable based on federal question jurisdiction is 

determined by the allegations in the plaintiff’s ‘well-pleaded complaint’ at the time of 

removal.” Tobacco & Wine, Inc v. Cnty. of Dall., 456 F. Supp. 3d 788, 791-92 (N.D. 

Tex. 2020) (citing Medina, 238 F.3d at 680)); see also Renegade Swish, L.L.C. v. 

Wright, 857 F.3d 692, 695-96 (5th Cir. 2017) (“The [United States] Supreme Court 

has explained that ‘under the present statutory scheme as it has existed since 1887, 

a defendant may not remove a case to federal court unless the plaintiff’s complaint 

establishes that the case “arises under” federal law.’” (quoting Franchise Tax Bd., 463 

U.S. at 10)). 

A court presented with a motion to remand must therefore “evaluate the 

complaint at the time of removal.” Turner v. GoAuto Ins. Co., 33 F.4th 214, 215 (5th 

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Cir. 2022) (per curiam) (“When a case is removed from state court to federal court and 

the plaintiff seeks to have the case remanded, we evaluate the complaint at the time 

of removal.” (citing Bonin v. Sabine River Auth. of La., 961 F.3d 381, 385 (5th Cir. 

2020))). 

So even “[a] pleading amendment post-removal that removes all federal claims 

does not divest the federal court of jurisdiction and require remand to state court.” 

Tobacco & Wine, 456 F. Supp. 3d at 793 (citing 16 Front St., L.L.C. v. Miss. Silicon, 

L.L.C., 886 F.3d 549, 559 (5th Cir. 2018)). 

In any event, Polk may not amend allegations through a motion to remand. Cf. 

Biegon v. City of Dall., No. 3:21-cv-2006-C-BN, 2021 WL 4897660, at *3 (N.D. Tex. 

Sept. 30, 2021) (“Biegon may not amend his claims through the Notice of Removal or 

in response to the order to show cause, as ‘a claim for relief’ must be made through a 

pleading, FED. R. CIV. P. 8(a), and neither a notice of removal nor a response to a 

court’s order is among the ‘pleadings [that] are allowed’ under the Federal Rules of 

Civil Procedure, FED. R. CIV. P. 7(a).” (citation omitted)). 

And Polk’s arguments do not divest the Court of subject matter jurisdiction 

where it was evidently not her intent to cite the Fourteenth Amendment. See, e.g., 

Franks v. East, No. 1:07-CV108-SA-JAD, 2008 WL 4057078, at *2 (N.D. Miss. Aug. 

26, 2008) (“The Court ... cannot simply remand, and thereby relinquish jurisdiction 

over a case that alleges a claim, albeit seemingly mistakenly, arising under federal 

law.” (citations omitted)). 

But Polk may still amend the complaint consistent with Federal Rule of Civil 

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Procedure 15. And the Court may 

then revisit whether remand is appropriate pursuant to 28 U.S.C. [§ 

1367]. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988) 

(finding that when “the single federal-law claim in the action [is] 

eliminated at an early stage of the litigation, the District Court has a 

powerful reason to choose not to continue to exercise jurisdiction.”); 

Jones v. Houston Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th Cir .1992) 

(finding that a “district court has discretion to remand pendent state law 

claims after the plaintiff has dropped the federal cause of action on 

which removal was originally based.”); Boelens v. Redman Homes, Inc., 

759 F.2d 504, 507 n.2 (5th Cir. 1985) (explaining that “[a]lthough the 

voluntary dropping of all federal claims by a plaintiff in a removed case 

does not oust federal jurisdiction, the federal court may still exercise its 

discretion to not retain pendent jurisdiction over the remaining state 

claims.”). 

Franks, 2008 WL 4057078, at *3; see also Enochs v. Lampasas Cnty., 641 F.3d 155, 

161-62 (5th Cir. 2011) (“A district court has ‘wide discretion’ in deciding whether it 

should retain jurisdiction over state law claims once all federal claims have been 

eliminated. Thus, we are right to hesitate in rejecting the district court’s exercise of 

its discretionary authority, as the general rule of remanding state law claims to state 

court after all federal claims have been eliminated is ‘neither mandatory nor 

absolute.’ But such discretion is founded upon and guided by a court’s consideration 

of the prescribed statutory and common law factors. Our deference cannot stretch so 

far as to find no abuse of discretion where, as is the case here, all federal claims were 

deleted at the infancy of the case and the balance of the statutory and common law 

factors weighs heavily in favor of remand.” (citations omitted)). 

Recommendation

The Court should deny Plaintiff Poresha Sha-Faye Polk’s construed motion to 

remand [Dkt. No. 8]. 

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A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

DATED: August 31, 2022 

 _________________________________________ 

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE 

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