2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-25-2009

TCIF Reo CIT LLC v. Patricia Gray

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2966

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Recommended Citation

"TCIF Reo CIT LLC v. Patricia Gray" (2009). 2009 Decisions. Paper 594.

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BLD-311 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2966

___________

TCIF REO CIT, LLC 

v.

PATRICIA R. GRAY; 

T. BARRY GRAY;

ALL OCCUPANTS OF 141 7TH AVENUE

 T. Barry Gray,

 Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 08-cv-02766)

District Judge: Honorable Edmund V. Ludwig

____________________________________

Submitted for Possible Dismissal due to a Jurisdictional Defect or Pursuant to 28 U.S.C. §

1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 11, 2009

Before: McKEE, FISHER and CHAGARES, Circuit Judges

(Opinion filed September 25, 2009)

_________

OPINION

_________

PER CURIAM

T. Barry Gray appeals the District Court’s order denying his motion to proceed in
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forma pauperis and remanding his civil action to the Court of Common Pleas of Delaware

County. We will affirm in part, reverse in part, and remand the matter.

In June 2008, Gray filed a motion to proceed in forma pauperis with a caption

listing himself as a defendant and TCIF REO CIT, LLC as plaintiff. He did not describe

any claims he wished to bring or explain whether he was attempting to remove an action

from state court. The District Court denied Gray’s motion to proceed in forma pauperis

and dismissed the action for lack of subject-matter jurisdiction. On appeal, we vacated

the District Court’s order and remanded the matter for the District Court to determine

whether Gray was financially eligible to proceed in forma pauperis and to give Gray an

opportunity to state the legal and factual basis for the action. 

On remand, the District Court directed Gray to provide a statement of the basis for

federal jurisdiction. Gray argued that the District Court had jurisdiction under 28 U.S.C.

§§ 1331, 1332, 1367, 1441(a), 1441(b), 1443, and 1446 and that the action could be

removed to the District Court under §§ 1332, 1441(a), 1441(b), 1441(c), 1443, and 1446. 

He explained that the action was a ejectment civil suit in which Appellee alleged that

Gray did not have the right to possess a piece of real property; Gray argued that removal

under § 1443 was justified because his Fourteenth Amendment rights were being

violated.

After describing Gray’s prior attempts to challenge state foreclosure proceedings,

the District Court concluded that it lacked jurisdiction over the removed action under the
 The Rooker-Feldman doctrine deprives a District Court of jurisdiction to review, 1

directly or indirectly, a state court adjudication. See D.C. Court of Appeals v. Feldman,

460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). 

3

doctrine of Rooker-Feldman and that abstention was appropriate under Younger v. 1

Harris, 401 U.S. 37 (1971). The District Court remanded the matter to the Court of

Common Pleas of Delaware County, and Gray filed a timely notice of appeal.

Denial of motion to proceed in forma pauperis

We first address the District Court’s denial of Gray’s motion to proceed in forma

pauperis. The District Court denied the motion on the grounds that there was no basis

upon which Gray could obtain relief. We review the denial of a motion to proceed in

forma pauperis for abuse of discretion. Adkins v. E.I. DuPont de Nemours & Co., 335

U.S. 331, 337 (1948); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983). However,

if the application is complete, the District Court should only consider whether the

applicant is economically eligible to proceed in forma pauperis. Sinwell v. Shapp, 536

F.2d 15, 19 (3d Cir. 1976). It is only after leave to proceed in forma pauperis has been

granted that the analysis under 28 U.S.C. § 1915(e)(2)(B) is undertaken and a complaint

may be dismissed as frivolous. See Deutsch v. United States, 67 F.3d 1080, 1085 n.5 (3d

Cir. 1995); Roman v. Jeffes, 904 F.3d 192, 194 n.1 (3d Cir. 1990). Thus, we again

conclude that the District Court abused its discretion in denying the motion to proceed in

forma pauperis on the grounds that Gray was not entitled to relief in federal court.

In his motion to proceed in forma pauperis filed in the District Court, Gray
4

indicated that his income was approximately $741 per month and he was unable to meet

his obligations for food, utilities, and medical needs. We believe that Gray is entitled to

proceed in forma pauperis and will reverse the District Court’s order to the extent that it

denied Gray’s motion to proceed in forma pauperis. We will remand the matter to the

District Court for it to enter an order granting Gray’s motion to proceed in forma

pauperis.

Remand to the state court

An order remanding a case to the state court from which it was removed is

generally not appealable. 28 U.S.C. § 1447(d). One exception is when the removal is

based on 28 U.S.C. § 1443. Because Gray invoked § 1443, we have jurisdiction to review

the District Court’s remand order to the extent that it denied removal pursuant to § 1443.

Section 1443(1) provides that an action may be removed if it is “[a]gainst any

person who is denied or cannot enforce in the courts of such State a right under any law

providing for the equal civil rights of citizens of the United States, or of all persons

within the jurisdiction thereof.” We have held that the civil rights removal statute is a

narrow exception to the rule that state court actions may be removed to federal district

court only if federal jurisdiction is evident on the face of plaintiff’s well-pleaded

complaint. See Davis v. Glanton, 107 F.3d 1044 (3d Cir. 1997). The Supreme Court has

articulated the precise circumstances required to sustain removal under § 1443(1),

clarifying that removal requires satisfaction of a two-prong test: a state court defendant
5

must demonstrate both (1) that he is being deprived of rights guaranteed by a federal law

“providing for . . . equal civil rights; and (2) that he is “denied or cannot enforce that right

in the courts” of the state. State of Georgia v. Rachel, 384 U.S. 780, 788 (1966). 

In the District Court and on appeal, Gray argues only that his Fourteenth

Amendment rights have been violated. This conclusory allegation is insufficient to

support removal under § 1443. Because we find § 1443 inapplicable, Gray is not entitled

to any further review of the District Court’s order of removal.

Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm

the District Court’s order as to the denial of removal, summarily reverse the District

Court’s order as to its denial of the in forma pauperis motion, and remand the matter for

the District Court to enter an order granting Gray’s motion to proceed in forma pauperis. 

See Third Circuit I.O.P. 10.6.