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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

HUBERT BABB

 Plaintiff,

vs. 3:10cv205/MCR/MD

STATE OF FLORIDA,

 Defendant.

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner proceeding pro se, has filed a pleading entitled

“Petition to Remove Case from State Court” with attachments. (Doc. 1). Plaintiff

evidently seeks to “remove” a mandamus action he commenced and pursued in

state court. Plaintiff also filed a motion for leave to proceed in forma pauperis (doc.

2). For the limited purpose of dismissal of this case, leave to proceed in forma

pauperis will be granted. 

In plaintiff’s notice of removal he states that he wants to remove the petition

for writ of mandamus from state court jurisdiction to the jurisdiction of the U.S.

District Court and grant the relief requested therein, to wit an investigation of

allegedly unlawful acts of the prosecutor and his attorney that led to his conviction

and imprisonment. He apparently began to file mandamus petitions at some point

after the district court’s denial of his petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254 was affirmed on appeal and a petition for a writ of certiorari was

denied. (Case 3:04cv453/RS/MD, doc. 35, 55 & 56). Plaintiff’s attachments include

copies of numerous pleadings or petitions filed with the Supreme Court of Florida,

but the status of any of these petitions and whether the respondent has been served

is not clear. Plaintiff has also included an order entered by the Supreme Court of
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Florida on April 13, 2010 in case SC 10-649 indicating that his case was dismissed

for lack of jurisdiction.

To the extent plaintiff has sought to remove a case originally filed in state

court, such a removal is legally improper. Title 28 U.S.C. § 1441 states that “[e]xcept

as otherwise expressly provided by Act of Congress, any civil action brought in a

State court of which the district courts of the United States have original jurisdiction,

may be removed by the defendant or the defendants, to the district court of the

United States. . . .” 28 U.S.C. § 1441(a) (emphasis supplied). The right to remove a

state court case to federal court is clearly limited to defendants. 28 U.S.C. § 1441. 

See Geiger v. Arctco Enterprises, Inc., 910 F.Supp. 130, 131 (S.D. N.Y. 1996) (“It is

clear beyond peradventure of a doubt that the right of removal is vested exclusively

in defendants. A plaintiff simply may not remove an action from a state court

pursuant to 28 U.S.C. §§ 1441(a) and 1446(a). . . .”); Smith v. St. Luke’s Hospital, 480

F.Supp. 58 (D.C. S.D. 1979) (holding that a plaintiff has no right of removal under 28

U.S.C. § 1441); Union Const. Co. v. Dillingham Corp., 334 F.Supp. 502, 503 (D.C. Tex.

1971) (“A plaintiff cannot remove a case from a State to a Federal Court. [Title] 28

U.S.C. § 1441, specifically permits removal by a defendant or defendants, but not by

a plaintiff.”). Moreover, section 1446 discusses the removal procedure in the

exclusive context of removal by a defendant or defendants. 28 U.S.C. § 1446. 

The court has also considered the possibility that plaintiff seeks to use the

purported “removal” as a wayof collaterallychallengingthe legalityof his conviction

based on the allegedly unlawful actions of counsel as described in his submission. 

However, as noted above, he has already filed a habeas petition pursuant to 28

U.S.C. § 2254. And, there is nothing in plaintiff’s submissions to suggest that the

arguments and allegations he raises herein could be construed to fall within the

parameters of 28 U.S.C. § 2244 regarding second or successive petitions. 

Accordingly, it is ORDERED:

For the limited purpose of dismissal of this action, plaintiff is granted leave

to proceed in forma pauperis.

Case No: 3:10cv205/MCR/MD
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And it is respectfully RECOMMENDED:

That this case be dismissed, and the clerk be directed to close the file. 

DONE AND ORDERED this 16 day of June, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of any objections shall be served upon any other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv205/MCR/MD