IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41418
Conference Calendar
DENISE STOCKTON BELL,
Plaintiff-Appellant
versus
OFFICE OF THE COUNTY ATTORNEY,
COUNTY OF NUECES, TEXAS; ET AL.
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CV-496
October 28, 1998
Before POLITZ, Chief Judge, and WIENER and DENNIS, Circuit Judges.
Per Curiam*
Plaintiff-Appellant Denise Stockton Bell appeals the district
court’s remand to Texas state court of a case she had removed after
filing it in the state court as plaintiff. The district court
remanded the case to the state court where Bell had originally
filed it because Bell grounded her removal from state court in the
substance of 28 U.S.C. § 1443, which applies to cases in which the
defendant (not the plaintiff) “is denied or cannot enforce in the
*
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opinion should not be published and is not precedent except under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.
courts of State a right under any law providing for the equal civil
rights of citizens of the United States, or for all persons within
the jurisdiction thereof” or “[f]or any act under color of
authority derived from any law providing for equal rights, or for
refusing to do any act on the ground that it would be inconsistent
with such law.” 28 U.S.C. § 1443. Not only is Bell precluded from
removing under § 1443, because only a defendant is entitled to such
removal; she is also precluded because she did not —— and
presumably could not —— allege racial discrimination, another
prerequisite for removal under § 1443. See Texas v. Gulf Water
Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982). See also,
McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982).
Although the district court did not cite 28 U.S.C. § 1447(c),
its remand to state court appears to be grounded in a defect in
removal procedure, which is not reviewable on appeal or otherwise.
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995);
Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir. 1994); see
also, In Re: Allstate Ins. Co., 8 F.3d 219, 221 (5th Cir. 1993), and
McKenzie, 678 F.2d at 574 (suggesting that removal by plaintiff is
matter involving whether removal procedure was proper and not
whether district court had subject matter jurisdiction).
Accordingly, Bell’s appeal is
DISMISSED.
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