UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1084
BARRY NELSON THOMAS, JR.,
Plaintiff - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:10-cv-00897-HEH)
Submitted: June 30, 2011 Decided: July 5, 2011
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Barry Nelson Thomas, Jr., Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Nelson Thomas, Jr., appeals the district court’s
order dismissing his civil complaint for failure to state a
claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (2006), and
remanding his traffic court proceedings to state court. We
affirm in part, and dismiss in part for lack of jurisdiction.
We first reject Thomas’ challenge to the
constitutionality of § 1915(e)(2)(B)(ii). See generally
Vanderberg v. Donaldson, 259 F.3d 1321, 1232-24 (11th Cir. 2001)
(holding that § 1915(e)(2)(B)(ii) does not violate the Equal
Protection Clause because it is “rationally related to the
government’s legitimate interests in deterring meritless claims
and conserving judicial resources”). Accordingly, we affirm the
district court’s order to the extent that it dismissed Thomas’
complaint, which was filed in forma pauperis, for failure to
state a claim.
In the same order, the district court found it lacked
jurisdiction over the Virginia traffic court case that Thomas
attempted to remove to federal court, see 28 U.S.C. § 1441
(2006), and remanded those proceedings to the state court.
Because the district court remanded the case on grounds provided
for in 28 U.S.C. § 1447(c) (2006) (defects in removal procedure
or lack of subject matter jurisdiction), the remand order is not
appealable under 28 U.S.C. § 1447(d) (2006). We therefore
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dismiss the appeal in part for lack of subject matter
jurisdiction. See 28 U.S.C. § 1447(c), (d); Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 711-12 (1996); Ellenburg v.
Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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