PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BILLY LEE LISENBY, JR.,
Plaintiff-Appellee,
v.
KENNETH LEAR, Sergeant; RANDALL
LEAR, Chief of Police; JEFF D.
OUTLAW, PFC, No. 10-6462
Defendants-Appellants.
JOHN J. KORZEN,
Court-Assigned Amicus Counsel
Supporting Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
David C. Norton, Chief District Judge.
(8:09-cv-00410-DCN)
Argued: January 27, 2012
Decided: March 16, 2012
Before TRAXLER, Chief Judge, and WILKINSON and
WYNN, Circuit Judges.
Reversed by published opinion. Judge Wynn wrote the opin-
ion, in which Chief Judge Traxler and Judge Wilkinson con-
curred.
2 LISENBY v. LEAR
COUNSEL
ARGUED: Andrew Lindemann, DAVIDSON & LINDE-
MANN, PA, Columbia, South Carolina, for Appellants. Han-
nah E. Davis, WAKE FOREST UNIVERSITY, Winston-
Salem, North Carolina, for Amicus Supporting Appellee. ON
BRIEF: Daniel C. Plyler, DAVIDSON & LINDEMANN,
PA, Columbia, South Carolina, for Appellants. John J. Kor-
zen, Director, Leslie Cockrell, Third-Year Law Student,
WAKE FOREST UNIVERSITY, School of Law, Appellate
Advocacy Clinic, Winston-Salem, North Carolina, for
Amicus Supporting Appellee.
OPINION
WYNN, Circuit Judge:
Following Defendants’ removal to federal district court of
an action filed against them in state court by Plaintiff, the dis-
trict court remanded the case to state court, in part based on
Plaintiff’s status as a "three-strikes" prisoner due to his fre-
quent legal filings. Because we find that the district court
lacked a statutory or legal basis to remand Plaintiff’s action
to state court, we reverse the order below and reinstate Plain-
tiff’s complaint for further proceedings.
I.
On December 22, 2008, Plaintiff Billy Lisenby, Jr., an
inmate in the Ridgeland Correctional Institution in South Car-
olina, filed a complaint in state court against Defendants,
members of the Town of Chesterfield Police Department.
Plaintiff contended that Defendants had engaged in a cam-
paign of harassment against him and asserted several claims
against them, including violations of his federal constitutional
rights.1 At the same time he filed his complaint, Plaintiff also
filed a motion to proceed in forma pauperis.
1
The facts underlying Plaintiff’s complaint are largely irrelevant to the
issue before this Court on appeal, but the allegations indicate that Plaintiff
LISENBY v. LEAR 3
Based on the federal claims and pursuant to 28 U.S.C.
§§ 1331 and 1441, Defendants removed the action to federal
district court in South Carolina and paid the required filing fee
in full. Shortly thereafter, on March 17, 2009, a magistrate
judge issued a report in which she sua sponte raised the issue
of remand and ultimately recommended remanding the action
to state court. After considering Defendants’ objections, the
district court entered an order on February 26, 2010 that
adopted the magistrate’s recommendations and remanded the
matter to state court. Plaintiff did not object either to the
removal of the action to federal court, or to its remand to state
court.
In the district court’s order and opinion adopting the magis-
trate’s report and recommendation, the analysis supporting
remanding this case to state court was as follows: (1) based
on prior claims filed and dismissed as frivolous in federal
court, Plaintiff qualified as a "three-strikes" prisoner under the
Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915; (2)
section 1915(g) of the PLRA provides that a three-strikes
prisoner "may not bring a civil action" in federal court while
proceeding in forma pauperis "unless the prisoner is under
imminent danger of serious physical injury," resulting in a
requirement that the prisoner must pay the full filing fee prior
to commencing a suit; (3) as such, because Plaintiff did not
pay the filing fee, Plaintiff’s current cause of action was
barred in federal court.
The district court further found that dismissal of Plaintiff’s
complaint would not be appropriate, as it would allow Defen-
dants to end potentially meritorious litigation through a proce-
dural maneuver. Moreover, because the district court believed
allowing Plaintiff to remain in federal court would frustrate
the legislative purpose of the PLRA, it concluded that remand
and Defendants have had an ongoing feud for several years.
4 LISENBY v. LEAR
to state court was the most suitable course of action. Defen-
dants timely appealed.
II.
Defendants present a single issue for this Court’s review:
whether the district court erred by remanding Plaintiff’s
action to state court, thereby denying Defendants their right
to remove to federal court a complaint that included federal
claims.
A.
At the outset, Defendants must overcome the rule that an
appellate court generally lacks jurisdiction to review an order
remanding a case to state court. See 28 U.S.C. § 1447(d) ("An
order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise."). We have
previously noted that "[t]his limitation on review applies even
if the remand order is ‘manifestly, inarguably erroneous.’" In
re Blackwater Sec. Consulting, LLC, 460 F.3d 576, 582 (4th
Cir. 2006) (quoting Mangold v. Analytic Servs., Inc., 77 F.3d
1442, 1450 (4th Cir. 1996) (Phillips, J., specially concurring
and delivering the opinion of the Court on the issue of subject
matter jurisdiction) (citation omitted)).
Nevertheless, this Court has also recognized three excep-
tions to the general rule stated in section 1447(d) and
described situations in which review is permissible: (1) when
the remand order is not based on 28 U.S.C. § 1447(c), which
requires remand when the district court determines it lacks
subject matter jurisdiction; (2) when the review is of a collat-
eral decision that is severable from the remand order; or (3)
when the remand order exceeds the scope of the district
court’s authority. Id. at 583 (citations omitted).
The first and third exceptions are at issue in this case.
Defendants argue that because their notice of removal was
LISENBY v. LEAR 5
timely and properly filed, the district court had subject matter
jurisdiction over the case. Moreover, Defendants assert that
the order remanding the action to state court exceeded the
authority of the district court, as Plaintiff’s complaint on its
face raised federal claims, and there was no statutory or legal
basis for the removal but instead only the district court’s own
belief that it was "justifiable." See id. at 591 ("A district court
exceeds its statutory authority when it remands a case ‘on
grounds that seem justifiable to the court but which are not
recognized by the controlling statute.’" (quoting and citing
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351
(1976))). We agree.
A review of the order itself, as well as the underlying report
and recommendation from the magistrate, undermines Plain-
tiff’s position that the district court’s order should be "color-
ably characterized" as based on subject matter jurisdiction.
The district court never mentions subject matter jurisdiction
or any procedural defect in the removal process. Rather, the
district court’s analysis reflects an attempt to craft a solution
that would be "fair" to the parties while addressing the
"thorny issue" presented by this situation and seemingly clos-
ing a perceived loophole in the PLRA. J.A. 78.2
The district court thoroughly considered several different
possible outcomes, including allowing the case to proceed in
federal court, dismissing the case altogether, and remanding
to state court. Ultimately, the district court agreed with the
magistrate that the only way to ensure that Plaintiff did not
"circumvent Congressional intent, as expressed in Section
1915(g), to reduce the number of meritless prisoner filings so
that meritorious filings may be heard in an expeditious man-
ner," would be to remand to state court. J.A. 30. Nothing in
the plain language or reasoning of the order suggests that the
district court believed it lacked subject matter jurisdiction to
consider the case, or that there was otherwise some procedural
2
Citations to the joint appendix are abbreviated as "J.A."
6 LISENBY v. LEAR
defect in the removal process. See Blackwater, 460 F.3d at
584 (noting that an appellate court should consider "the sub-
stantive reasoning behind the order to determine whether it
was issued based upon the district court’s perception that it
lacked subject matter jurisdiction").
Plaintiff’s complaint includes federal claims; as such, on
the face of the complaint and pursuant to 28 U.S.C. §§ 1331
and 1441, the district court was vested with subject matter
jurisdiction to consider the case. Further, the district court
lacked a legal or statutory basis to remand the action to state
court. See Thermtron, 423 U.S. at 351 ("[W]e are not con-
vinced that Congress ever intended to extend carte blanche
authority to the district courts to revise the federal statutes
governing removal by remanding cases on grounds that seem
justifiable to them but which are not recognized by the con-
trolling statute."). Accordingly, we hold that the remand order
meets the first and third exceptions articulated in Blackwater
and is subject to our appellate review.
B.
With that threshold question resolved, we turn to the pro-
priety of the remand order itself. Specifically, we consider
Defendant’s argument that "[n]othing in the PLRA, the [in
forma pauperis] statute, or the removal statutes defeats [the
district court’s subject matter] jurisdiction, and therefore, the
district court had no authority to remand this action to state
court." Appellants’ Br. at 9.
The Supreme Court has stated that "[a]s a general matter,
defendants may remove to the appropriate federal district
court ‘any civil action brought in a State court of which the
district courts of the United States have original jurisdiction."
City of Chicago v. Int’l College of Surgeons, 522 U.S. 156,
163 (1997) (quoting 28 U.S.C. § 1441(a)). "The district courts
have original jurisdiction under the federal question statutes
over cases ‘arising under the Constitution, laws, or treaties of
LISENBY v. LEAR 7
the United States.’" Id. (quoting 28 U.S.C. § 1331). This
Court has likewise averred that "removal is appropriate if the
face of the complaint raises a federal question." Lontz v.
Tharp, 413 F.3d 435, 439 (4th Cir. 2005).
Here, there is no dispute that Plaintiff asserted federal con-
stitutional claims against Defendants in his complaint. As
such, Defendants’ removal of the case to federal district court
was appropriate. However, Plaintiff maintains that the order
remanding the action to state court was likewise proper
because it effectuates the legislative intent of the PLRA "to
control the volume of prisoner lawsuits overburdening the
resources of the federal courts." Tolbert v. Stevenson, 635
F.3d 646, 653 (4th Cir. 2011). Implicit in Plaintiff’s argument
seems to be the premise that the PLRA somehow strips a fed-
eral court of the subject matter jurisdiction to hear Plaintiff’s
case.
The "three strikes" provision of the PLRA states:
(g) In no event shall a prisoner bring a civil action
or appeal a judgment in a civil action or proceeding
under this [in forma pauperis] section if the prisoner
has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or
appeal in a court of the United States that was dis-
missed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent dan-
ger of serious physical injury.
28 U.S.C. § 1915(g). Thus, a "three strikes" prisoner is not
entirely precluded from federal court, but rather, to bring a
civil action in forma pauperis in federal court, that prisoner
must either pre-pay in full all filing fees or make a showing
of imminent danger of serious physical injury. We find these
requirements to be procedural, not jurisdictional, in nature.
See generally Brickwood Contractors, Inc. v. Datanet Eng’g,
8 LISENBY v. LEAR
Inc., 369 F.3d 385, 394 (4th Cir. 2004) (en banc) (discussing
the difference between jurisdictional and procedural rules,
noting that "a district court may have subject-matter jurisdic-
tion over a case but yet lack the power to act on a particular
claim made within that case," and defining a procedural rule
as one that "does not delineate a class of cases that the district
court is authorized to hear, but instead sets forth inflexible
rules governing the circumstances" under which a court may
hear and decide a claim).
Based upon a federal question, Defendants properly and
timely removed Plaintiff’s action to federal district court,
which is vested with the subject matter jurisdiction to hear
such claims. 28 U.S.C. §§ 1331, 1441. The PLRA did not
operate to strip the district court of that jurisdiction, nor is
there any other statutory or legal authority by which the dis-
trict court could properly remand the action to state court,
thereby depriving Defendants of their right to have the claims
heard in federal court. See Thermtron, 423 U.S. at 351 ("[W]e
are not convinced that Congress ever intended to extend carte
blanche authority to the district courts to revise the federal
statutes governing removal by remanding cases on grounds
that seem justifiable to them but which are not recognized by
the controlling statute.").
Accordingly, we reverse the remand order and reinstate
Plaintiff’s cause of action for further proceedings in the dis-
trict court below.3
3
We recognize that the district court will now again be faced with the
precise dilemma it grappled with in its original order, to wit, whether
Plaintiff’s cause of action may be dismissed under the PLRA or whether
it must be heard on the merits. Plaintiff argues that he did not "bring" the
action in federal court, and Defendants paid the filing fee upon removal,
suggesting that, aside from his status as a "three strikes" prisoner, the plain
language of § 1915(g) is inapplicable to the situation presented here. That
question, however, is not squarely before us here, and we properly leave
it for the district court to determine in the first instance.
LISENBY v. LEAR 9
III.
In conclusion, because we find that the district court’s order
was not based on a perceived lack of subject matter jurisdic-
tion or on a procedural defect in the removal process, we con-
clude that the order to remand Plaintiff’s complaint to state
court is subject to appellate review. Upon such review,
because Plaintiff asserted federal claims against Defendants,
and the PLRA is not jurisdictional in nature, we find that the
district court lacked the grounds to remand this case. Accord-
ingly, we reverse the order to remand and reinstate Plaintiff’s
cause of action for further proceedings before the district
court.
REVERSED