Case 4:15-cv-00601-RC-DDB Document 21 Filed 01/22/16 Page 1 of 7 PageID #: 327
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`Civil Action No. 4:15CV601
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`ASHLEY B. WOMACK,
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`Plaintiff,
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`v.
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`RUSTIN P. WRIGHT
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`Defendant.
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`REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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`Pending before the Court is Plaintiff’s Motion to Remand (Dkt. 17) and Defendant’s
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`response.1 Having reviewed the record before it, the Court finds that Defendant has not established
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`proper removal jurisdiction and this case should be remanded.2
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`On September 3, 2015, Defendant Rustin P. Wright removed this case from the Sixth Judicial
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`District Court of Lamar County, Texas to this Court. Although the complete state court record is not
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`before the Court, the removed proceeding is a family law matter between two Texas parties
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`involving child custody/visitation and child support.
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`1Although no response was filed to the amended motion to remand, the Court has
`considered Defendant’s response to the originally filed motion to remand which was rendered
`deficient by the Clerk of Court and refiled as the underlying motion. See Dkt. 14.
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`2The Court notes that Rustin P. Wright filed a Notice of Interlocutory Appeal in this
`matter on November 4, 2015. See Dkt. 20. He did not request a stay of the underlying
`proceedings; thus, the Court proceeds with its recommendation of remand. See FED. R. APP. P. 8.
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`Case 4:15-cv-00601-RC-DDB Document 21 Filed 01/22/16 Page 2 of 7 PageID #: 328
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`In his notice of removal and related pleadings, Defendant Rustin P. Wright claims to be
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`continuously and systematically harassed by Lamar County and the related court administration
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`systems, alleging they repeatedly violated his most basic due process rights, by willfully, knowingly,
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`and intentionally conspiring in various commissions of criminal acts and behaviors and intentionally
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`conspiring to aid and abet grand scale larceny.3 Furthermore, Defendant claims that the state violated
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`his civil rights when it awarded rights over the minor child on the basis of blatant gender
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`discrimination, violating equal protection of the law and equal privileges and immunities. Defendant
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`alleges rubber-stamping by Lamar County courts of meritless, frivolous actions filed by Plaintiff
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`Ashley B. Womack and seeks civil damages, ranging from $110,000 to $130,000 for deprivation of
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`parent-child relationship.
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`In her motion, Plaintiff seeks to remand this case, arguing that Defendant lacks the proper
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`grounds to remove this matter to federal court. Plaintiff also seeks to be awarded her costs and
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`attorney’s fees, incurred as a result of this removal under 28 U.S.C. § 1447(c).
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` A court must ensure there is subject matter jurisdiction over a removed action. See Manguno
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`v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The removing party has the
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`burden of proof in demonstrating that removal to federal court is proper. Gasch v. Hartford Acc. &
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`Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). To determine whether federal jurisdiction is proper,
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`the court looks to the state court record at the time of removal. Manguno, 276 F.3d at 723. Because
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`the removal statute should be construed strictly in favor of remand, any ambiguities are construed
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`3Although Rustin P. Wright, filed several pleadings in this action identifying himself as
`the Plaintiff in this matter, he is the Defendant/Respondent in the state court action and treated as
`such herein.
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`Case 4:15-cv-00601-RC-DDB Document 21 Filed 01/22/16 Page 3 of 7 PageID #: 329
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`against removal. Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
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`Defendant argues that his removal of this family law proceeding is proper under 28 U.S.C.
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`§ 1443. Under 28 U.S.C. § 1443, a party may remove a case “[a]gainst any person who is denied
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`or cannot enforce in the courts of such State a right under any law providing for the equal civil rights
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`of citizens of the United States.” 28 U.S.C. § 1443(1). To properly remove a state court action
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`under Section 1443, the removing party must show that both “(1) the right allegedly denied him
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`arises under a federal law providing for a specific right to racial equality; and (2) that he is being
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`denied or cannot enforce the specified right in the state courts due to some formal expression of
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`law.” Muhammad v. Muhammad, 78 Fed. App’x 942, 943 (5th Cir. 2003) (citing State of Texas v.
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`Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir. 1982); Johnson v. Mississippi, 421 U.S. 213,
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`219 (1975)) (emphasis added). “Because the first prong of this test demands that the civil rights
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`asserted arise under laws phrased specifically in terms of racial equality rather than in general terms
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`of equality for all citizens comprehensively, broad first amendment or fourteenth amendment claims
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`do not satisfy the test, nor do claims arising under non-racially oriented statutes such as 42 U.S.C.
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`§ 1983.” Smith v. Winter, 717 F.2d 191, 194 (5th Cir. 1983). Removal under Section 1443 is thus
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`very narrowly construed “to require strict satisfaction of both the ‘civil rights’ element and the
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`‘enforcement’ element intrinsic within it.” JPMorgan Chase Bank, N.A. v. Innes, 2013 WL
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`5972407, at *2 (W.D. Tex. 2013).
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`For this reason, a defendant’s claim that trying a suit in state court “will violate rights under
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`constitutional or statutory provisions of general applicability or under statutes not protecting against
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`racial discrimination will not suffice” for removal under Section 1443. Cabello v. Texas, 71 F.
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`Case 4:15-cv-00601-RC-DDB Document 21 Filed 01/22/16 Page 4 of 7 PageID #: 330
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`App’x 315, 316 (5th Cir. 2003) (per curiam) (unpublished) (quoting Johnson, 421 U.S. at 219); see
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`also Goetz v. Craig & Heallen LLP, 2007 WL 836916, at *1 (S.D. Tex. 2007) (complaints of general
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`violations of due process rights by the state court fail to satisfy the applicable standard of racial
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`equality under 28 U.S.C. § 1443). And, because a party removing pursuant to Section 1443 must
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`establish that his civil rights were violated due to race, “conclusory allegations that state court
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`officials conspired to deprive him of certain non-race-related civil rights, including freedom of
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`association and due process of law” will not suffice for removal under Section 1443. Muhammad,
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`78 Fed. App’x at 943. Similarly, general statements about the denial of civil rights based on
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`socioeconomic status, rather than race, is insufficient for removal under Section 1443. Hibernia Nat.
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`Bank v. Robinson, 67 Fed. App’x 241, *2 (5th Cir. 2003).
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`In this case, Defendant fails to establish proper subject matter jurisdiction to remove
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`Plaintiff’s case. Although Defendant references and makes general statements about the denial of
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`civil rights based on violations of constitutional, due process, and equal protection rights, as well as
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`gender discrimination, he fails to allege that his rights under a statute protecting racial equality are
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`denied by law. See Robinson, 67 Fed. App’x at *2. That a defendant chooses to construe a suit as
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`a violation of his civil rights or seeks to bring affirmative claims alleging a federal question does not
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`confer subject matter jurisdiction in this Court. MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th
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`Cir. 2002); Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998)
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`(“the federal question must be presented by plaintiff’s complaint as it stands at the time the petition
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`for removal is filed and the case seeks entry into the federal system. It is insufficient that a federal
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`question has been raised as a matter of defense or as a counterclaim.”) (internal quotations omitted).
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`Case 4:15-cv-00601-RC-DDB Document 21 Filed 01/22/16 Page 5 of 7 PageID #: 331
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` As explained by the United States Supreme Court:
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`It is not enough to support removal under § 1443(1) to allege or show that the
`defendant’s federal equal civil rights have been illegally and corruptly denied by state
`administrative officials in advance of trial, that the charges against the defendant are
`false, or that the defendant is unable to obtain a fair trial in a particular state court ...
`Under § 1443(1), the vindication of the defendant’s federal rights is left to the state
`courts except in the rare situations where it can be clearly predicted by reason of the
`operation of a pervasive and explicit state or federal law that those rights will
`inevitably be denied by the very act of bringing the defendant to trial in the state
`court.
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`City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 827–28, 86 S. Ct. 1800, 16 L. Ed.2d 944 (1966)
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`(citations omitted). There is no such showing here, and Defendant has not satisfied the first prong
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`for removal under Section 1443.4
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`Because Defendant has failed to establish subject matter jurisdiction to remove this state
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`court action, this case should be remanded to state court. If Wright seeks to bring independent
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`claims against any individuals, including Womack, he may file a separate civil action in a court of
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`appropriate jurisdiction.
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`The Court next turns to Plaintiff’s request for an award of fees. Under 28 U.S.C. § 1447(c),
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`“[a]n order remanding the case may require payment of just costs and any actual expenses, including
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`attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The award of attorneys’
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`fees when a motion to remand is granted is neither mandatory nor carries a strong presumption in
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`favor of or against awarding attorneys’ fees. Martin v. Franklin Capitol Corp., 546 U.S. 132, 136-
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`141 (2005).
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`4The Court also notes that Defendant has not shown that he is being denied or cannot
`enforce any specified right in the state courts due to some formal expression of law in
`satisfaction of the second prong needed to remove a case under Section 1443.
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`The standard for awarding attorney’s fees under § 1447(c) should be determined on “the
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`reasonableness of the removal.” Martin v. Franklin Capitol Corp., 546 U.S. 132, 136-141 (2005).
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` Id. at 141 (citing Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004); Valdes v.
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`Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000)). When determining whether a court
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`should award attorney’s fees and costs after a motion to remand is granted, “[a]bsent unusual
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`circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party
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`lacked an objectively reasonable basis for seeking removal.” Id.
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`The Court declines to find that Defendant, who is proceeding pro se in this matter, lacked
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`an objectively reasonable basis for seeking removal.5 Therefore, the Court finds that no attorney’s
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`fees should be awarded.
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`For these reasons, the Court recommends that Plaintiff’s Motion to Remand (Dkt. 17) be
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`GRANTED in part and DENIED in part, that this case be remanded to the Sixth Judicial District
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`Court of Lamar County, Texas and that Plaintiff’s request for an award of fees be denied.
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`Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
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`and file written objections to the findings and recommendations of the magistrate judge. 28
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`U.S.C.A. § 636(b)(1)(C).
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`Failure to timely file written objections to the proposed findings and recommendations
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`contained in this report shall bar an aggrieved party from de novo review by the district court of the
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`5This is not to be construed as a finding that fees cannot be awarded against a pro se
`Defendant for improper removal. The Court merely finds that, in this case, given the statutory
`language and the rather complex case law narrowly interpreting it, Defendant’s pro se status is
`relevant in its fee determination.
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`proposed findings and recommendations and from appellate review of factual findings accepted or
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`adopted by the district court except on grounds of plain error or manifest injustice. Thomas v. Arn,
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`474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
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