United States District Court, D. South Carolina
Sponte Remand to State Court
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Obregon-Mejia (“Defendant”), proceeding pro
se, filed a petition for removal that purports to remove an
action for termination of parental rights from the Anderson
County Family Court in the 10th Judicial Circuit in Anderson,
South Carolina, at Case No. 2014-DR-04-1781/2014-DR-04-1731.
[See Doc. 1.] Defendant is a federal prisoner, and
she files this action in forma pauperis under 28
U.S.C. § 1915. All pretrial proceedings in this matter
were referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.).
This case is subject to sua sponte
remand. Accordingly, for the reasons explained
below, it is recommended that this matter be remanded for
lack of subject matter jurisdiction.
AND PROCEDURAL HISTORY
a pro se litigant, initiated this action by filing a
“Petition for Removal to Federal Court.” [Doc.
1.] Specifically, Defendant seeks to remove an Anderson
County Family Court matter at Case No.
2014-DR-04-1781/2014-DR-04-1731, which is an action for
termination of parental rights commenced by the South
Carolina Department of Social Services (“DSS” or
“Plaintiff”) against Defendant and her husband,
Hector Navarrete (“Navarrete”).
is a Mexican national, who is currently incarcerated at the
Federal Correctional Institution in Waseca, Minnesota. [Doc.
9, ¶ 1.] Defendant is the biological mother of two minor
children. [Doc. 9, ¶ 2.] Child 1 was born in 2013, in
Roswell, Georgia, [Doc. 1-4], and Child 2 was born in 2014,
in Anderson, South Carolina [Doc. 1-5].
and her husband, Navarrete, who is also a Mexican national,
were living in the United States unlawfully. [Doc. 9, ¶
4.] On September 9, 2014, Defendant and Navarrete were
arrested in South Carolina and charged in federal court with
conspiracy to traffic methamphetamines and trafficking
methamphetamines. [Doc. 9, ¶ 7.] Both Defendant and
Navarrete were convicted and sentenced to federal prison.
(See USA v. Rodriguez, et al., Criminal Case No.
2:14-00727-RMG.) As the Family Court explained:
Defendant mother pled guilty to Conspiracy to Distribute
Controlled Substance on May 6, 2016. She was committed to the
custody of the United States Bureau of Prisons for a total
term of forty-eight  months, supervised release was not
ordered since she is a deportable alien who will be deported
[Doc. 9-1 at 52, ¶ 5.]
time of her arrest, Defendant was seven months pregnant with
Child 2. [Doc. 9, ¶ 7.] Defendant gave birth to Child 2
five days after her arrest. [Doc. 9, ¶ 8.] Both of
Defendant's minor children, Child 1 and Child 2, were
immediately taken into emergency protective custody by DSS.
[Doc. 9, ¶ 7-8.] DSS placed the minor children into
foster care and initiated termination of parental rights
(“TPR”) proceedings in the Anderson County Family
Court against both parents. [Doc. 9, ¶ 12.] The Final
Order of the Family Court [Doc. 9-1 at 46-74] summarized the
facts surrounding Defendant's arrest and the removal of
Defendant's children by DSS as follows:
The Defendants were living in DeKalb County, Georgia and on
September 9, 2014, while traveling through South Carolina
were stopped by law enforcement. During the stop, over 400
grams of methamphetamines and approximately $8, 000.00 in
cash were discovered in the vehicle and the minor child
[CHILD 1's] toys. The Defendants were arrested and the
minor child [CHILD 1] was taken into emergency protective
custody. Five days later, on [DOB 2] the minor child [CHILD
2] was born and also taken into emergency protective custody
by [DSS]. Since September 9, 2014 and [DOB 2] the minor
children have remained in the care and custody of the
[Doc. 9-1 at 51.] The Family Court further noted that, upon
her arrest, Defendant “tested positive for
methamphetamines at a level of 1, 574 pg/mg where the cut off
level is 500 pg/mg” and that Child 1 “tested
positive for methamphetamines at a level over 44, 000
pg/mg.” [Doc. 9-1 at 52, ¶ 4.] Following a
five-day trial, the Family Court entered a Final Order
terminating Defendant's parental rights on September 20,
2017. [See Doc. 9-1 at 46-74.]
on October 2, 2017, Defendant filed a “Petition for
Removal to Federal Court” with this Court. [Doc. 1.]
Defendant annexed a number of exhibits to her Petition.
[Docs. 1-1 through 1-20.] Additionally, Defendant filed a
motion for leave to proceed in forma
pauperis [Doc. 2], a motion to appoint counsel [Doc.
10], and a motion for transfer of discovery [Doc. 11]. By an
Order dated January 10, 2018, this Court granted
Defendant's motion for leave to proceed in forma
pauperis, but denied her motion to appoint counsel and
motion for transfer of discovery. [Doc. 15.] On November 13,
2017, Defendant filed an “Amended Motion to Remove to
Federal Court, ” along with additional exhibits,
including the Final Order of the Family Court. [Doc. 9.]
appears to challenge the jurisdiction of the Anderson County
Family Court, arguing that, due to Defendant's status as
a foreign national, the Family Court lacked jurisdiction to
terminate her parental rights, in violation of due process
and international law. For her relief, Defendant seeks a
declaratory judgment from this Court with regard to her
rights as a parent as well as the status of the minor
children. [Doc. 9 at 1.]
to the provisions of 28 U.S.C. § 636 and Local Civil
Rule 73.02(B)(2)(e) DSC, the undersigned is authorized to
review the Complaint for relief (or, as here, a petition for
removal) and submit findings and recommendations to the
District Court. Defendant filed this action pursuant to 28
U.S.C. § 1915, the in forma pauperis statute.
This statute authorizes the District Court to dismiss a case
if it is satisfied that the action “fails to state a
claim on which relief may be granted, ” is
“frivolous or malicious, ” or “seeks
monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B).
Construction of Pro Se Pleadings
brought this action pro se, which requires the Court to
liberally construe her pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Thus, as a pro se litigant,
Defendant's pleadings are held to a less stringent
standard than formal pleadings drafted by attorneys.
Haines, 404 U.S. at 520; see also Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Even under this less stringent standard, however, the pro se
Petition for Removal is still subject to sua sponte
remand. Id. at 520-21. The mandated liberal
construction means only that if the Court can reasonably read
the pleadings to state a valid claim on which the Defendant
could prevail, it should do so. Barnett v. Hargett,
174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct a litigant's legal arguments for her. Small
v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor
should a court “conjure up questions never squarely
presented.” Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985).
and Subject Matter Jurisdiction
defendant may remove to federal district court any civil
action brought in a state court of which the district courts
of the United States have original jurisdiction. 28 U.S.C.
§ 1441(a). The general statute governing removal of
state court actions to federal court provides:
Except 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 for
the district and division embracing the place where such
action is pending. For purposes of removal under this
chapter, the citizenship of defendants sued under fictitious
names shall be disregarded.
28 U.S.C. § 1441(a). Thus, a defendant in a state court
case may remove that case to a federal district court only if
the state court action could have been originally filed in a
federal district court. The defendant seeking removal has the
burden of establishing federal court jurisdiction. Wilson
v. Republic Iron & Steel Co., 257 U.S. 92, 97
is well settled that federal courts are courts of limited
jurisdiction that possess only that power authorized by the
Constitution or federal statute. Willy v. Coastal
Corp., 503 U.S. 131, 136-37 (1992). Because federal
courts have limited jurisdiction and removal jurisdiction
raises federalism concerns, there is no presumption that the
District Court has jurisdiction and the Court must strictly
construe the removal statute. Id.; see also
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
108-9 (1941). Strict construction of the removal statute
results in any doubts about federal jurisdiction being
resolved against removal, with the case being remanded to
state court. Cheshire v. Coca-Cola Bottling Affiliated,
Inc., 758 F.Supp. 1098, 1102 (D.S.C.1990).
federal court's jurisdiction under the removal statutes
essentially amounts to an infringement upon state
sovereignty. See Shamrock, 313 U.S. at 108-09.
“Consequently, the statutory provisions regulating
removal must be strictly applied. A federal court should not
extend its jurisdiction beyond the boundaries drawn by those
provisions.” Mason v. IBM, 543 F.Supp. 444,
445 (M.D. N.C. 1982). To insure that federal courts do not
overstep constitutional bounds and delve into matters that
are purely state law, federal precedent “scrupulously
confine[s]” removal jurisdiction. Shamrock
Oil, 313 U.S. at 109. In fact, the Fourth ...