East Baton Rouge Parish Sch Bd v. Kelvin Wells , 467 F. App'x 294 ( 2012 )


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  •      Case: 11-30725     Document: 00511830628         Page: 1     Date Filed: 04/23/2012
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 23, 2012
    No. 11-30725
    Summary Calendar                        Lyle W. Cayce
    Clerk
    EAST BATON ROUGE PARISH SCHOOL BOARD,
    Plaintiff-Appellee
    v.
    KELVIN WELLS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Middle District of Louisiana
    USDC No. 3:11-CV-333
    Before WIENER, STEWART, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Defendant-Appellant Kelvin Wells appeals the district court’s order
    remanding to the state court a petition by the East Baton Rouge Parish School
    Board (Board)) seeking to enjoin Wells from coming within 1000 feet of the
    Magnolia Woods Elementary School and forbidding him from communicating
    with specific school officials during the duration of his children’s enrollment at
    the school.     The district court determined that it lacked subject matter
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-30725    Document: 00511830628      Page: 2   Date Filed: 04/23/2012
    No. 11-30725
    jurisdiction over the case because the petition did not raise a federal question
    and the citizenship of the parties was not diverse.
    In seeking a remand, Wells argues that the federal court should exercise
    jurisdiction over this case because there is ongoing racial discrimination against
    African-Americans in the East Baton Rouge Parish school system, that is not
    being addressed by the state courts. He complains specifically that he, his
    family, and other African-Americans are retaliated against by the white
    principal and teachers at the Magnolia Woods Elementary School. Although his
    pleadings reflect that his address is in Baton Rouge, Louisiana, Wells asserts for
    the first time on appeal that he has a home of record in San Antonio, Texas.
    A remand order of a case previously removed from state court is not
    reviewable on appeal if the district court’s remand is based on a lack of subject
    matter jurisdiction or because of a defect in the removal procedure made within
    30 days of the removal. See 
    28 U.S.C. § 1447
    (c), (d); Quackenbush v. Allstate Ins.
    Co., 
    517 U.S. 706
    , 711-12 (1996); Certain Underwriters at Lloyds, London, and
    Other Insurers Subscribing to Reinsurance Agreements F96/2922 and
    F97/2992/00 v. Warrantech Corp, et al, 
    461 F.3d 568
    , 571-72 (5th Cir. 2006).
    The district court determined that there was a lack of subject matter
    jurisdiction and a defect in the removal procedure because the Board’s petition
    sought injunctive relief under state law only and the record did not reflect the
    existence of diversity of citizenship between the parties. As there is a plausible
    indication that the district court remanded this action to state court for lack of
    subject matter jurisdiction or a defect in the removal procedure noted within 30
    days of the removal, § 1447(d) defeats appellate jurisdiction under 
    28 U.S.C. § 1291
    . See Heaton v. Monogram Credit Card Bank of Ga., 
    231 F.3d 994
    , 997 (5th
    Cir.2000). The appeal is dismissed for lack of appellate jurisdiction. 
    Id. at 1000
    .
    Wells has filed more that 30 appeals in this court since 2001, none of
    which have been successful. Many have been dismissed pursuant to 5th Cir. R.
    42.3 for want of prosecution, several for lack of jurisdiction, and others as
    2
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    No. 11-30725
    frivolous. Pro se litigants do not have “unrestrained license to pursue totally
    frivolous appeals.” Clark v. Green, 
    814 F.2d 221
    , 223 (5th Cir. 1987). We
    caution Wells that future frivolous, repetitive, or otherwise abusive filings may
    result in the imposition of sanctions, including dismissal, monetary sanctions,
    and restrictions on his ability to file pleadings in this court or any court subject
    to this court’s jurisdiction. Wells is instructed to review any pending matters
    and move to dismiss any that are frivolous.
    APPEAL DISMISSED; SANCTION WARNING ISSUED.
    3
    

Document Info

Docket Number: 11-30725

Citation Numbers: 467 F. App'x 294

Judges: Haynes, Per Curiam, Stewart, Wiener

Filed Date: 4/23/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023