Stump v. Potts , 322 F. App'x 379 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 17, 2009
No. 08-20347
Summary Calendar Charles R. Fulbruge III
Clerk
TERRY L STUMP
Plaintiff-Appellee
v.
PATRICIA POTTS
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-MC-208
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Patricia Potts has filed a motion to proceed in forma pauperis (“IFP”) in
appealing the district court’s denial of her requests to proceed IFP in the district
court, for appointment of counsel, and for reconsideration of her request for
removal. She is also appealing the district court’s orders striking her pleadings.
Potts sought permission to remove a state court eviction action filed against her
to federal district court. Potts argues that her landlord, Terry Stump, racially
discriminated against her and violated her rights under the Fair Housing Act
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-20347
and the Americans with Disabilities Act. She contends that Stump’s motive for
doing so was to impede her ability to litigate claims against the State of Texas.
A movant seeking leave to proceed IFP on appeal must show that she is
a pauper and that the appeal is taken in good faith, i.e., the appeal presents
nonfrivolous issues. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Potts has shown that she is economically eligible to proceed IFP. Adkins v. E.I.
Du Pont de Nemours & Co., 335 U.S. 331, 339 (1948).
However, Potts has not shown that she can present a nonfrivolous issue
on appeal. A civil action filed in state court may be removed to a federal district
court that has original jurisdiction founded on a claim arising under the
Constitution or laws of the United States. 28 U.S.C. § 1441(b). However, a
federal court has original or removal jurisdiction only “if the federal question
appears on the face of the plaintiff’s well-pleaded complaint and there is
generally no federal jurisdiction if the plaintiff pleads only a state law cause of
action.” MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir. 2002). It is not
sufficient for the federal question to be raised in the answer or in the petition for
removal. Id.
The complaint filed in the state court was a simple suit to evict arising
under state law. See T EX. P ROP. C ODE A NN. § 24.0051. The complaint provided
no basis for federal question jurisdiction. The fact that Potts brought up possible
federal question claims in her answer and counterclaim cannot be considered in
determining the existence of removal jurisdiction. MSOF Corp., 295 F.3d at 490.
Therefore, the district court lacked jurisdiction to allow the removal of the
action. In light of the lack of federal jurisdiction, Potts can not raise any
nonfrivolous issues arising out of this case. See Carson, 689 F.2d at 586. The
appeal is therefore dismissed. See 5 TH C IR. R. 42.2.
Potts is warned that any further filing of repetitious or frivolous appeals
may result in the imposition of sanctions against her. These sanctions may
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No. 08-20347
include dismissal, monetary sanctions, and restrictions on her ability to file
pleadings in this court and any court subject to this court’s jurisdiction.
Potts’s motions for appointment of counsel, for the issuance of a writ of
mandamus, and for habeas corpus relief are all denied as moot.
APPEAL DISMISSED; ALL OUTSTANDING MOTIONS ARE DENIED;
SANCTION WARNING ISSUED.
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