Raymond Eugene Headd v. Mary Lou Headd

37 F.3d 1503, 1994 U.S. App. LEXIS 35955, 1994 WL 558185

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 13, 1994
• Docket: 94-1001
• Status: Published

Opinion

37 F.3d 1503
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Raymond Eugene HEADD, Appellant.
v.
Mary Lou HEADD, Appellee.

No. 94-1001.

United States Court of Appeals,

Eighth Circuit.
Submitted: July 8, 1994.
Filed: October 13, 1994.

Appeal from the United States District Court for the Eastern District of Missouri.

Before MAGILL, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

Raymond Eugene Headd, a Missouri inmate, appeals the district court's1 dismissal of his petition to remove a state court action pursuant to 28 U.S.C. Sec. 1443(1). We affirm.

Headd, respondent in a Missouri dissolution action, filed a petition to remove the case to federal district court, alleging that a Farmington Correctional Center (FCC) corrections officer served him with the summons in violation of Missouri law and he could not enforce his rights in the state court. He requested in forma pauperis status pursuant to 28 U.S.C. Sec. 1915. The district court dismissed the petition as frivolous pursuant to 28 U.S.C. Sec. 1915(d).

Dismissal under section 1915(d) is authorized if an action is based on "an indisputably meritless legal theory." Cf. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). The district court correctly determined that Headd's assertion of jurisdiction lacked legal merit: Headd did not identify a law under which he was being denied "specific civil rights stated in terms of racial equality," as required by section 1443(1) and Georgia v. Rachel, 384 U.S. 780, 792 (1966). Because the district court dismissed the removal petition pursuant to section 1915(d), remand under 28 U.S.C. Sec. 1447(c) was unnecessary.

Headd's argument that the district court abused its discretion in not construing his pro se petition as an original civil rights action is without merit. See Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989) (standard of review). Accordingly, we affirm the district court's dismissal.

1 The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri, adopting the report and recommendation of the Honorable Catherine D. Perry, United States Magistrate Judge for the Eastern District of Missouri