Tcif Reo Cit, LLC v. PATRICIA R. GRAY; T. BARRY GRAY; ALL OCCUPANTS OF 141 7TH AVENUE T. Barry Gray

BLD-311 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2966
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TCIF REO CIT, LLC
v.
PATRICIA R. GRAY;
T. BARRY GRAY;
ALL OCCUPANTS OF 141 7TH AVENUE
T. Barry Gray,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-cv-02766)
District Judge: Honorable Edmund V. Ludwig
____________________________________
Submitted for Possible Dismissal due to a Jurisdictional Defect or Pursuant to 28 U.S.C. §
1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 11, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Opinion filed September 25, 2009)
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OPINION
_________
PER CURIAM
T. Barry Gray appeals the District Court’s order denying his motion to proceed in

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forma pauperis and remanding his civil action to the Court of Common Pleas of Delaware
County. We will affirm in part, reverse in part, and remand the matter.
In June 2008, Gray filed a motion to proceed in forma pauperis with a caption
listing himself as a defendant and TCIF REO CIT, LLC as plaintiff. He did not describe
any claims he wished to bring or explain whether he was attempting to remove an action
from state court. The District Court denied Gray’s motion to proceed in forma pauperis
and dismissed the action for lack of subject-matter jurisdiction. On appeal, we vacated
the District Court’s order and remanded the matter for the District Court to determine
whether Gray was financially eligible to proceed in forma pauperis and to give Gray an
opportunity to state the legal and factual basis for the action.
On remand, the District Court directed Gray to provide a statement of the basis for
federal jurisdiction. Gray argued that the District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1332, 1367, 1441(a), 1441(b), 1443, and 1446 and that the action could be
removed to the District Court under §§ 1332, 1441(a), 1441(b), 1441(c), 1443, and 1446.
He explained that the action was a ejectment civil suit in which Appellee alleged that
Gray did not have the right to possess a piece of real property; Gray argued that removal
under § 1443 was justified because his Fourteenth Amendment rights were being
violated.
After describing Gray’s prior attempts to challenge state foreclosure proceedings,
the District Court concluded that it lacked jurisdiction over the removed action under the

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The Rooker-Feldman doctrine deprives a District Court of jurisdiction to review,1
directly or indirectly, a state court adjudication. See D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923).
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doctrine of Rooker-Feldman and that abstention was appropriate under Younger v.1
Harris, 401 U.S. 37 (1971). The District Court remanded the matter to the Court of
Common Pleas of Delaware County, and Gray filed a timely notice of appeal.
Denial of motion to proceed in forma pauperis
We first address the District Court’s denial of Gray’s motion to proceed in forma
pauperis. The District Court denied the motion on the grounds that there was no basis
upon which Gray could obtain relief. We review the denial of a motion to proceed in
forma pauperis for abuse of discretion. Adkins v. E.I. DuPont de Nemours & Co., 335
U.S. 331, 337 (1948); Bullock v. Suomela, 710 F.2d 102, 103 (3d Cir. 1983). However,
if the application is complete, the District Court should only consider whether the
applicant is economically eligible to proceed in forma pauperis. Sinwell v. Shapp, 536
F.2d 15, 19 (3d Cir. 1976). It is only after leave to proceed in forma pauperis has been
granted that the analysis under 28 U.S.C. § 1915(e)(2)(B) is undertaken and a complaint
may be dismissed as frivolous. See Deutsch v. United States, 67 F.3d 1080, 1085 n.5 (3d
Cir. 1995); Roman v. Jeffes, 904 F.3d 192, 194 n.1 (3d Cir. 1990). Thus, we again
conclude that the District Court abused its discretion in denying the motion to proceed in
forma pauperis on the grounds that Gray was not entitled to relief in federal court.
In his motion to proceed in forma pauperis filed in the District Court, Gray

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indicated that his income was approximately $741 per month and he was unable to meet
his obligations for food, utilities, and medical needs. We believe that Gray is entitled to
proceed in forma pauperis and will reverse the District Court’s order to the extent that it
denied Gray’s motion to proceed in forma pauperis. We will remand the matter to the
District Court for it to enter an order granting Gray’s motion to proceed in forma
pauperis.
Remand to the state court
An order remanding a case to the state court from which it was removed is
generally not appealable. 28 U.S.C. § 1447(d). One exception is when the removal is
based on 28 U.S.C. § 1443. Because Gray invoked § 1443, we have jurisdiction to review
the District Court’s remand order to the extent that it denied removal pursuant to § 1443.
Section 1443(1) provides that an action may be removed if it is “[a]gainst any
person who is denied or cannot enforce in the courts of such State a right under any law
providing for the equal civil rights of citizens of the United States, or of all persons
within the jurisdiction thereof.” We have held that the civil rights removal statute is a
narrow exception to the rule that state court actions may be removed to federal district
court only if federal jurisdiction is evident on the face of plaintiff’s well-pleaded
complaint. See Davis v. Glanton, 107 F.3d 1044 (3d Cir. 1997). The Supreme Court has
articulated the precise circumstances required to sustain removal under § 1443(1),
clarifying that removal requires satisfaction of a two-prong test: a state court defendant

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must demonstrate both (1) that he is being deprived of rights guaranteed by a federal law
“providing for . . . equal civil rights; and (2) that he is “denied or cannot enforce that right
in the courts” of the state. State of Georgia v. Rachel, 384 U.S. 780, 788 (1966).
In the District Court and on appeal, Gray argues only that his Fourteenth
Amendment rights have been violated. This conclusory allegation is insufficient to
support removal under § 1443. Because we find § 1443 inapplicable, Gray is not entitled
to any further review of the District Court’s order of removal.
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm
the District Court’s order as to the denial of removal, summarily reverse the District
Court’s order as to its denial of the in forma pauperis motion, and remand the matter for
the District Court to enter an order granting Gray’s motion to proceed in forma pauperis.
See Third Circuit I.O.P. 10.6.

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