HOPER v. DESANTIS et al

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
MARCUS HOPER, SR.,
Plaintiff,
vs. 	Case No. 4:26cv70-RH-MAF
RON DESANTIS, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
Plaintiff, who is pro se, filed a notice of removal, ECF No. 1, on
February 9, 2026. However, there are two problems which prevent this
case from moving forward.
First, Plaintiff did not pay the filing fee for this case, nor did he submit
a motion requesting leave to proceed in forma pauperis. The Local Rules
of this Court state that a Plaintiff who files “a civil case must simultaneously
either pay any fee required under 28 U.S.C. § 1914 or move for leave to
proceed in forma pauperis under 28 U.S.C. § 1915.” N.D. Fla. Loc. R. 5.3.
Plaintiff did not comply with that Rule.
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Although Plaintiff could subsequently pay the filing fee, there is no
need to do so because this case is not properly removable. Plaintiff
contends that this “Court has original jurisdiction under 28 U.S.C. § 1331
because Plaintiff’s claims arise under the Constitution and laws of the
United States.” ECF No. 1 at 1. However, Plaintiff also acknowledges that
he seeks to remove a pending case from state court, that “Plaintiff
commenced” in the Second Judicial Circuit. 	Id. 	Documents attached to the
notice of removal indicate Plaintiff initiated case number 2025CC0041770
and filed an amended complaint on September 19, 2025. ECF No. 1-1 at
1.
Plaintiff cannot remove a case to federal court which he initiated in
state court. The statute governing removal, 28 U.S.C. § 1441, 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) (emphasis added). By clear and unambiguous
language, a defendant is permitted to remove an action to federal court.
“No right exists in favor of a person who, as plaintiff, has filed an action in
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the state court, to cause the removal of such action to a federal court.” In
re Walker, 375 F.2d 678, 687 (9th Cir. 1967). Such a rule is well
established. 	See, e.g.,Chicago, Rock Island & Pacific Railroad v. Stude,
346 U.S. 574, 580, 74 S.Ct. 290, 295, 98 L.Ed. 317 (1954); Coastal Air
Service, Inc. v. Tarco Aviation Service, Inc., 301 F.Supp. 586, 588 (S.D.
Ga. 1969); Union Const. Co. v. Dillingham Corp., 334 F.Supp. 502, 503
(S.D. Tex. 1971); Geiger v. Arctco Enterprises, Inc., 910 F.Supp. 130, 131
(S.D. N.Y. 1996). Plaintiff had the choice initially of whether to file his case
in federal or state court. Having decided to proceed in state court, Plaintiff
cannot now switch to the federal forum. 	Thus, removal is improper under
§ 1441 and this case should be summarily dismissed.
RECOMMENDATION
Accordingly, it is respectfully RECOMMENDED that this case be
DISMISSED as Plaintiff's pending case must continue in the Second
Judicial Circuit of the State of Florida, in and for Leon County, Florida, if
Plaintiff desires to continue his case.
IN CHAMBERS at Tallahassee, Florida, on February 11, 2026.
S/ 	Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
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NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific written
objections to these proposed findings and recommendations. 	Fed. R.
Civ. P. 72(b)(2). A copy of the objections shall be served upon all other
parties. 	A party may respond to another party’s objections within
fourteen (14) days after being served with a copy thereof. Fed. R. Civ.
P. 72(b)(2). 	Any different deadline that may appear on the electronic
docket is for the Court’s internal use only and does not control. 	If a
party 	fails 	to 	object 	to 	the 	Magistrate 	Judge’s 	findings 	or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge on
appeal the District Court’s order based on the unobjected-to factual and
legal conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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