37 F. 3d 1503 - Headd v. Headd

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.