4:26-cv-00070•HOPER v. DESANTIS et al
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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. Case 4:26-cv-00070-RH-MAF Document 3 Filed 02/11/26 Page 1 of 4
Page 2 of 4 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 Case No. 4:26cv70-RH-MAF Case 4:26-cv-00070-RH-MAF Document 3 Filed 02/11/26 Page 2 of 4
Page 3 of 4 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 Case No. 4:26cv70-RH-MAF Case 4:26-cv-00070-RH-MAF Document 3 Filed 02/11/26 Page 3 of 4
Page 4 of 4 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. Case No. 4:26cv70-RH-MAF Case 4:26-cv-00070-RH-MAF Document 3 Filed 02/11/26 Page 4 of 4
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