                    Case: 11-15167         Date Filed: 07/17/2012    Page: 1 of 3

                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15167
                                        Non-Argument Calendar
                                      ________________________

                                 D.C. Docket No. 1:11-cv-23720-JAL



MATTIE LOMAX,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                 versus

THE STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllll                              Defendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (July 17, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-15167     Date Filed: 07/17/2012    Page: 2 of 3

      Mattie Lomax, proceeding pro se, appeals the district court’s dismissal of

her notice of removal of her criminal case and her attempt to initiate a § 1983

claim. Lomax asserts that the district court erred in finding that her claim, which

she contends to have filed in Florida state court, was frivolous and intended to

harass the arresting officers associated with a state battery proceeding against her.

      In her notice of removal, Lomax contended that 28 U.S.C. § 1443(1) gave

her grounds for removal to federal court. Section 1443(1) allows for removal of

“criminal prosecutions, commenced in a State court . . . [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[.]” 28 U.S.C. § 1443(1). To qualify under

§ 1443(1), Lomax “must show both that the right upon which [she] rel[ies] is a

right under any law providing for equal civil rights, and that [she is] denied or

cannot enforce that right in the courts of” Florida. Georgia v. Rachel, 384 U.S.

780, 788, 86 S. Ct. 1783, 1788 (1966) (alteration and quotations omitted). It is

clear that Lomax’s notice of removal failed to explain how she meets this

standard, especially the requirement that she be denied or unable to enforce her

rights in state court. Accordingly, there was no basis for Lomax to remove her

criminal case to federal court. In any action removed from state court, “[i]f at any

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              Case: 11-15167      Date Filed: 07/17/2012    Page: 3 of 3

time before final judgment it appears that the district court lacks subject matter

jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (emphasis added).

Thus, to the extent that Lomax removed her state criminal proceeding to district

court, the district court should have remanded that portion of her case to state

court, rather than dismissing it. Id.

      The district court construed Lomax’s notice of removal as also trying to

institute a § 1983 claim. The district court dismissed that claim as frivolous and

harassing under 28 U.S.C. § 1915(e)(2)(B). We discern no abuse of discretion in

that decision. See Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.1




      1
             Lomax’s request for oral argument is DENIED.

                                           3
