GLD-062                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                     Nos. 10-3332 & 10-3333 (Consolidated)
                                 ___________

                 BARRY P. GROVES; THERESA F. GROVES;
                    SYLVAN-WHITTLE REAL ESTATE

                                        v.

                   MASON L. WILSON; TAMESH WILSON,
                                  Mason L. Wilson, Appellant in No. 10-3332
                   ____________________________________

                   MASON L. WILSON; TAMESH WILSON,
                                Mason L. Wilson, Appellant in No. 10-3333

                                        v.

                 BARRY P. GROVES; THERESA F. GROVES;
                    SYLVAN-WHITTLE REAL ESTATE
                  ____________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                  (D.C. Civil Nos. 10-cv-00165 & 10-cv-00166)
                    District Judge: Honorable Kim R. Gibson
                   ____________________________________

      Submitted for Possible Dismissal 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
                                December 9, 2010
         Before: AMBRO, CHAGARES and NYGAARD, Circuit Judges

                           (filed: December 15, 2010 )
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant Mason L. Wilson, proceeding pro se, has appealed from an order

entered in two District Court cases dismissing his notice of removal and complaint for

lack of subject matter jurisdiction. The appeals have been consolidated for all purposes.

For the reasons that follow, we will dismiss both appeals pursuant to 28 U.S.C.

§ 1915(e)(2).

       Both of these appeals stem from two judgments entered against Mason and

Tamesh Wilson, each in the amount of $1667.54, by the Cambria County Magisterial

District Court, in connection with a landlord-tenant dispute. After the judgments were

entered and an appeal had been initiated in state court, the Wilsons filed a motion to

proceed in forma pauperis (“IFP”) and a notice of removal in the United States District

Court for the Western District of Pennsylvania. That case was docketed as Civil No. 10-

cv-00165 (W.D. Pa.). The Wilsons simultaneously filed a motion to proceed IFP and a

proposed complaint, which was docketed as Civil No. 10-cv-00166 (W.D. Pa.). In the

complaint, they alleged causes of action under 42 U.S.C. §§ 1981, 1983 & 1985.

       The District Court dismissed the notice of removal and complaint for lack of




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subject matter jurisdiction.1 The Court held that the Wilsons were improperly attempting

to use the removal mechanism to appeal a state court judgment to federal court. As

judgment had already been entered against them, the Court explained that it was too late

to initiate removal proceedings. The Court also held that it lacked subject matter over the

substance of the complaint.

       Removal from state to federal court is proper only when the district court to which

removal is sought would have original jurisdiction over the action. See 28 U.S.C. § 1441.

The Wilsons sought to remove a landlord-tenant action which had already been resolved

by the Cambria County Magisterial District Court. We agree with the District Court that

removal after the state court has decided a claim on the merits is improper and, in any

event, the District Court lacked subject matter jurisdiction over such claims. While the

Wilsons cited several federal statutes in their complaint, the facts they alleged

demonstrated an intent to re-litigate the events leading up to and following their eviction.

Their claims of intentional infliction of emotional distress and malicious prosecution are

state law claims and cannot be brought in federal court absent some basis for federal

court jurisdiction. For essentially the reasons given by the District Court, we agree that

the Wilsons’ notice of removal constituted an improper attempt to evade the state court’s

decision and that their complaint failed to allege sufficient facts to support federal subject


1
  The District Court also denied the Wilsons’ motions for leave to proceed IFP. As we
have explained previously, leave to proceed IFP is based on a showing of indigence. See
Deutsch v. United States, 67 F.3d 1080, 1085 n.5 (3d Cir. 1995). Only after such leave
has been granted should a complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B). See
id. Accordingly, as a matter of procedure, the District Court should have granted the
motions to proceed IFP and then dismissed the notice of removal and complaint.
matter jurisdiction. Based on the foregoing, we will dismiss these appeals under

28 U.S.C. § 1915(e)(2)(B).




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