Barry Thomas, Jr. v. Commonwealth of Virginia, No. 11-1084 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1084 BARRY NELSON THOMAS, JR., Plaintiff - Appellant, v. COMMONWEALTH OF VIRGINIA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, District Judge. (3:10-cv-00897-HEH) Submitted: June 30, 2011 Decided: July 5, 2011 Before WILKINSON, DUNCAN, and WYNN, Circuit Judges. Affirmed in part and dismissed in part by unpublished per curiam opinion. Barry Nelson Thomas, Jr., Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Barry Nelson Thomas, Jr., appeals the district court s order dismissing claim, pursuant remanding his his to civil 28 traffic complaint U.S.C. court for failure to § 1915(e)(2)(B)(ii) proceedings to state a (2006), and court. We state affirm in part, and dismiss in part for lack of jurisdiction. We first constitutionality reject of Thomas challenge § 1915(e)(2)(B)(ii). See to the generally Vanderberg v. Donaldson, 259 F.3d 1321, 1232-24 (11th Cir. 2001) (holding that Protection § 1915(e)(2)(B)(ii) Clause because it does is not violate rationally the related Equal to the government s legitimate interests in deterring meritless claims and conserving judicial resources ). Accordingly, we affirm the district court s order to the extent that it dismissed Thomas complaint, which was filed in forma pauperis, for failure to state a claim. In the same order, the district court found it lacked jurisdiction over the Virginia traffic court case that Thomas attempted (2006), to and remove remanded to federal those court, proceedings see 28 U.S.C. § 1441 to the state court. Because the district court remanded the case on grounds provided for in 28 U.S.C. § 1447(c) (2006) (defects in removal procedure or lack of subject matter jurisdiction), the remand order is not appealable under 28 U.S.C. § 1447(d) 2 (2006). We therefore dismiss the jurisdiction. appeal See in 28 part for lack U.S.C. § 1447(c), of subject (d); matter Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 196 (4th Cir. 2008). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 3
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