Rеversed by published opinion. Judge WYNN wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON concurred.
OPINION
Following Defendants’ removal to federal district court of an action filed against them in state court by Plaintiff, the district court remanded the case to state сourt, in part based on Plaintiffs status as a “three-strikes” prisoner due to his frequent legal filings. Because we find that the district court lacked a statutory or legal basis to remand Plaintiffs action to state court, we reverse the order below and reinstate Plaintiffs complaint for further proceedings.
I.
On December 22, 2008, Plaintiff Billy Lisenby, Jr., an inmate in the Ridgeland Correctional Institution in South Carolina, filed a complaint in state court against Defendants, members of the Town of Chesterfield Police Department. Plaintiff сontended that Defendants had engaged in a campaign of harassment against him and asserted several claims against them, including violations of his federal constitutional rights. 1 At the same time he filed his complaint, Plaintiff also filed a motion to proceed informa pauperis.
Based on the federal claims and pursuant to 28 U.S.C. §§ 1331 and 1441, Defendants removed the action to federal district court in South Carolina and paid the required filing fee in full. Shortly thereafter, on March 17, 2009, a magistrate judge issued a report in which she sua sponte raised the issue of remand and ultimately recommended remanding the action to state court. After considering Defendants’ objections, the district court entered an order on February 26, 2010 that adopted the magistrate’s recommendations and remandеd the matter to state court. Plaintiff did not object either to the removal of the action to federal court, or to its remand to state court.
In the district court’s order and opinion adopting the magistrate’s report and recommendation, the analysis supporting remanding this case to state court was as follows: (1) based on prior claims filed and dismissed as frivolous in federal court, Plaintiff qualified as a “three-strikes” prisoner under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915; (2) section 1915(g) of the PLRA provides that а three-strikes prisoner “may not bring a civil action” in federal court while proceeding in forma pauperis “unless the prisoner is under imminent danger of serious physical injury,” resulting in a requirement that the prisoner must pay the full filing fee prior to commencing a suit; (3) as such, becаuse Plaintiff did not pay. the filing fee, Plaintiffs current cause of action was barred in federal court.
The district court further found that dismissal of Plaintiffs complaint would not be appropriate, as it would allow Defendants to end potentially meritorious litigation through a procedural maneuver. Moreover, because the district court believed allowing Plaintiff to remain in federal court would frustrate the legislative pur
II.
Defendants present a single issue for this Court’s review: whether the district court erred by remanding Plaintiffs action to state court, thereby denying Defendants their right to remove to federal court а complaint that included federal claims.
A.
At the outset, Defendants must overcome the rule that an appellate court generally lacks jurisdiction to review an order remanding a case to state court.
See
28 U.S.C. § 1447(d) (“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.”). We have previously noted that “[t]his limitation on review applies even if the remand order is ‘manifestly, inarguably erroneous.’ ”
In re Blackwater Sec. Consulting, LLC,
Nevertheless, this Court has also recognized three exceptions to the general rule stated in section 1447(d) and described situations in which review is pеrmissible: (1) when the remand order is not based on 28 U.S.C. § 1447(c), which requires remand when the district court determines it lacks subject matter jurisdiction; (2) when the review is of a collateral decision that is severable from the remand order; or (3) when the remand order exceeds the scope of the district court’s authority. Id. at 583 (citations omitted).
The first and third exceptions are at issue in this case. Defendants argue that because their notice of removal was timely and properly filed, the district court had subject matter jurisdiction ovеr the case. Moreover, Defendants assert that the order remanding the action to state court exceeded the authority of the district court, as Plaintiffs complaint on its face raised federal claims, and there was no statutory or legal basis for the removal but instead only the district court’s own belief that it was “justifiable.”
See id.
at 591 (“A district court exceeds its statutory authority when it remands a case ‘on grounds that seem justifiable to the court but which are not recognized by the controlling statute.’ ” (quoting and citing
Thermtron Prods., Inc. v. Hermansdorfer,
A review of the order itself, as well as the underlying report and recommendation from the magistrate, undermines Plaintiffs position that the district court’s order should be “colorably characterized” as based on subject matter jurisdiction. The district court never mentions subject matter jurisdiction or any procedural defect in the removal process. Rather, the district court’s analysis reflects an attempt to craft a solution that would be “fair” to the parties while addressing the “thorny issue” presented by this situation and seemingly closing a perceived loophole in the PLRA. J.A. 78. 2
The district court thoroughly considered several different possible outcomes, including allowing the case to proceed in federal court, dismissing the case altogеther, and remanding to state court. Ultimately, the district court agreed with the magistrate
Plaintiffs complaint includes federal claims; as such, on the face of the complaint and pursuant to 28 U.S.C. §§ 1331 and 1441, the district court was vested with subject matter jurisdiction to consider the case. Further, the district court lacked a legal or statutory basis to remand the action to state court.
See Thermtron,
B.
With that threshold question resolved, we turn to the propriety of thе remand order itself. Specifically, we consider Defendant’s argument that “[n]othing in the PLRA, the [in forma pauperis ] statute, or the removal statutes defeats [the district court’s subject matter] jurisdiction, and therefore, the district court had no authority to remand this action to statе court.” Appellants’ Br. at 9.
The Supreme Court has stated that “[a]s a general matter, defendants may remove to the appropriate federal district court ‘any civil action brought in a State court of which the district courts of the United Statеs have original jurisdiction.’ ”
City of Chicago v. Int’l College of Surgeons,
Here, there is no dispute that Plaintiff asserted federal constitutional claims against Defendants in his complaint. As such, Defendants’ removal of the case to federal district court was appropriate. However, Plaintiff maintains that the order remanding the action to state court was likewise proper because it effectuates the legislative intent of the PLRA “to control the volume of prisoner lawsuits overburdening thе resources of the federal courts.”
Tolbert v. Stevenson,
The “three strikes” provision of the PLRA states:
(g) In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this [in forma pauperis ] section if the prisonerhas, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on thе grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). Thus, a “three strikes” prisoner is not entirely precluded from federal court, but rather, to bring a civil action
in forma pauperis
in federal court, that prisoner must either pre-pay in full all filing fees or make a showing of imminent danger of serious physical injury. We find these requirements to be procedural, not jurisdictional, in nature.
See generally Brickwood Contractors, Inc. v. Datаnet Eng’g, Inc.,
Based upon a federal question, Defendants properly and timely removed Plaintiffs action to federal district court, which is vested with the subject matter jurisdiction to hear such claims. 28 U.S.C. §§ 1331, 1441. The PLRA did not operate to strip the district court of thаt jurisdiction, nor is there any other statutory or legal authority by which the district court could properly remand the action to state court, thereby depriving Defendants of their right to have the claims heard in federal court.
See Thermtron,
Accordingly, we reverse the remand order and reinstate Plaintiffs cause of action for further proceedings in the district court below. 3
III.
In conclusion, because we find that the district court’s order was not based on a perceived lack of subject matter jurisdiction or on a procedural defect in the removal process, we conclude that the order to remand Plaintiffs complaint to state court is subject to appellate review. Upon such review, because Plaintiff аsserted federal claims against Defendants, and the PLRA is not jurisdictional in nature, we find that the district court lacked the grounds to remand this case. Accordingly, we reverse the order to remand and reinstate Plaintiffs cause of action for further proceedings before the district court.
REVERSED
Notes
. The facts underlying Plaintiff's complaint are largely irrelevant to the issue before this Court on appeal, but the allegations indicate that Plaintiff and Defendants have had an ongoing feud for several years.
. Citations to the joint appendix are abbreviated as "J.A.”
. We recognize that the district court will now again be faced with the precise dilemma it grappled with in its original order, to wit, whether Plaintiff’s cause of action may be dismissed under the PLRA or whether it must be heard on the merits. Plaintiff argues that he did not “bring” the action in federal court, and Defendants paid the filing fee upon removal, suggesting that, aside from his status as a "three strikes” prisoner, the plain language of § 1915(g) is inapplicable to the situation presented here. That question, however, is not squarely before us here, and we properly leave it for the district court to determine in the first instance.