Arlen Smith v. Keefe Commissary Network , 698 F. App'x 432 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARLEN PORTER SMITH, No. 16-35996
Plaintiff-Appellant, D.C. No. 2:16-cv-01530-SI
v.
MEMORANDUM*
KEEFE COMMISSARY NETWORK,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Arlen Porter Smith, an Oregon state prisoner, appeals pro se from the district
court’s judgment dismissing for lack of subject matter jurisdiction his diversity
action arising from the loss of his legal materials and intellectual property. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey, 789
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 1030, 1035 (9th Cir. 2015). We affirm.
The district court properly dismissed Smith’s action for lack of subject
matter jurisdiction because Smith failed to allege facts sufficient to show that the
amount in controversy was satisfied. See 28 U.S.C. § 1332(a) (requirements for
diversity jurisdiction); Naffe, 789 F.3d at 1139-40 (while the amount claimed on
the face of the complaint generally controls, dismissal is warranted if it appears “to
a legal certainty that the claim is really for less than the jurisdictional amount”
(citation and internal quotation marks omitted)). We treat the dismissal of the
action for lack of subject matter jurisdiction as being without prejudice. See Kelly
v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004).
AFFIRMED.
2 16-35996