Wayne Gordon v. Lacey Langino

Case: 18-30134 Document: 00514636346 Page: 1 Date Filed: 09/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30134 FILED
Summary Calendar September 11, 2018
Lyle W. Cayce
Clerk
WAYNE GORDON,
Plaintiff-Appellant
v.
UNIDENTIFIED PARTIES, John Doe, Jane Doe, XYZ Insurance Company;
LACEY LANGINO; MANHEIM MISSISSIPPI,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-8052
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Wayne Gordon appeals the district court’s dismissal of his private civil
complaint arising out of an attempted purchase of a truck without prejudice
for lack of subject matter jurisdiction. He argues that the district court erred
in dismissing his complaint for lack of jurisdiction because it had federal
question jurisdiction over his claims raised under 42 U.S.C. §§ 1983 and 1985.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-30134 Document: 00514636346 Page: 2 Date Filed: 09/11/2018
No. 18-30134
He further contends that the district court had diversity jurisdiction because
the parties are citizens of different states and the amount in controversy
exceeds $75,000; he maintains that the district court failed to consider his
allegation that he suffered damages because the defendants’ actions prevented
him from starting a business. Further, he contends that 28 U.S.C. § 1915 does
not apply to nonprisoners.
“The district court must dismiss [an] action if it finds that it lacks subject
matter jurisdiction.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757,
762 (5th Cir. 2011) (citing FED. R. CIV. P. 12(h)(3)). A district court’s dismissal
for lack of subject matter jurisdiction is reviewed de novo. Wolcott, 635 F.3d at
762.
Gordon has not identified any error in the district court’s determination
that he may not raise a claim against the defendants under §§ 1983 and 1985
because they are not state actors. Thus, he has abandoned the issue. See
Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Nonetheless, the district court did not err in finding that the defendants
were not state actors. See Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.
2004). Gordon did not demonstrate that the defendants’ actions allegedly
violating his constitutional rights were “fairly attributable to the State.” See
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982).
Moreover, the district court did not err in holding that it did not have
diversity jurisdiction under § 1332(a)(1). See Wolcott, 635 F.3d at 762. Gordon
alleged that he suffered damages of $5,900, the amount that he gave to an
individual to purchase a truck from the defendants; he also made vague
allegations of pain and suffering. Gordon’s vague and conclusional allegations
of loss of income are insufficient to establish that the amount in controversy
exceeded the $75,000 jurisdictional requirement.
2
Case: 18-30134 Document: 00514636346 Page: 3 Date Filed: 09/11/2018
No. 18-30134
Finally, Gordon has not shown that the district court erred in relying on
28 U.S.C. § 1915. See Newsome v. EEOC, 301 F.3d 227, 230, 233 (5th Cir.
2002); Baugh v. Taylor, 117 F.3d 197, 199-200 (5th Cir. 1997).
Gordon’s appeal has no arguable merit and is DISMISSED as frivolous.
See 5TH CIR. R. 42.2.
3