### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 50261 Summary Calendar

FREDERICK COLLINS FERMIN,

Plaintiff

- Appellant

v.
PRIEST OF SAINT MARY

- MARFA, TEXAS; DIOCESE OF EL PASO, TEXAS,

Defendants

- Appellees

Appeal from the United States District Court for the Western District of Texas USDC No. 3:18

- CV

- 327

Before JOLLY, HIGGINSON, and COSTA, Circuit Judges

. GREGG COSTA, Circuit Judge : * Frederick Collins Fermin sued the Diocese of El Paso and an unnamed priest for using a crucifix during his baptism in 1925. He a lleges that the priest did so “in violation of God’s law,” c iting, among other Bible verses , the Second Commandment’s prohibiti on of idolatry

. S ee E XODUS 20:4

. The district court

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED July 24, 2019 Lyle W. Cayce Clerk Case: 19-50261 Document: 00515047328 Page: 1 Date Filed: 07/24/2019No. 19

- 50261

2 granted the Diocese’s motion to dismiss for lack of subject matter jurisdiction , and we affirm.
Fermin says the district court had both diversity and federal question jurisdiction. See 28 U.S.C. §§ 1331, 1332. But he d id not meet his burden of pleading facts in support of either. See Howery v. Allstate Ins. Co. , 243 F.3d 912, 919 (5th Cir. 2001)

. Diversity j urisdiction requires complete diversity of citizenship

— that is, neither defend ant can be a citizen of the same state as
Fermin

. Stafford v. Mobil Oil Corp. , 945 F.2d 803, 804 (5th Cir. 1991). Fermin fail s to allege state citizenships for himself or the defendants . T hat “failure adequately to allege the basis for diversity jurisdi ction mandate s dismissal.” Id. at 805. Plus, as the district court observed, by all appearances there is not complete diversity: Fermin’s signature block on his complaint lists a San Antonio address, and the Diocese is presumably an El Paso resident. Moving to federal question jurisdiction, we note that Fermin raise s a First Amendment claim. That claim arises under federal law, so it survives a challenge to subject matter jurisdiction unless it is so “completely devoid of merit as not to involve a fed eral controversy.” Steel Co. v. Citizens for a Better
Env ’t , 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. C t y

. of Oneida , 414 U.S. 661, 666 (1974)). But a First Amendment claim against a church and a priest cannot meet that low bar. T he First Amen d ment constrains state action, not private conduct. Manhattan C mty. Access Corp. v. Halleck , 139 S. Ct. 1921, 1928 (2019). Churches and priests are not state
actors. I ndeed, if the First Amendment ha d any role to play in this case , it would be to warn us against delving into a dispute about religious doctrine. See Serbian E

. Orthodox Diocese for U.S. & Canada v. Milivojevich , 426 U.S. 696, 709 (1976). We thus need not consider Fermin’s argument that the district court erred in denying his motion for default judgment. The Diocese admits that it Case: 19-50261 Document: 00515047328 Page: 2 Date Filed: 07/24/2019No. 19

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3 filed its answer two days late. But without subject matter jurisdiction, the district court could not have granted a default judgment even if one had been warranted. Mitchell v. Texas , 56 F.3d 1385 , 1995 WL 337749, at *1 (5th Cir. 1995) (per curiam)

.

* * * The district court’s judgment is AFFIRMED. Case: 19-50261 Document: 00515047328 Page: 3 Date Filed: 07/24/2019