* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50935

Summary Calendar

RONNIE F. MANES, Jr.,

Plaintiff-Appellant,

VERSUS

City of Shavano Park Police Dep’t, et al.,

Defendants-Appellees.

Appeal from the United States District Court

For the Western District of Texas

(SA-95-CV-1155)

July 17, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ronnie F. Manes, Jr., filed suit pro se against the City of

Shavano Park Police Department, Police Captain Orlando Rivera

Torres, Patrolman P. Mendez, Bexar County Sheriff’s Office, Deputy

Sabino Gutierrez, Deputy R. Vijil, the San Antonio Police

Department, John Does 1-10, and Jane Does 1-10, alleging violations

of 42 U.S.C. § 1983, 1985, and 1988 under the Fourth, Fifth, and
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Fourteenth Amendments. The defendants were sued in their

individual as well as their respective official capacities.

Manes alleged that on September 26, 1995, he was arrested

without a warrant and his property illegally searched and seized

while driving in the City of Shavano Park, County of Bexar. 

On November 21, 1995, the district court issued its standard

“Order for Scheduling Recommendations” requiring Manes to submit a

proposed scheduling order. On December 8, 1995, Manes filed a

“Notice of Status by Affidavit/Judicial Notice.” The district

court, sua sponte, dismissed the complaint without prejudice for

lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.

12(h)(3), finding that Manes’ affidavit “clearly [indicated] an

intent not to be subject to the rules and laws which govern this

Court.” Manes filed a timely notice of appeal.

Discussion

Manes argues that the district court abused its discretion in

dismissing the action without discovery or a hearing for lack of

subject matter jurisdiction, because he established a “prima facie”

case of a civil rights violation. He argues that the court

erroneously relied on the affidavit he filed in determining that

the court lacked jurisdiction. 

This court reviews de novo a dismissal for want of subject

matter jurisdiction. Hobbs v. Hawkins, 968 F.2d 471, 475 (5th Cir.

1992). “Because there is no presumption in favor of federal court

jurisdiction and that jurisdiction is limited, the basis for

jurisdiction must be affirmatively shown.” Kirkland Masonry, Inc.
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v. Commissioner, 614 F.2d 532, 533 (5th Cir. 1980). Manes’

complaint asserted jurisdiction through 28 U.S.C. §§ 1331 and 1342.

Federal district courts have original jurisdiction over “all civil

actions arising under the Constitution, laws, or treaties of the

United States.” 28 U.S.C. § 1331. Section 1343 is the

jurisdictional basis for civil rights cases under 42 U.S.C. §§

1983, 1985. 28 U.S.C. § 1343.

“Whether a federal court has jurisdiction to decide a case and

whether a plaintiff has a cause of action under a federal statute

are distinct inquiries that must be addressed separately.” Daigle

v. Opelousas Health Care, Inc., 774 F.2d 1344, 1346 (5th Cir.

1985)(footnote omitted). If the plaintiff’s well-pleaded complaint

is drawn to seek recovery under a federal statute, then the

district court has subject-matter jurisdiction. Id. at 1348.

To obtain relief under § 1983 a plaintiff must prove that he

was deprived of a right under the Constitution or laws of the

United States and that the person depriving him of that right acted

under color of state law. Resident Council of Allen Parkway

Village v. U.S. Dep’t of Housing & Urban Dev., 980 F.2d 1043, 1050

(5th cir.), cert. denied, 114 S.Ct. 75 (1993). Individuals are

acting under color of state law “only when it can be said that the

State is responsible for the specific conduct of which the

plaintiff complains.” Daigle, 774 F.2d at 1349 (internal

quotations and citation omitted).

A court may dismiss for lack of subject matter jurisdiction on

any of three grounds: (1) the complaint alone; (2) the complaint
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supplemented by undisputed facts in the record; or (3) the

complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts. Williamson v. Tucker, 645 F.2d 404,

413 (5th Cir.), cert. denied, 454 U.S. 897 (1981). Here, the

district court sua sponte dismissed the action pursuant to

Fed.R.Civ.P. 12(h)(3), after considering Manes’ affidavit. The

district court found that the affidavit expressed Manes’ clear

“intent not to be subject to the rules and laws which govern this

Court.” The court determined that if Manes “does not recognize

the laws of the United States and Federal Rules of Civil Procedure

to which this Court is bound, then the Court has no jurisdiction to

determine Plaintiff’s claims and the case may be dismissed.”

Manes alleged violations of his Fourth, Fifth, and Fourteenth

Amendment rights by persons acting under color of law when he was

arrested while driving in Bexar County. Manes’ district court

pleadings are drawn to seek recovery under § 1983, which prohibits

the deprivation of Constitutional rights by persons acting under

color of any state law. Manes’ affidavit did not divest the

district court of jurisdiction. Although disrespectful, the

affidavit does not clearly demonstrate contumacious conduct or a

“clear record of delay” sufficient to warrant dismissal without

consideration of other sanctions. See Price McGlathery, 792 F.2d

472, 474 (5th Cir. 1986). Therefore, the district court erred by

dismissing Manes’ action for lack of subject matter jurisdiction.

Accordingly, we VACATE and REMAND the district court’s

dismissal of Manes’ complaint.
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