* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40181

Conference Calendar

DOUGLAS E MITCHELL

Plaintiff-Appellant

v.

J CHARLES CLINKSCALES, DDS

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CV-682

Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Douglas E. Mitchell appeals the district court’s dismissal, for lack of

subject-matter jurisdiction, of his suit seeking $2,246.00 and nonpecuniary relief

because of Dr. Clinkscales’s alleged failure to perform oral surgery as promised.

We have reviewed de novo the district court’s reasons and judgment, the record,

and Mitchell’s brief and find no error in the district court’s judgment.

“[F]ederal courts are . . . empowered to hear only those cases that are

within the constitutional grant of judicial power, and that have been entrusted

to them by . . . Congress.” Sarmiento v. Texas Bd. of Veterinary Med. Examiners

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2007

Charles R. Fulbruge III

Clerk
No. 07-40181

2

by and through Avery, 939 F.2d 1242, 1245 (5th Cir. 1991). Subject-matter

jurisdiction exists if a suit arises under the Constitution, laws, or treaties of the

United States or arises between parties of diverse citizenship. Arbaugh v. Y&H

Corp., 126 S. Ct. 1235, 1238 (2006). The burden of pleading and proving subjectmatter jurisdiction is on the party invoking federal jurisdiction. Gassie v. SMH

Swiss Corp., 165 F.3d 23 (5th Cir. 1998).

The complaint contains no allegation that Mitchell and Clinkscales are

citizens of different states; thus, Mitchell failed to plead and establish subjectmatter jurisdiction based on the existence of complete diversity. See 28 U.S.C.

§ 1332. Additionally, although Mitchell argues that Clinkscales is liable under

42 U.S.C. § 1983, Mitchell does not allege facts demonstrating that Clinkscales

acted under color of state law; thus, Mitchell failed to plead and establish

subject-matter jurisdiction based on the existence of a federal question. See

28 U.S.C. § 1331.

The district court was required to dismiss the complaint. See FED. R. CIV.

P. 12(h)(3). Because Mitchell failed to raise an issue of arguable merit in this

court, this appeal is dismissed as frivolous. See McGrew v. Rodriguez, 47 F.3d

425 (1995); 5th CIR. R. 42.2. Mitchell’s motion for appointment of counsel is

denied. Additionally, we take notice of our decisions in Mitchell v. Bilby-Knight,

No. 95-40185 (5th Cir. May 17, 1995) (unpublished), and Mitchell v. Owens,

No. 95-40166 (5th Cir. May 18, 1995) (unpublished), which dismissed Mitchell’s

appeals as frivolous. We also notice that in the instant action Mitchell certified

to the district court that he had not previously been issued a sanction warning,

a certification revealed to be false by our decision in Bilby-Knight. Mitchell is

warned that the presentation of further frivolous actions will result in the

imposition of sanctions, including monetary penalties and restrictions on his

ability to seek relief in this court or in any court subject to our jurisdiction.

APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING

ISSUED.