* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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. 

### 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-matterjurisdiction, ofhissuit seeking $2,246.00and 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 ofjudicial power, and that have been entrusted to them by

. . . Congress.” Sarmiento v. Texas Bd. ofVeterinary Med. Examiners United States Court of Appeals

Fifth Circuit 

### F I L E D October 24, 2007 Charles R. Fulbruge III ClerkNo. 07-40181

2 by and through Avery, 939 F.2d 1242, 1245 (5th Cir. 1991). Subject-matter jurisdiction exists ifa suit arises under the Constitution, laws, or treaties ofthe United States or arises between parties ofdiverse citizenship. A rbaugh 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. G assie v. SMH Swiss Corp. , 165 F.3d 23 (5th Cir. 1998). The complaint contains no allegation that Mitchel l 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 F ED
. R. C IV
. 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 C IR
. 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 o f 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; MOT ION DENIED; SANCTION WARNING ISSUED.