IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20077

Summary Calendar

ALBERT RICHARD,

Petitioner-Appellant

v.

JOHN DOE,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-3701

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Albert Richard, proceeding pro se, appeals the district court’s 

construction of his civil complaint as a 28 U.S.C. § 2254 habeas corpus petition 

and its dismissal without prejudice for failure to state a claim upon which 

habeas relief can be granted. Richard disputes the district court’s 

characterization of his complaint as a habeas corpus petition and argues that 

the district court had jurisdiction over his complaint pursuant to 28 U.S.C. 

§ 1331 and § 1332.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 14, 2016

Lyle W. Cayce

Clerk

 Case: 15-20077 Document: 00513423092 Page: 1 Date Filed: 03/14/2016
No. 15-20077

2

The court reviews questions of subject matter jurisdiction de novo. 

Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). 

The court may consider federal subject matter jurisdiction sua sponte, as 

“subject-matter delineations must be policed by the courts on their own 

initiative even at the highest level.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 

574, 583 (1999).

Although the district court’s construction of Richard’s complaint as a 

habeas petition was erroneous, see Preiser v. Rodriguez, 411 U.S. 475, 487 

(1973), Richard has failed to establish that the district court had subject matter 

jurisdiction over the case. Richard did not allege that his claim arose under 

the Constitution or any federal law of the United States and, therefore, his 

complaint does not provide a basis for federal question jurisdiction. See § 1331.

When the alleged basis for federal jurisdiction is diversity of parties, the 

“court must be certain that the parties are in fact diverse before proceeding to 

the merits of the case.” Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 

1258 (5th Cir. 1988). Richard’s reliance on 28 U.S.C. § 1441(b) is misplaced 

because that provision addresses the treatment of fictitious defendants in cases 

involving removal to the federal court, and Richard’s case does not involve a 

removal.

Richard’s complaint does not reflect the citizenship of the John Doe 

defendant and his complaint does not allege any facts that indicate that Doe 

has diverse citizenship. Richard failed to carry his burden of establishing the 

existence of diversity jurisdiction. See Stafford v. Mobil Oil Corp., 945 F.2d 

803, 804-06 (5th Cir. 1991).

The dismissal without prejudice of Richard’s complaint is AFFIRMED, 

but the ruling is modified to be based on the district court’s lack of subject 

matter jurisdiction. See McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000); 

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

 Case: 15-20077 Document: 00513423092 Page: 2 Date Filed: 03/14/2016