Barrois v. Unidentified Party

Opinion

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

No. 96-31157 Conference Calendar __________________

MILDRED BARROIS, wife of and Victor Barrois,

Plaintiff-Appellant,

versus

UNIDENTIFIED PARTY; GOUX ENTERPRISES, doing business as Pontchartrain Health Care Center,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CV-3510-N - - - - - - - - - - April 15, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Mildred Barrois appeals the district court’s sua sponte

dismissal of her complaint for lack of subject-matter

jurisdiction. Barrois, a Louisiana citizen, alleged that Goux

Enterprises, which operated a nursing home in Mandeville, La.,

mistreated her since-deceased husband, Victor, while he resided

at the nursing home, and that one of Goux Enterprises’ employees

converted some of the family’s savings bonds. The district court

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-31157 -2-

did not err in holding that it lacked subject-matter jurisdiction

over Barrois’s claims. See Fed. R. Civ. P. 12(h)(3). Barrois

has not raised cognizable constitutional claims under 42 U.S.C.

§ 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), because the defendants are not

alleged to have acted under color of either state or federal law.

See Morast v. Lance, 807 F.2d 926, 930-31 (5th Cir. 1987).

Moreover, Barrois has not invoked the diversity jurisdiction of

the court because she has failed to sustain her burden of proving

that complete diversity exists. See Getty Oil Corp., Div. of

Texaco, Inc. v. Insurance Co. of North Am., 841 F.2d 1254, 1258-

59 (5th Cir. 1988); 28 U.S.C. § 1332.

Because this appeal is frivolous, it is DISMISSED. See 5th

Cir. R. 42.2.