     Case: 15-20077      Document: 00513423092         Page: 1    Date Filed: 03/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-20077                                   FILED
                                  Summary Calendar                           March 14, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-20077     Document: 00513423092     Page: 2   Date Filed: 03/14/2016


                                  No. 15-20077

      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).

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