                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 16, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60558
                         Summary Calendar



THOMAS J. AMERSON,

                                    Plaintiff-Appellant,

versus

AMERICAN NATIONAL INSURANCE COMPANY;
L.C. ROBERTS, JR.; DEAN CLAY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                     USDC No. 4:04-CV-66-LN
                      --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Thomas Amerson, Mississippi prisoner # 32237, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint with

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

to state a claim because the defendants were not state actors.

Amerson contends that he was unaware of which civil complaint

form to use when filing against someone other than a prison

official until after he had received the district court’s opinion

and final judgment, and he argues that the district court should

     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-60558
                                 -2-

have allowed him the opportunity to amend his complaint before

dismissal.

     The district court correctly determined that Amerson had

alleged no facts which established that the defendants had acted

under color of state law.    Rosborough v. Management & Training

Corp., 350 F.3d 459, 460 (5th Cir. 2003).    However, in addition

to his allegations of constitutional violations under 42 U.S.C.

§ 1983,   Amerson alleged the state law claims of fraud and

conversion.   The district courts have original jurisdiction

of all civil actions where the matter in controversy exceeds

$75,000 and the action is between citizens of different states.

28 U.S.C. § 1332.    The district court did not consider whether

diversity jurisdiction might exist.    Amerson alleged damages

exceeding $75,000.    Amerson is a resident of Mississippi.

Amerson alleged that the defendants’ addresses were all in

Galveston, Texas.    From the face of the complaint, it would

appear that the defendants are all residents of Texas, and thus,

the district court would have diversity jurisdiction.    Based on

the allegations of the amount in controversy and the stated

addresses of the defendants in Amerson’s complaint, the district

court erred in dismissing Amerson’s complaint for failure to

state a claim under 42 U.S.C. § 1983 without considering whether

the court had diversity jurisdiction over his civil state law

claims.   The judgment of the district court is REVERSED and this

case is REMANDED to afford Amerson the opportunity to demonstrate
                          No. 04-60558
                               -3-

whether the district court has diversity jurisdiction.     See

Reeves v. City of Jackson, Miss., 532 F.2d 491, 493-96 (5th Cir.

1976)(reversing and remanding dismissal of 42 U.S.C. § 1983 case

for failure to state a claim in part because elements of

diversity were met).

     REVERSED AND REMANDED.
