                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARLEN PORTER SMITH,                             No. 16-35996

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01530-SI

 v.
                                                MEMORANDUM*
KEEFE COMMISSARY NETWORK,

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Arlen Porter Smith, an Oregon state prisoner, appeals pro se from the district

court’s judgment dismissing for lack of subject matter jurisdiction his diversity

action arising from the loss of his legal materials and intellectual property. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey, 789



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 1030, 1035 (9th Cir. 2015). We affirm.

      The district court properly dismissed Smith’s action for lack of subject

matter jurisdiction because Smith failed to allege facts sufficient to show that the

amount in controversy was satisfied. See 28 U.S.C. § 1332(a) (requirements for

diversity jurisdiction); Naffe, 789 F.3d at 1139-40 (while the amount claimed on

the face of the complaint generally controls, dismissal is warranted if it appears “to

a legal certainty that the claim is really for less than the jurisdictional amount”

(citation and internal quotation marks omitted)). We treat the dismissal of the

action for lack of subject matter jurisdiction as being without prejudice. See Kelly

v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004).

      AFFIRMED.




                                           2                                     16-35996
