     Case: 18-50558      Document: 00514867222         Page: 1    Date Filed: 03/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                      No. 18-50558                              FILED
                                                                          March 11, 2019
                                                                           Lyle W. Cayce
THOMAS TINER,                                                                   Clerk

                                                 Plaintiff-Appellant

v.

DANELLA COCKRELL, Executor; JIMMY PEACOCK, Attorney; JAMES
MCDONALD, Attorney; CYNTHIA JACKSON, CPA,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:18-CV-87


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Thomas Tiner, Texas prisoner # 706290, seeks leave to proceed in forma
pauperis (IFP) on appeal from the dismissal of his civil rights complaint for
lack of subject matter jurisdiction. The district court denied Tiner’s motion to
proceed IFP and certified pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule
of Appellate Procedure 24(a)(3)(A) that the appeal was not taken in good faith.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-50558

      By moving to proceed IFP, Tiner is challenging the district court’s
certification that the instant appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). In evaluating whether the appeal is
taken in good faith, the relevant inquiry is “whether the appeal involves legal
points arguable on their merits (and therefore not frivolous).” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).
      A district court’s dismissal for lack of subject matter jurisdiction is
reviewed de novo. Williams v. Wynne, 533 F.3d 360, 364 (5th Cir. 2008).
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred
by statute, they lack the power to adjudicate claims.” In re FEMA Trailer
Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012). Federal
question subject matter jurisdiction is granted in 28 U.S.C. § 1331 and 28
U.S.C. § 1343(a)(3), which provide district courts with original jurisdiction over
civil actions that involve rights arising under the Constitution and federal
laws. § 1331; § 1343(a)(3).
      Tiner relies on 42 U.S.C. § 1983, which requires him to prove that the
defendants, while acting “under color” of any state law, deprived him “of any
rights, privileges, or immunities secured by the Constitution and laws.”
§ 1983. Tiner does not allege that the named defendants were acting under
color of state law in conspiring to deprive him of his share of his father’s estate.
Nor does he allege that the defendants conspired with a state actor to deprive
him of his rights. See Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992). A
district court is not required to entertain a complaint seeking recovery under
the Constitution or laws of the United States if the alleged federal claim
“clearly appears to be immaterial and made solely for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial and frivolous.” Bell



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                                  No. 18-50558

v. Hood, 327 U.S. 678, 682-83 (1946). Because Tiner failed to plead any facts
demonstrating that the defendants acted under color of state law in depriving
him of his share of his father’s estate, he failed to plead and establish subject
matter jurisdiction based on the existence of a federal question. See id.; § 1331;
§ 1343(a)(3). Therefore, the district court did not err in dismissing the § 1983
claims for lack of subject matter jurisdiction. See Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006); FED. R. CIV. P. 12(h)(3).
      Regarding Tiner’s remaining claims, 42 U.S.C § 1985(3) prohibits
conspiracies to deprive any person of equal protection of the laws based on a
“racial or class-based animus.” Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 345
(5th Cir. 1981) (en banc).    Tiner’s allegations reflect that the defendants’
actions were motivated by their desire for an economic gain. Because Tiner
failed to allege facts demonstrating that the defendants participated in a race-
based conspiracy, his allegations failed to provide a basis for federal
jurisdiction under § 1985. See id. A valid § 1985 claim is a prerequisite to a
viable 42 U.S.C. § 1986 claim. See Bryan v. City of Madison, Miss., 213 F.3d
267, 276 (5th Cir. 2000).      Thus, Tiner’s § 1985 and § 1986 claims are
“insubstantial and frivolous,” and were properly dismissed for lack of subject
matter jurisdiction. Bell, 327 U.S. at 682-83.
      Tiner has not shown that his appeal is taken in good faith, i.e., that the
appeal raises legal points arguable on their merits and thus nonfrivolous. See
Howard, 707 F.2d at 220. Therefore, we DENY the IFP motion and DISMISS
the appeal as frivolous. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at 220;
5TH CIR. R. 42.2.




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