                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           March 15, 2006
                             No. 05-11759
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

               D. C. Docket No. 05-00187-CV-ORL-31-KRS

MICHAEL E. HOWARD,


                                                           Plaintiff-Appellant,

                                  versus

WAL-MART,
BRYAN KREBS,
DUSTIN SHARRICK,
RODNEY JEFFERSON,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 15, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:

      This case was initiated by appellant in the Circuit Court for Volusia County,

Florida, after he pled guilty to criminal charges arising out of his theft of some

radar detectors from a Wal-Mart store on December 8, 2003. His complaint

contains federal constitutional and Florida statutory claims against Wal-Mart and

Wal-Mart employees involved in his apprehension. Given the presence of the

federal constitutional claims, the defendants removed the case to the district court,

pursuant to 28 U.S.C. § 1331, and filed a motion to dismiss complaint for failure to

state a claim for relief. Appellant responded by moving the court to remand the

case to state court on two grounds: (1) the defendants had not asserted a basis for

removing the case, which, in his view, contains only state law claims, and (2) their

removal was untimely.

      The district court denied appellant’s motion to remand, concluding that the

case was removable because some of appellant’s claims appeared to be based on

federal constitutional law. At the same time, the court granted the defendants’

motion to dismiss.1 Appellant now appeals the court’s rulings.

      We instructed the parties to address the following issue in their briefs:

“Whether the district court properly denied [appellant’s] motion for remand to the


      1
          The court granted appellant leave to file an amended complaint, but he chose not to do
so.

                                                2
state court?”

      A defendant may remove to federal court a civil action brought in state court

provided that the federal court has original jurisdiction over the action. 28 U.S.C.

§ 1441(a). District courts “have original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

      To decide if a complaint states a claim “arising under the Constitution, laws,

or treaties of the United States,” the district court must consider the way that the

complaint is drawn. See Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 775, 90

L.Ed. 939 (1946). “For to that extent the party who brings a suit is master to

decide what law he will rely upon, and does determine whether he will bring a suit

arising under the (Constitution or laws) of the United States by his declaration or

bill.” Id. (quotation and alteration omitted). Therefore, where a complaint “is so

drawn as to seek recovery directly under the Constitution or laws of the United

States,” the district court maintains jurisdiction unless (1) “the alleged claim under

the Constitution or federal statutes clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction” or (2) “where such a claim is

wholly insubstantial and frivolous.” Id. at 681-83, 66 S.Ct. at 776. “Under the

latter Bell exception, subject matter jurisdiction is lacking only if the claim has no

plausible foundation, or if the court concludes that a prior Supreme Court decision



                                           3
clearly forecloses the claim.” Blue Cross & Blue Shield of Ala. v. Sanders, 138

F.3d 1347, 1352 (11th Cir. 1998) (quotations omitted); see also McGinnis v.

Ingram Equip. Co., 918 F.2d 1491, 1494 (11th Cir. 1990) (en banc) (“The test of

federal jurisdiction is not whether the cause of action is one on which the claimant

can recover. Rather, the test is whether the cause of action alleged is so patently

without merit as to justify . . . the court’s dismissal for want of jurisdiction.”).

       The federal constitution does not protect against injuries by purely private

individuals – that is, individuals who cannot be considered as acting for state or

local government. See, e.g., Lyes v. City of Riviera Beach, 166 F.3d 1332, 1348-

49 (11th Cir. 1999) (“The Equal Protection Clause . . . is a guarantee of protection

against unjust state action; it does not reach the conduct of private individuals.”);

Jeffries v. Ga. Residential Fin. Auth., 678 F.2d 919, 922 (11th Cir. 1982)

(explaining that “the fourteenth amendment proscription against deprivations of

property without due process of law reaches only government action and does not

inhibit the conduct of purely private persons in their ordinary activities.”). In the

complaint before us, the defendants appear as purely private actors; hence, nothing

they allegedly did could have constituted a violation of the federal constitution.

Appellant’s constitutional claims are insubstantial and frivolous; consequently, the

district court lacked original jurisdiction over his case. See Bell, 327 U.S. at 682-



                                             4
83, 66 S.Ct. at 776; Blue Cross & Blue Shield, 138 F.3d at 1352. We therefore

vacate the district court’s judgment and remand the case with the instruction that

the court enter an order remanding the case to the Circuit Court of Volusia County.

      SO ORDERED.




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