     08-6165-cv
     Jenkins v. Murphy
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).”
A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH
THE PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY O RDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY
A C C E S S I B L E W I T H O U T P A Y M E N T O F F E E (S U C H A S T H E D A T A B A S E A V A IL A B L E A T
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.

            At a stated term of the United States Court of Appeals for the Second Circuit,
     held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
     the City of New York, on the 15 th day of December, two thousand nine.

     PRESENT:
                 PIERRE N. LEVAL,
                 PETER W. HALL,
                       Circuit Judges,
                 J. GARVAN MURTHA,1
                       District Judge.
     __________________________________________

     Sylvia Jenkins,

                         Plaintiff-Appellant,

                         v.                                                08-6165-cv

     Michael Murphy,2

                 Defendant-Appellee.
     __________________________________________


              1
               J. Garvan Murtha, Senior District Judge of the United States District Court for the
     District of Vermont, sitting by designation.
              2
               The Defendant-Appellee did not file a notice of appearance before either the district
     court or this Court.
FOR APPELLANT: Sylvia Jenkins, pro se, Syracuse, NY.

       Appeal from a judgment of the United States District Court for the Northern District of

New York (McCurn, J.; Lowe, M.J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the case is DISMISSED for lack of jurisdiction.

       Appellant Sylvia Jenkins, pro se, appeals the district court’s sua sponte dismissal of her

42 U.S.C. § 1983 complaint for failure to state a claim. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

       We dismiss Jenkins’s appeal for want of subject-matter jurisdiction. “ ‘It is a

fundamental precept that federal courts are courts of limited jurisdiction’ and lack the power to

disregard such limits as have been imposed by the Constitution or Congress.” Durant, Nichols,

Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) (quoting

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)). Jenkins’s complaint

suggests no basis for federal question jurisdiction, as the defendant is a private party and there is

no allegation that he was acting under the color of state law. Tancredi v. Metro. Life Ins. Co.,

316 F.3d 308, 312 (2d Cir. 2003) (“A plaintiff pressing a claim of violation of his constitutional

rights under § 1983 is . . . required to show state action.”); Carlos v. Santos, 123 F.3d 61, 65 (2d

Cir. 1997) (“[T]he defendant in a § 1983 action [must] have exercised power possessed by virtue

of state law and made possible only because the wrongdoer is clothed with the authority of state

law.”) (internal quotation marks omitted). Nor has Jenkins pled any basis for this Court to

exercise diversity jurisdiction in this matter. Moreover, despite permission from the district court




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to file an amended complaint clarifying that court’s basis for exercising subject-matter

jurisdiction, Jenkins failed to file a complaint or otherwise respond to the court’s instructions.

       We conclude that this Court lacks subject-matter jurisdiction over this case, and it is thus

DISMISSED.


                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk

                                               By:__________________________




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