     Case: 14-20037      Document: 00512978151         Page: 1    Date Filed: 03/23/2015




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

                                    No. 14-20037
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         March 23, 2015
                                                                            Lyle W. Cayce
DONALD TOPPER,                                                                   Clerk


                                                 Plaintiff-Appellant
v.

PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY; AAAA
INSURANCE AGENCY; JOHN DOE; OSCAR ZAMBRANO,


                                                 Defendants-Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3697


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM:*
       IT IS ORDERED that the opinion previously filed in this case, Topper v.
Progressive Cnty. Mut. Ins. Co., No. 14-20037, __ F. App’x __, 2015 WL 860791,
is WITHDRAWN. The following opinion is substituted therefor:




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 14-20037       Document: 00512978151          Page: 2     Date Filed: 03/23/2015



                                       No. 14-20037


       Donald Topper, Texas prisoner #1800924, appeals from the district
court’s judgment dismissing his complaint for failure to state a claim under 28
U.S.C. § 1915A(b)(1). He contends that the district court incorrectly construed
his complaint as arising under 42 U.S.C. § 1983. We review his claims de novo,
using the same standard applicable to dismissals under Federal Rule of Civil
Procedure 12(b)(6). Coleman v. Sweetin, 745 F.3d 756, 763 (5th Cir. 2014).
       Topper’s complaint does not allege the violation of a federally guaranteed
right or contend that the defendants acted under color of state law. See § 1983;
Filarsky v. Delia, 132 S. Ct. 1657, 1661 (2012). Further, he does not invoke his
federal civil rights or assert that he was denied due process. Rather, he asserts
various tort and contract claims under state law against the defendants as
private actors without alleging that they committed acts with the involvement
or cooperation of the State. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir.
1994). Thus, this court does not exercise federal question jurisdiction. See 28
U.S.C. § 1331. Nor does this court exercise diversity jurisdiction because,
despite Topper alleging damages exceeding $75,000, he does not allege the
citizenship of the named defendants according to 28 U.S.C. §1332. 1 See Dos
Santos v. Belmere Ltd., 516 F. App’x 401, 402–03 (5th Cir. 2013) (“Although we
‘liberally construe’ the filings of pro se litigants and ‘apply less stringent
standards to parties proceeding pro se than to parties represented by counsel,’
the plaintiff must prove, by a preponderance of the evidence, that the court has


       1 Out of the four defendants, Topper only listed the mailing addresses for AAAA
Insurance Agency and Oscar Zambrano, which are both located in Texas, and the mailing
address for John Doe, located in Ohio. See Topper Complaint at 1–2. However, Topper failed
to allege the proper state of citizenship for either party. For instance, AAAA Insurance
Agency, likely a corporation, is a citizen of any state where it is incorporated and the state
where its principal place of business is located. See 28 U.S.C. § 1332(c)(1). Topper’s complaint
makes no mention of the citizenship of any of the defendants pursuant to § 1332(c).

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                                       No. 14-20037
jurisdiction based on the complaint and evidence.” (quoting Grant v. Cuellar,
59 F.3d 523, 524 (5th Cir. 1995))).
       Accordingly, although the district court erred in dismissing Topper’s
complaint for failure to state a claim under § 1983, we AFFIRM the district
court’s dismissal but for lack of subject matter jurisdiction. We note, however,
that the dismissal for lack of subject matter jurisdiction should have been
without prejudice, as a district court is unable to reach the merits of claims
over which it has no subject matter jurisdiction. See Cahanin v. Tobias, 5 F.3d
1494 (5th Cir. 1993) (unpublished); see also Hix v. United States Army Corps.
of Eng’rs, 155 F. App’x 121, 129 (5th Cir. 2005) (“Because the district court did
not reach the merits of Appellants’ claims, and did not have jurisdiction to do
so, it was incorrect to dismiss those claims with prejudice.”); Davis v. United
States, 961 F.2d 53, 57 (5th Cir. 1991) (same). We, therefore, modify the
judgment accordingly.
       For the foregoing reasons, the judgment is modified to reflect dismissal
without prejudice; and the dismissal, as modified, is AFFIRMED. 2




       2 With respect to Topper’s request for a refund of overpayment of district court filing
fees, Topper should seek any such refund from the district court in the first instance.

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