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

                                                                    FILED
                                                                  October 24, 2007
                                No. 07-40181
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

DOUGLAS E MITCHELL
                                            Plaintiff-Appellant

v.

J CHARLES CLINKSCALES, DDS

                                            Defendant-Appellee


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 1:06-CV-682


Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
      Douglas E. Mitchell appeals the district court’s dismissal, for lack of
subject-matter jurisdiction, of his suit seeking $2,246.00 and nonpecuniary relief
because of Dr. Clinkscales’s alleged failure to perform oral surgery as promised.
We have reviewed de novo the district court’s reasons and judgment, the record,
and Mitchell’s brief and find no error in the district court’s judgment.
      “[F]ederal courts are . . . empowered to hear only those cases that are
within the constitutional grant of judicial power, and that have been entrusted
to them by . . . Congress.” Sarmiento v. Texas Bd. of Veterinary Med. Examiners


      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-40181

by and through Avery, 939 F.2d 1242, 1245 (5th Cir. 1991). Subject-matter
jurisdiction exists if a suit arises under the Constitution, laws, or treaties of the
United States or arises between parties of diverse citizenship. Arbaugh v. Y&H
Corp., 126 S. Ct. 1235, 1238 (2006). The burden of pleading and proving subject-
matter jurisdiction is on the party invoking federal jurisdiction. Gassie v. SMH
Swiss Corp., 165 F.3d 23 (5th Cir. 1998).
      The complaint contains no allegation that Mitchell and Clinkscales are
citizens of different states; thus, Mitchell failed to plead and establish subject-
matter jurisdiction based on the existence of complete diversity. See 28 U.S.C.
§ 1332. Additionally, although Mitchell argues that Clinkscales is liable under
42 U.S.C. § 1983, Mitchell does not allege facts demonstrating that Clinkscales
acted under color of state law; thus, Mitchell failed to plead and establish
subject-matter jurisdiction based on the existence of a federal question. See
28 U.S.C. § 1331.
      The district court was required to dismiss the complaint. See FED. R. CIV.
P. 12(h)(3). Because Mitchell failed to raise an issue of arguable merit in this
court, this appeal is dismissed as frivolous. See McGrew v. Rodriguez, 47 F.3d
425 (1995); 5th CIR. R. 42.2. Mitchell’s motion for appointment of counsel is
denied. Additionally, we take notice of our decisions in Mitchell v. Bilby-Knight,
No. 95-40185 (5th Cir. May 17, 1995) (unpublished), and Mitchell v. Owens,
No. 95-40166 (5th Cir. May 18, 1995) (unpublished), which dismissed Mitchell’s
appeals as frivolous. We also notice that in the instant action Mitchell certified
to the district court that he had not previously been issued a sanction warning,
a certification revealed to be false by our decision in Bilby-Knight. Mitchell is
warned that the presentation of further frivolous actions will result in the
imposition of sanctions, including monetary penalties and restrictions on his
ability to seek relief in this court or in any court subject to our jurisdiction.
      APPEAL DISMISSED; MOTION DENIED; SANCTION WARNING
ISSUED.

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