                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS             November 18, 2003
                        FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                               No. 03-40403
                             Summary Calendar


ISABEL GONZALEZ,

            Plaintiff-Appellant,

                                  versus

FRANK DE LA GRANA, and Law Offices of Frank De La Grana,

            Defendant-Appellee.

                         ____________________

            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. B-02-CV-181
                        ____________________

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Isabel Gonzalez, federal prisoner #94143-079, appeals from the

dismissal with prejudice of his civil action.           Gonzalez’s federal-

law claim under the Racketeer Influenced and Corrupt Organizations

Act (RICO) was dismissed for failure to state a claim on which

relief may be granted, pursuant to FED. R. CIV. P. 12(b)(6), and his

state-law    claims   were   dismissed     for   lack   of   subject-matter

jurisdiction because the amount in controversy was less than


     *
        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that this opinion should not be published and is not precedent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.
$75,000.1     Gonzalez contends that the district court erred by

dismissing his RICO claim for failure to state a claim on which

relief may be granted; that the district court erred by dismissing

his state-law claims for lack of subject-matter jurisdiction; and

that the district court erred by dismissing his state-law claims

with prejudice instead of dismissing them without prejudice.

     The district court did not err by dismissing Gonzalez’s RICO

claim for failure to state a claim. Gonzalez’s factual allegations

did not give rise to any of the offenses listed as predicate acts

upon which a pattern of racketeering activity could be based.2

Therefore, dismissal was proper.3

     The dismissal of Gonzalez’s state-law claims for lack of

subject-matter jurisdiction was not erroneous, as the actual amount

in controversy was less than $75,000.4    First, because Gonzalez’s

civil RICO claim failed on its face to state a claim upon which

relief could be granted, the district court need not have added the

amount requested in conjunction with that claim to the amounts

requested in the state-law claims to determine the amount in

controversy.5


     1
         See 28 U.S.C. § 1332(a).
     2
         See 18 U.S.C. § 1961(1).
     3
       See McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158,
160 (5th Cir. 1995).
     4
         28 U.S.C. § 1332(a).
     5
         Burns v. Anderson, 502 F.2d 970, 971-72 (5th Cir. 1974).

                                    2
      Second,     Gonzalez’s    state-law     tort    claims    were    claims   of

attorney malpractice under Texas law.6           Gonzalez has failed to have

his North Carolina federal conviction overturned; he thus may not

pursue any state-law tort claims against the defendants.7                        The

amounts sought in conjunction with the state-law tort claims need

not   have     been   considered      when    determining       the    amount    in

controversy.

      Third, Gonzalez may not obtain punitive damages for breach of

contract.8      Gonzalez alleged that he paid defendant de la Grana

$10,000 to      retain   him,   and   the    record   from     Gonzalez’s   North

Carolina criminal case indicated that he paid his attorney there

$2,000.      Gonzalez cannot recover $75,000 in damages.              The district

court did not err by dismissing the state-law claims for lack of

diversity jurisdiction because Gonzalez failed to satisfy the

minimum jurisdictional amount.9

      Finally, the district court erred by dismissing Gonzalez’s

state-law claims with prejudice.             Because the dismissal of those

claims was jurisdictional in nature, we modify the judgment as to

Gonzalez’s state-law claims only to operate without prejudice.10

      6
           See Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. Ct. App.
1997).
      7
           See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex.
1995).
      8
           Manges v. Guerra, 673 S.W.2d 180, 184 (Tex. 1984).
      9
           See 28 U.S.C. § 1332(a).
      10
           FED. R. CIV. P. 41(b).

                                        3
The district court did not err by dismissing Gonzalez’s civil RICO

claim with prejudice.

     AFFIRMED AS MODIFIED.




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