                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                  F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                   April 3, 2007
                              FOR THE FIFTH CIRCUIT
                                                                              Charles R. Fulbruge III
                                __________________________                            Clerk

                                       No. 06-41503
                                    Summary Calendar
                                __________________________


PRESTON D. HOWARD,
                                                                         Plaintiff-Appellant,

versus

LOSSIE HOWARD HOPKINS, Operating as the Executrix of a Will
Under the Laws of Texas; SHARION FISHER, Attorney operating
as an Official of the Court who drafted and probated the
applications in their capacity of fraud upon the Court,

                                                                     Defendants-Appellees.

                 ___________________________________________________

                       Appeal from the United States District Court
                             for the Eastern District of Texas
                                    (No. 6:06-CV-166)
                 ___________________________________________________

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
                 *
PER CURIAM:

         Preston Howard, pro se, appeals the district court’s dismissal of his claims relating

to the probate of a will for lack of subject matter jurisdiction. We affirm. Howard’s original

complaint, filed against Lossie Edward Hopkins, the executrix of the will, and against


         *
        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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Sharion Fisher, an attorney involved in the probate of that will, asserted various general

allegations that Hopkins and Fisher “conspired and confederated together and

fraudulently collected certain monies” from the estate. Howard’s amended complaint,

submitted in response to a court order seeking clarification of Howard’s claims, alleged

that Hopkins and Fisher “acted under color of law and used the state laws to violate the

plaintiff’s constitutional rights.” The magistrate judge to whom the case was assigned

recommended that Howard’s claim be dismissed, and the district court agreed.

       Howard’s complaint was properly dismissed. Hopkins and Fisher are private

citizens, not government employees. Although private persons willfully participating with

the state act under color of state law, the complaint does not contain facts showing that

either Hopkins or Fisher did so. Sarmiento, D.V.M. v. Tex. Bd. of Veterinary Med. Exam’rs,

939 F.2d 1242, 1245–46, 1248 (5th Cir. 1991).

       AFFIRMED.




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