Robert G. Cox v. Barbara G. Winfield

817 F.2d 104 Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robert G. COX, Plaintiff-Appellant, v. Barbara G. WINFIELD, Defendant-Appellee. No. 86-5559. United States Court of Appeals, Sixth Circuit. April 29, 1987. W.D.Tenn. AFFIRMED. Before KEITH, KENNEDY and RYAN, Circuit Judges. ORDER [1] This pro se Tennessee prisoner appeals from the district court's summary dismissal for his civil complaint filed pursuant to 42 U.S.C. Sec. 1983. This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and informal brief of appellant, this panel unanimously agrees that oral argument is not needed. Rule 9(b)(3), Rules of the Sixth Circuit. [2] In this action, plaintiff seeks compensatory and punitive damages for the conversion of his personal property by his former roommate, the named defendant, upon plaintiff's incarceration on charges instituted by the roommate. Plaintiff filed this federal complaint March 4, 1986, after he did not receive a response on essentially the same lawsuit he had filed in a Memphis, Tennessee court January 23, 1986. The district court sua sponte ordered the dismissal of the complaint for lack of diversity of citizenship and for failure to state a claim under 42 U.S.C. Sec. 1983. [3] A review of the record indicates that the district court was correct to dismiss the complaint. Because plaintiff and defendant are residents of Tennessee, there is no federal jurisdiction under the diversity statute, 28 U.S.C. Sec. 1332. Furthermore, plaintiff has failed to establish that the defendant, a private individual, deprived him of a constitutional right under color of state law. See Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 157, 166 (1978); Wagner v. Metropolitan Nashville Airport Authority, 772 F.2d 227, 229-30 (6th Cir.1985); Bier v. Fleming, 717 F.2d 308, 310-12 (6th Cir.1983), cert. denied, 465 U.S. 1026 (1984). [4] Accordingly, we affirm the district court's order on appeal pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.