Ross v. Barnes

873 F.2d 1440 Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Daniel H. ROSS, Plaintiff-Appellant, v. Latherian BARNES, individually and in his person as Unit Manager of Service Master Industries; Service Master Industries, its agent, employee, servant and successor-ininterest, DefendantsAppellees. No. 88-2629. United States Court of Appeals, Fourth Circuit. Submitted: Feb. 28, 1989. Decided: April 12, 1989. Daniel H. Ross, appellant pro se. James P. Osick (Seyfarth, Shaw, Fairweather & Geraldson), for appellees. Before DONALD RUSSELL, JAMES DICKSON PHILLIPS and CHAPMAN, Circuit Judges. PER CURIAM: [1] Daniel Ross brought this action alleging that he was wrongfully discharged by defendant Barnes from his employment with Service Master Industries. The district court dismissed the action for lack of jurisdiction. Our review of the record and the district court's opinion accepting the recommendation of the magistrate discloses that this appeal is without merit. [2] To meet the jurisdictional requirement of federal courts in diversity actions pursuant to 28 U.S.C. Sec. 1332, diversity must be complete, that is the plaintiff cannot be a citizen of the same state as any defendant. Woodhouse v. Budwesky, 70 F.2d 61 (4th Cir.), cert. denied, 293 U.S. 573 (1934). Regardless of Ross's contention that Service Master Industries is incorporated in Illinois, diversity is not present here because Ross and Barnes are both citizens of North Carolina. Additionally, Ross argues that this action presents a claim of denial of constitutional due process under 42 U.S.C. Sec. 1983. The district court correctly dismissed this claim pursuant to 28 U.S.C. Sec. 1915(d) because Ross failed to allege state action as required by Sec. 1983. Accordingly, we affirm on the reasoning of the district court. [3] We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. [4] AFFIRMED.