Denchfield v. Waller ( 1996 )

USCA1 Opinion

        October 4, 1996         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-2151



                                 ALLAN O. DENCHFIELD,



                                Plaintiff, Appellant,



                                          v.



                                  JULIUS E. WALLER,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Allan O. Denchfield on brief pro se.
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                      Per   Curiam.       Plaintiff-appellant   Allan  O.
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            Denchfield appeals pro se from the dismissal of his complaint
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            as frivolous pursuant to 28 U.S.C.   1915(d).  We affirm.



                      It  was  appropriate for  the  district court,  sua



            sponte, to issue  a show cause order  requiring Denchfield to



            explain why his complaint should not be dismissed for lack of



            subject matter jurisdiction.   Cf. In re Recticel Foam Corp.,
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            859 F.2d 1000, 1002 (1st Cir. 1988) ("It is too elementary to



            warrant citation  of authority that a court has an obligation



            to inquire  sua sponte into its  subject matter jurisdiction,



            and to proceed no further if such jurisdiction is wanting.").



            The  facts alleged  in the  complaint do  not confer  federal



            question  jurisdiction.1   And,  although  Denchfield invoked
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            diversity jurisdiction and indicated on the civil cover sheet



            that  he was seeking $400,000.00, the  complaint is devoid of



            any specific allegations supporting an amount  in controversy



            in excess of $50,000.00.



                      Once   challenged,  a   party  seeking   to  invoke



            diversity  jurisdiction  has  the  burden  of  alleging  with



            sufficient particularity the facts  indicating that it is not



            a  legal certainty  that  the claim  involves  less than  the



            jurisdictional amount.  Department  of Recreation & Sports v.
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               1Contrary  to Denchfield's suggestion,  the complaint does
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            not state a claim under 42 U.S.C.   1983.   Most notably, the

            defendant is  a private citizen,  and the complaint  fails to

            allege facts from which it may be inferred that the defendant

            acted under "color of law."



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            World  Boxing  Ass'n,  942  F.2d  84,  88  (1st  Cir.  1991).
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            Denchfield's response to the show cause order was egregiously



            late and, we think, failed to meet this burden.  Accordingly,



            we  find no error in  the dismissal.  We add  that we find no



            abuse of discretion in the  district court's failure to grant



            Denchfield's belated motion for  appointment of counsel.  See
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            DesRosiers  v.  Moran,  949  F.2d  15,  24  (1st  Cir.  1991)
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            (explaining that we will overturn the denial of a request for



            appointed counsel in a  civil case only if the  record, taken



            as  a whole, reflects a  manifest abuse of  the trial court's



            broad discretion).



                      Affirmed.
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