United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-10624
Conference Calendar
JOSEPH JAMES FALCETTA, JR.,
Plaintiff-Appellant,
versus
DAVID K. CHAPMAN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-222
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Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Joseph James Falcetta, Jr., Texas prisoner # 822447, appeals
the sua sponte dismissal for lack of subject matter jurisdiction
of his pro se lawsuit against former counsel. Both Falcetta and
appellee David K. Chapman are residents of Texas; consequently,
diversity jurisdiction does not exist. See 28 U.S.C. § 1332;
Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1258-59
(5th Cir. 1988).
Falcetta conclusionally asserts that his claim presents a
federal question. However, his allegations of “legal
*
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this opinion should not be published and is not precedent except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.
No. 06-10624
-2-
malpractice” demonstrate that his claim is for negligence, which
does not give rise to a claim under federal or constitutional
law. See 28 U.S.C. § 1331.
Dismissal for lack of subject matter jurisdiction was not
error. This appeal is without arguable merit, is frivolous, and
is dismissed. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2.
The dismissal of the instant appeal counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). Falcetta is cautioned that if
he accumulates three strikes, he will be barred from proceeding
in forma pauperis in any civil action or appeal filed while he
is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
DISMISSED; SANCTION WARNING ISSUED.