[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 17, 2009
THOMAS K. KAHN
No. 09-10959
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 08-00872-CV-J-32-MCR
BRENDA W. DAVIS,
Plaintiff-Appellant,
versus
RYAN OAKS APARTMENT,
d.b.a. WRH Realty,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 17, 2009)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Brenda Davis, proceeding pro se, appeals the district court’s sua sponte
dismissal of her amended complaint against her landlord, Ryan Oaks Apartment,
for lack of subject-matter jurisdiction. Her amended complaint asserted federal
jurisdiction under 28 U.S.C. §§ 1391 and 2671 et seq., and she now argues that
jurisdiction exists under 42 U.S.C. § 1983. Davis also contends that the court erred
in vacating its initial order granting her motion to proceed in forma pauperis.
“The propriety of the district court’s dismissal of the complaint for lack of
subject matter jurisdiction is a question of law which we review de novo.” Hall v.
U.S. Dep’t Veterans’ Affairs, 85 F.3d 532, 533 (11th Cir. 1996). The lack of
federal jurisdiction may be raised by a federal court on its own initiative at any
stage in the litigation. Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S. Ct. 1235,
1240 (2006). Federal subject-matter jurisdiction is proper only when (1) a
plaintiff’s claim involves a federal question, or (2) there is diversity among the
parties. See 28 U.S.C. §§ 1331, 1332. If the court determines that it lacks subject-
matter jurisdiction, it must dismiss the complaint in its entirety. Arbaugh, 546 U.S.
at 514, 126 S. Ct. at 1244.
Davis does not allege any “federal question” that would give the district
court jurisdiction to decide her complaint. A federal question exists when the
plaintiff pleads a “colorable claim ‘arising under’ the Constitution or laws of the
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United States.” Id. at 513, 126 S. Ct. at 1244. Davis’s amended complaint
mentions 28 U.S.C. § 1391, but that provision establishes the rules for proper
venue in federal actions; it does not confer jurisdiction. Her amended complaint
also mentions 28 U.S.C. § 2671 et seq., but that provision concerns the Federal
Tort Claims Act, 28 U.S.C. § 1346, which only provides an avenue for bringing
tort claims against the United States, one of its agencies, or certain federal
employees. See Means v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999).
Davis’s amended complaint alleges, among other things, personal injury and
property damage, which are actionable under state tort law. The complaint does
not allege that Ryan Oaks has any connection to the U.S. government or any
federal agency. Thus, her complaint was not proper under the Federal Tort Claims
Act, and it failed to raise questions of federal law. See 28 U.S.C. § 1331.
Davis argues that subject-matter jurisdiction exists under 42 U.S.C. § 1983,
but that argument was not made in her amended complaint. “A case does not arise
under federal law unless a federal question is presented on the face of the
plaintiff’s complaint.” Kemp v. Int’l Business Machines Corp., 109 F.3d 708, 712
(11th Cir. 1997); see also Hall, 85 F.3d at 533 (when case is dismissed on basis of
complaint, court must look to face of that pleading to determine subject-matter
jurisdiction). Moreover, a new theory raised for the first time on appeal will not be
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considered by this Court. Access Now, Inc, v. Southwest Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004). In the interest of completeness, however, we note
that a claim under § 1983 requires the defendant to be a “state actor” or to be
acting “under color of state law.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th
Cir. 1992). That is not the case here. Davis argues that Ryan Oaks Apartment
receives funds from the Department of Housing and Urban Development, but the
Supreme Court has held that the mere receipt of federal funds by a private entity is
not sufficient to invoke federal jurisdiction under § 1983. United States v. Orleans,
425 U.S. 807, 813–16, 96 S. Ct. 1971, 1975–77 (1976).
Davis’s complaint also does not invoke “diversity” jurisdiction, because
both Davis and the defendant are “citizens” of Florida. See 28 U.S.C. §
1332(a)(1). Thus, the district court did not err in dismissing Davis’s amended
complaint sua sponte for lack of subject matter jurisdiction.
We also find no error in the district court’s decision to vacate its initial order
granting Davis’s motion for leave to proceed in forma pauperis. We review such a
denial only for abuse of discretion. Martinez v. Kristi Kleaners, Inc., 364 F.3d
1305, 1306 (11th Cir. 2004). The district court did not abuse its discretion because
it was authorized, indeed compelled, to dismiss the case once it realized that
subject-matter jurisdiction did not exist. See Arbaugh, 546 U.S. at 514, 126 S. Ct.
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at 1244 (“[W]hen a federal court concludes that it lacks subject-matter jurisdiction,
the court must dismiss the complaint in its entirety.”); see also 28 U.S.C. §
1915(e)(2) (requiring dismissal “at any time” a district court determines an in
forma pauperis case to be frivolous); Sun v. Forrester, 939 F.2d 924 (11th Cir.
1991) (defining a frivolous appeal as one that is “without arguable merit” either
factually or legally).
AFFIRMED.
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