Opinion
No. 06-41503 Summary Calendar.
April 3, 2007.
Preston D. Howard, pro se.
Appeal from the United States District Court for the Eastern District of Texas (No. 6:06-CV-166).
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
Preston Howard, pro se, appeals the district court's dismissal of his claims relating to the probate of a will for lack of subject matter jurisdiction. We affirm. Howard's original complaint, filed against Lossie Edward Hopkins, the executrix of the will, and against Sharion Fisher, an attorney involved in the probate of that will, asserted various general allegations that Hopkins and Fisher "conspired and confederated together and fraudulently collected certain monies" from the estate. Howard's amended complaint, submitted in response to a court order seeking clarification of Howard's claims, alleged that Hopkins and Fisher "acted under color of law and used the state laws to violate the plaintiffs constitutional rights." The magistrate judge to whom the case was assigned recommended that Howard's claim be dismissed, and the district court agreed.
Howard's complaint was properly dismissed. Hopkins and Fisher are private citizens, not government employees. Although private persons willfully participating with the state act under color of state law, the complaint does not contain facts showing that either Hopkins or Fisher did so. Sarmiento, D.V.M. v. Tex. Bd. of Veterinary Med. Exam'rs, 939 F.2d 1242, 1245-46, 1248 (5th Cir. 1991).
AFFIRMED.