ARLEN SMITH V. KEEFE COMMISSARY NETWORK, No. 16-35996 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 3 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ARLEN PORTER SMITH, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 16-35996 D.C. No. 2:16-cv-01530-SI v. MEMORANDUM* KEEFE COMMISSARY NETWORK, Defendant-Appellee. Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding Submitted September 26, 2017** Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges. Arlen Porter Smith, an Oregon state prisoner, appeals pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his diversity action arising from the loss of his legal materials and intellectual property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Naffe v. Frey, 789 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). F.3d 1030, 1035 (9th Cir. 2015). We affirm. The district court properly dismissed Smith’s action for lack of subject matter jurisdiction because Smith failed to allege facts sufficient to show that the amount in controversy was satisfied. See 28 U.S.C. § 1332(a) (requirements for diversity jurisdiction); Naffe, 789 F.3d at 1139-40 (while the amount claimed on the face of the complaint generally controls, dismissal is warranted if it appears “to a legal certainty that the claim is really for less than the jurisdictional amount” (citation and internal quotation marks omitted)). We treat the dismissal of the action for lack of subject matter jurisdiction as being without prejudice. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004). AFFIRMED. 2 16-35996

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