The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-41015
Summary Calendar
RAYMUNDO MONTOYA-ORTIZ,
Plaintiff-Appellant,
versus
BENJAMIN BROWN, Bureau of Prisons Health Services Administrator;
DUCHIESNE, DR., Chief Doctor of Health Services; NUNEZ, Mid-level
Practitioner; MCCLEERY, Licensed Vocational Nurse; DOE, DR.,
Contract Physician; KATHLEEN HAWK SAWYER, Director, Federal
Bureau of Prisons; UNITED STATES OF AMERICA; HOUGLUM, DR.,
Contract Physician,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CV-62
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Raymundo Montoya-Ortiz (Montoya), federal prisoner # 55702-
080, filed a pro se civil rights complaint under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), the Eighth Amendment, and the Federal Tort Claims Act
(FTCA), seeking damages for medical negligence and gross
negligence against the following officials at the Bureau of
*
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this opinion should not be published and is not precedent except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. 04-41015
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Prisons (BOP) facility in Three Rivers, Texas: Benjamin Brown,
M.D., Health Administrator; Carlos Duchiesne, M.D., Chief Doctor
of Health Services; Miguel Nunez, Physician Assistant; and Nathan
McCleery, Licensed Vocational Nurse. He filed an amended
complaint adding the United States and Dr. Houglum, an
independent contract physician, as defendants.** The district
court granted a partial dismissal order dismissing Montoya’s
Bivens claims, and later granted a summary judgment dismissing
Montoya’s remaining FTCA and Eighth Amendment claims. Montoya
now appeals.
Bivens claims
Montoya argued that the district court erred in dismissing
his Bivens claims against Brown and Duchesne because they failed
to supervise their staff resulting in an improper diagnosis of
his foot.
This court reviews de novo a district court’s dismissal for
failure to state a claim under Rule 12(b)(6). Capital Parks,
Inc. v. Southeastern Adver. and Sales Sys., Inc., 30 F.3d 627,
629 (5th Cir. 1994). Section 42 U.S.C. § 233(a) of the Public
Health Services Act preempts Bivens claims, providing that a
**
Kathleen Hawk Sawyer, the director of the BOP, was also
served although Montoya did not list her as a defendant in his
amended complaint. Houglum, the independent contract physician,
and Sawyer are not parties to this appeal. This court has
appellate jurisdiction because the final judgment disposed of all
claims against all the defendants. See Bader v. Atl. Int’l,
Ltd., 986 F.2d 912, 914-15 (5th Cir. 1993).
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plaintiff’s sole remedy under that section is a claim brought
under the FTCA. See Carlson v. Green, 446 U.S. 14, 20 (1980).
Montoya has consistently alleged that the defendants acted
within the scope of their employment. He does not allege
otherwise in his reply brief. Accordingly, the district court
did not err in dismissing his Bivens claims against Brown and
Duchiesne under 42 U.S.C. § 233(a). See Carlson, 446 U.S. at 20.
Further, his claim that Brown and Duchiesne failed to properly
supervise their staff lacks merit because respondeat superior
liability is not available in a Bivens action. See Abate v. S.
Pac. Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993).
Montoya also alleges that Nunez and McCleery were
deliberately indifferent to his injury under the Eighth
Amendment. Although Nunez eventually ordered an x-ray of
Montoya’s broken foot, Montoya alleges that Nunez was initially
negligent by following the orders of the independent contract
physician. Nunez’s actions, at the worst, demonstrate an
incorrect diagnosis which does not establish a showing of
deliberate indifference. See Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). Similarly, with
respect to McCleery, Montoya does not dispute that McCleery
followed the order of the independent contractor physician.
Montoya’s mere allegation that McCleery should have contacted
additional doctors in contravention of the physician’s order does
not establish a showing of repugnant action to constitute
No. 04-41015
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deliberate indifference. See Estelle v. Gamble, 429 U.S. 97,
105-06 (1976). Accordingly, the district court did not err in
dismissing Montoya’s Eighth Amendment claims with respect to
Nunez and McCleery.
FTCA claim
Montoya argues that the district court erred in granting the
defendants’ summary judgment on his FTCA claim because the
medical staff was dilatory in discovering his injury. He further
argues that it was impossible for him to argue the case and
provide an expert as an indigent party. He also argues that the
district court failed to conduct an evidentiary hearing. Because
Montoya raises this argument regarding an evidentiary hearing for
the first time on appeal, it will not be considered. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
This court reviews a grant of summary judgment de novo and
applies the same standards as did the district court. Clark v.
America’s Favorite Chicken Co., 110 F.3d 295, 296 (5th Cir.
1997). “Summary judgment is appropriate when the record reflects
that ‘there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’”
Id. at 297 (quoting FED. R. CIV. P. 56(c)).
The FTCA is a limited waiver of sovereign immunity making
the United States liable to the same extent as private parties
for certain torts of federal employees acting within the scope of
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their employment. United States v. Orleans, 425 U.S. 807, 813
(1976); 28 U.S.C. § 1346(b). Under Texas law, expert testimony
is generally required to prove the applicable standard of care in
an FTCA claim. Quijano v. United States, 325 F.3d 564, 567 (5th
Cir. 2003). Id.
Montoya never filed a response to the defendants’ motion for
summary judgment arguing that he had difficulties obtaining an
expert. Under Rule 56, Montoya has failed to produce competent
summary judgment evidence to establish the existence of the
elements of duty, breach of standard of care, causation and
damages after an adequate time for discovery. Accordingly, the
district court did not err in dismissing Montoya’s FTCA claim
against the defendants. See Quijano, 325 F.3d at 567.
AFFIRMED.