Jenkins v. TriWest Healthcare ( 2023 )

Case: 22-30429 Document: 00516639459 Page: 1 Date Filed: 02/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 8, 2023
No. 22-30429
Lyle W. Cayce
Clerk
Charles Jenkins,
Plaintiff—Appellant,
versus
TriWest Healthcare Alliance,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:22-CV-37
Before Smith, Clement, and Wilson, Circuit Judges.
Per Curiam:*
Charles Jenkins appeals the dismissal of his suit for medical malprac-
tice. We affirm.
I.
On January 9, 2020, Jenkins sued pro se in federal district court. He
alleged that three doctors, the “VA Medical Center,” “Tulane Medical Cen-
ter,” and “Triwest Healthcare Alliance” had “engaged and/or participated
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30429 Document: 00516639459 Page: 2 Date Filed: 02/08/2023
No. 22-30429
in un-necessary [sic] surgical-negligence medical malpractice . . . .” He
stated, “[t]he surgeon was experimenting,” and he asked for “punitive dam-
ages because the surgeon did not have clearance to perform.” Jenkins
asserted federal question jurisdiction under the Federal Torts Claims Act
(“FTCA”), 28 U.S.C. § 2671 et seq.
Defendants TriWest Healthcare Alliance (“TriWest”) and Univer-
sity Healthcare System, L.C., d/b/a/ Tulane University Hospital & Clinic
(“TUHC”), moved to dismiss, alleging, among other things, failure to state
a claim, lack of subject matter jurisdiction, and that the claims were time-
barred. The district court dismissed without prejudice for lack of subject
matter jurisdiction.
II.
Dismissals under Rule 12(b)(1) are reviewed de novo. See JTB Tools &
Oilfield Servs., L.L.C. v. United States, 831 F.3d 597, 599 (5th Cir. 2016).
“The burden of proof . . . is on the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). The standard of review is
similar to that of Rule 12(b)(6) but allows the court “to consider a broader
range of materials,” such as “undisputed facts in the record” or “the court’s
resolution of disputed facts.” Williams v. Wynne, 533 F.3d 360, 365 n.2 (5th
Cir. 2008) (quoting another source). A court should dismiss for lack of sub-
ject matter jurisdiction only when “it appears certain that the plaintiff cannot
prove any set of facts in support of his claim that would entitle plaintiff to
relief.” Ramming, 281 F.3d at 161.
We may affirm for any reason supported by the record, even if not
relied on by the district court. United States v. Grosz, 76 F.3d 1318, 1324 n.6
(5th Cir. 1996). We cannot consider arguments not presented to the district
court. Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988);
Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc).
2
Case: 22-30429 Document: 00516639459 Page: 3 Date Filed: 02/08/2023
No. 22-30429
III.
The district court held that Jenkins had not established subject matter
jurisdiction because he had failed to exhaust his administrative remedies, a
jurisdictional prerequisite for an FTCA claim. The FTCA is a limited waiver
of sovereign immunity that allows a suit against the United States only when
the plaintiff has “first exhausted his administrative remedies.” McNeil v.
United States, 508 U.S. 106, 107 (1993). That exhaustion is a “jurisdictional
prerequisite for FTCA claims that cannot be waived.” Coleman v. United
States, 912 F.3d 824, 834 (5th Cir. 2019). For exhaustion, the plaintiff must
have “presented the claim to the appropriate Federal agency,” and the
agency must have denied the claim. 28 U.S.C. § 2675(a). If a plaintiff cannot
show exhaustion, he has not pleaded a federal question. See Coleman,
912 F.3d at 834.
None of Jenkins’s filings alleged that he had exhausted his administra-
tive remedies until after the magistrate judge submitted his Report and Rec-
ommendation. At that point, Jenkins filed an objection, stating that “the
evidence of records [sic] will reveal that the plaintiff filed his Standard
form 95 within the two (2) year statute of limitations and there was no object-
tion to my submission.” The district court overruled that objection and held
that because Jenkins did not “identify the agency with which he filed [the
form], the date on which it was filed, [] the disposition of his alleged fil-
ing, . . . [or] a copy of the form he says he filed,” he had failed to show that
he had exhausted.
Weeks later, Jenkins filed an untimely “objection” to that ruling, con-
tending that he had indeed filed his form with the VA and that discovery
would show that. But Jenkins still failed to provide any evidence pertaining
to the Standard Form 95 itself. The court therefore declined to revisit the
judgment. Jenkins filed a notice of appeal and attached what appears to be
his Standard Form 95 and a FedEx tracking printout purportedly confirming
3
Case: 22-30429 Document: 00516639459 Page: 4 Date Filed: 02/08/2023
No. 22-30429
that the Form had been delivered to a recipient in ‘Lakewood, Co.’ on
November 6, 2018.
Regardless, Jenkins did not present that evidence until after the dis-
trict court had closed the case. And “because our review is confined to an
examination of materials before the lower court at the time the ruling was
made[,] subsequent materials are irrelevant.” Nissho-Iwai, 845 F.2d at 1307.
Thus, the success of Jenkins’s appeal rises and falls on the evidence and con-
tentions in the filings submitted before the final judgment. There, we find
nothing more than conclusory statements. Allegations such as “it’s a matter
of record that plaintiff did file his Standard Form 95 with the defendant” are
speculative and conclusory. Even when viewed with the deference to which
Jenkins is entitled, bare allegations cannot support a finding that he properly
exhausted. Without such a showing, he has not established federal question
jurisdiction.1
The judgment of dismissal without prejudice was correct and is
AFFIRMED.
1
Jenkins provides no other tenable basis for federal jurisdiction. His claim that he
has diversity jurisdiction is without merit—from the face of the pleadings, all parties are in
Louisiana. Jenkins’ only assertion to the contrary is that “although TriWest does business
in Louisiana, it’s [sic] corporate Headquarters is in Arizona.” But even if that is true,
diversity jurisdiction requires complete diversity—“no party on one side may be a citizen
of the same State as any party on the other side”—and Jenkins has made no showing that
the other plaintiffs are diverse. Mas v. Perry, 489 F.2d 1396, 1398–99 (5th Cir. 1974); see
also 28 U.S.C. § 1332.
4