Lopez-Heredia v. University of Texas Medical Branch Hospital , 240 F. App'x 646 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 6, 2007
Charles R. Fulbruge III
Clerk
No. 05-11365
Summary Calendar
ROMUALDO LOPEZ-HEREDIA,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL; JOHN DOE #1, M.D.
Galveston; JOHN DOE #2-10; DR. SHAH, Opthalmologist; DR. JORGE L.
PARTIDA, Chief Health Programmer; JOSEPH HARO, Warden, Federal
Correctional Institution, Big Spring; BUREAU OF PRISONS; JOHN
ASHCROFT, U.S. ATTORNEY GENERAL, Individually and in his Official
Capacity,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:04-CV-14
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Romualdo Lopez-Heredia (Lopez), federal prisoner # 51575-
198, appeals from the dismissal as frivolous, pursuant to
28 U.S.C. § 1915A and 42 U.S.C. § 1997e, of his action brought
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims
Act (FTCA), 28 U.S.C. §§ 2671-80. Lopez makes no arguments
*
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this opinion should not be published and is not precedent except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. 05-11365
-2-
relevant to the dismissal of his Bivens claims; he has abandoned
any such arguments for appeal. See In re Municipal Bond
Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir. 1982).
Lopez contends that the physician defendants were agents of
the Government for purposes of the FTCA and that the duty imposed
on the Bureau of Prisons (BOP) by 18 U.S.C. § 4042 to care for
prisoners extends the scope of the FTCA to include the physician
defendants. The FTCA’s wavier of sovereign immunity does not
extend to negligent acts of independent contractors such as the
University of Texas Medical Branch (UTMB) or contract physicians.
See Linkous v. United States, 142 F.3d 271, 275-77 (5th Cir.
1998). Lopez’s contention that the independent-contractor
physician defendants in his case were agents of the Government is
unavailing.
Assuming, arguendo, that Dr. Jorge Partida was a federal
employee, then recovery from the United States might be possible
under to the FTCA. See Bodin v. Vagshenian, 462 F.3d 481, 484
(5th Cir. 2006); Gil v. Reed, 381 F.3d 649, 658 (7th Cir. 2004).
The BOP’s FTCA claims procedure is separate from the BOP’s
administrative remedies procedure, see 28 C.F.R.
§§ 543.30-543.32. A plaintiff must exhaust administrative
remedies before pursuing relief under the FTCA. 28 U.S.C.
§ 2675(a); Frantz v. United States, 29 F.3d 222, 224 (5th Cir.
1994). We need not determine whether Lopez exhausted his FTCA
No. 05-11365
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administrative remedies, as his FTCA claim against Dr. Partida is
unavailing on its merits.
Under Texas law, which applies to Lopez’s FTCA claim,
Cleveland v. United States, 457 F.3d 397, 403 (5th Cir. 2006),
Dr. Shah’s alleged negligence in tearing Lopez’s stitches while
examining his eye was a “superseding cause” that “destroy[ed]
[any] causal connection between the negligent act or omission of
[Dr. Partida] and the injury complained of, and thereby [became]
the immediate cause of such injury.” Taylor v. Carley, 158
S.W.3d 1, 9 (Tex. App. 2004). Lopez therefore could not recover
from Dr. Partida based on the referral to Dr. Shah. Lopez’s
complaint states no other basis for recovery based on Dr.
Partida’s alleged actions or omissions.
The magistrate judge’s dismissal of Lopez’s action
constitutes a strike for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). We warn
Lopez that if he accumulates three strikes, he will be barred
under § 1915(g) from proceeding in forma pauperis in a civil
action or an appeal unless he is under imminent danger of serious
physical injury.
AFFIRMED. SANCTION WARNING ISSUED.