Semien v. United States ( 2021 )

Case: 19-41061 Document: 00515759493 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-41061
February 26, 2021
Summary Calendar
Lyle W. Cayce
Clerk
Erwin Eugene Semien,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
No. 1:18-CV-512
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Erwin Semien, federal prisoner #05695-078, appeals the dismissal, for
want of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), of his
complaint per the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671et seq. Semien maintains that the district court erred in determining that it
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 19-41061 Document: 00515759493 Page: 2 Date Filed: 02/26/2021
No. 19-41061
lacked jurisdiction because he failed to exhaust his administrative claim that
a prison employee negligently caused his shoulder injury and the persons
responsible for his medical care were not government employees.
We review de novo a Rule 12(b)(1) dismissal for lack of subject matter
jurisdiction. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). As
a jurisdictional prerequisite under the FTCA, a claimant must exhaust his
claim administratively before suing by giving notice of the claim to the appro-
priate federal agency. § 2675(a); Cook v. United States ex rel. United States
Dep’t of Labor, 978 F.2d 164, 165−66 (5th Cir. 1992). An administrative griev-
ance must contain sufficient detail to give prison officials fair notice of the
problem that will form the basis of the intended lawsuit plus an opportunity
to address the problem. Johnson v. Johnson, 385 F.3d 503, 516−17 (5th Cir.
2004).
When making an administrative claim, a plaintiff is not required to
enumerate legal theories of recovery specifically. Life Partners Inc. v. United
States, 650 F.3d 1026, 1030 (5th Cir. 2011). “As long as the Government’s
investigation of [the] claim should have revealed theories of liability other
than those specifically enumerated therein, those theories can properly be
considered part of the claim.” Id. (internal quotation marks and citation
omitted).
Semien’s complaint alleged that while housed at FCC Beaumont, he
suffered a torn rotator cuff when he fell from a broken chair that the Bureau
of Prisons (“BOP”) negligently failed to maintain. His administrative claim,
however, urged claims concerning injury caused by negligent medical care.
The administrative claim failed to provide sufficient facts to alert the BOP of
the negligence of a prison employee with regard to the chair or to allow for
the investigation of such a claim. See Johnson v. Johnson, 385 F.3d 503,
516−17 (5th Cir. 2004). The district court therefore did not err in concluding
2
Case: 19-41061 Document: 00515759493 Page: 3 Date Filed: 02/26/2021
No. 19-41061
that Semien had failed to exhaust his claim that the chair had been negligently
maintained.
Semien contends that the district court erred in finding that none of
his medical treatment was provided by government employees. The FTCA
provides for a waiver of the United States’ immunity from suit for those
claims regarding “injury or loss of property, or personal injury or death
arising or resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment . . . .” § 2679(b)(1). Although the United States has consented
to be sued under the FTCA, such consent does not extend to the acts of
independent contractors. See Broussard v. United States, 989 F.2d 171, 174
(5th Cir. 1993). The critical factor in determining whether an individual is an
employee of the government or of an independent contractor is the power of
the government to control that person’s detailed physical performance. See
Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998).
The government produced affidavit testimony that medical care at
FCC Beaumont was provided by an independent contractor, League Medical
Concepts, LLC (“LMC”), under a comprehensive managed health care con-
tract; no BOP personnel provided medical care to Semien at FCC Beaumont.
See Den Norske Stats Oljeselskap As v. HeereMac V.O.F., 241 F.3d 420, 424
(5th Cir. 2001); Menchaca v. Chrysler Credit Corp. 613 F.2d 507, 511 (5th Cir.
1980). Semien has produced no competing evidence that the contract per-
mitted the BOP to control the detailed performance of LMC or its employees
such that the district court’s finding was erroneous. See Linkous, 142 F.3d
at 275.
Semien’s contention that the district court impermissibly reached the
merits of his tort claim is incorrect. The finding regarding the status of LMC
as an independent contractor went to the issue of jurisdiction insofar as the
3
Case: 19-41061 Document: 00515759493 Page: 4 Date Filed: 02/26/2021
No. 19-41061
government’s immunity from suit does not extend to the acts of independent
contractors, see Broussard, 989 F.2d at 174, and dismissal for lack of subject
matter jurisdiction is not a determination on the merits of the underlying tort
claim, see Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Al-
though Semien posits, for the first time on appeal, that the United States is
liable for knowingly and willfully placing him in the substandard care of inde-
pendent contractors, “[a]rguments not raised before the district court are
waived and cannot be raised for the first time on appeal.” LeMaire v. La.
Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).
Semien contends that the district court abused its discretion in deny-
ing his two requests for appointment of counsel. We review for abuse of dis-
cretion the denial of a motion for appointment of counsel. See Cupit v. Jones,
835 F.2d 82, 86 (5th Cir. 1987). An FTCA complainant “has no right to the
automatic appointment of counsel.” See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). An indigent plaintiff is not entitled to the appointment
of counsel unless the case presents exceptional circumstances. Id. The exis-
tence of exceptional circumstances depends on the type and complexity of
the case and the abilities of the person litigating it. Branch v. Cole, 686 F.2d
264, 266 (5th Cir. 1982). Our review of the pleadings in this routine negli-
gence case establishes that Semien was not unduly hindered in presenting his
case without counsel and, therefore, that the district court did not abuse its
discretion. See Ulmer, 691 F.2d at 213.
AFFIRMED.
4