Wall v. Tanner Clinic ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 26, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JARED WALL,
Plaintiff - Appellant,
v. No. 17-4028
(D.C. No. 1:16-CV-00046-DB)
TANNER CLINIC; MARC ANDERSON, (D. Utah)
M.D.; TANNER CLINIC LABS;
THERON STOKER, COO; TANNER
CLINIC RADIOLOGY; MARSHALL A.
McKINNON, CEO; JASON KIRKHAM,
M.D.,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges.
_________________________________
Jared Wall appeals the district court’s dismissal of his pro se complaint for
lack of jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Wall filed a complaint in federal court against the Tanner Clinic, along with
several of its employees and related entities, alleging medical malpractice. On his
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
civil cover sheet, he indicated that all parties are Utah residents and checked a box
for federal question jurisdiction. The defendants filed motions to dismiss for lack of
subject matter jurisdiction. In his response to those motions, Wall complained that a
similar lawsuit he previously filed in state court was dismissed for failure to comply
with the Utah Health Care Malpractice Act, Utah Code § 78B-3-412. Related to
these complaints, he referenced his right to due process under the U.S. and Utah
Constitutions. A magistrate judge recommended that the complaint be dismissed for
lack of jurisdiction. After Wall failed to file objections, the district court adopted the
recommendation. Wall timely appealed.
We review de novo a district court’s dismissal for lack of subject matter
jurisdiction. Pueblo of Jemez v. United States, 790 F.3d 1143, 1151 (10th Cir.
2015).1 “A federal court’s jurisdiction must clearly appear from the face of a
complaint . . . .” Whitelock v. Leatherman, 460 F.2d 507, 514 (10th Cir. 1972). We
agree with the district court that Wall’s complaint fails to allege any basis for
jurisdiction. He does not claim that the parties are diverse, see 28 U.S.C. § 1332, and
he indicated on his civil cover sheet that all parties are Utah citizens. Nor does the
complaint state a substantial federal question; it merely alleges a state law medical
malpractice claim. See Nicodemus v. Union Pac. Corp., 440 F.3d 1227, 1232 (10th
1
Failure to timely object to a magistrate judge’s report and recommendation
generally waives appellate review. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th
Cir. 2008). But this rule is subject to an “interests of justice” exception. Id. Wall
claims that his medical condition rendered him unable to file a timely objection. We
will assume, in the interest of judicial economy, that his explanation supports
application of the exception.
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Cir. 2006) (jurisdiction proper under 28 U.S.C. § 1331 if “complaint establishes
either that federal law creates the cause of action or that the plaintiff’s right to relief
necessarily depends on resolution of a substantial question of federal law”). On
appeal, as in his response to the defendants’ motions to dismiss, Wall mentions his
constitutional right to due process. But these vague references do not change the fact
that his complaint, even when construed liberally, see Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991), fails to allege a federal question, see Whitelock, 460
F.2d at 514.
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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