Self v. United States ( 2022 )

Case: 20-10388 Document: 00516210001 Page: 1 Date Filed: 02/21/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 21, 2022
No. 20-10388
Lyle W. Cayce
Summary Calendar Clerk
Eugene Self,
Plaintiff—Appellant,
versus
United States of America,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-666
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
Proceeding pro se, Eugene Self, federal prisoner # 76522-080, filed this
action pursuant to the Federal Tort Claims Act (FTCA), contending
healthcare providers committed medical malpractice by failing to provide eye
care in a timely and proper manner. The Government moved for summary
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10388 Document: 00516210001 Page: 2 Date Filed: 02/21/2022
No. 20-10388
judgment, based on Self’s failure to designate an expert to support his claims.
Self filed an untimely response to the summary-judgment motion, asking the
court to: appoint an expert witness, pursuant to Federal Rule of Evidence
706; appoint counsel; and grant his request for a jury trial. The district court
denied Self’s motions, granted the Government’s summary-judgment
motion, and dismissed Self’s complaint. Continuing pro se on appeal, Self
asserts the court: erred in awarding the Government summary judgment;
and abused its discretion in denying his motion for appointment of an expert.
In considering a summary judgment, review is de novo. E.g., Nickell v.
Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary
judgment is proper if “there is no genuine dispute as to any material fact and
the movant it entitled to judgment as a matter of law”. Id. (citing Fed. R.
Civ. P. 56(a)). In seeking summary judgment, movant must establish there
is no genuine dispute of material fact. E.g., Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010). Movant is not required “to negate the elements of
the nonmovant’s case”. Id. Rather, if movant meets this initial burden, the
burden shifts to nonmovant to set forth specific evidence to support his
claims. Id.Regarding his summary-judgment challenge, Self asserts the court
erred in: failing to liberally construe his pleadings and view them in a
favorable manner; holding him to the same standards as an attorney;
requiring him to produce an expert when he is a pro se litigant; and not
permitting him to amend his complaint. In the light of this, he contends the
court acted in a biased manner. Finally, he maintains the court should have
construed his complaint as raising a constitutional claim under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
rather than a claim under the FTCA.
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Nothing in the record supports Self’s judicial-bias claim. See United
States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007) (explaining “[a]dverse
judicial rulings will support a claim of bias only if they reveal an opinion based
on an extrajudicial source or if they demonstrate such a high degree of
antagonism as to make fair judgment impossible”). Moreover, although for
pro se litigants the label of the complaint is not determinative, and a court may
recharacterize “according to the essence of the prisoner’s claims”, Solsona
v. Warden, F.C.I., 821 F.2d 1129, 1132 n.1 (5th Cir. 1987), the record does not
support Self’s claims that the court failed to liberally construe his pleadings
or that he intended to assert a Bivens claim.
“State law controls liability for medical malpractice under the
FTCA.” Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008). Self
alleges the claimed malpractice occurred in Indiana and continued in Texas.
The laws of both states required him to present expert testimony to prove his
medical malpractice claim. See Hood v. Phillips, 554 S.W.2d 160, 165–66
(Tex. 1977) (explaining expert testimony required “[u]nless the mode or
form of treatment is a matter of common knowledge or is within the
experience of the layman”); Lusk v. Swanson, 753 N.E.2d 748, 753 (Ind. Ct.
App. 2001) (explaining “complex nature of medical diagnosis and
treatment” require expert testimony).
And, because Self did not present an expert witness, the court did not
err in granting summary judgment. See Hannah, 523 F.3d at 601–02
(explaining court properly granted summary judgment where pro se plaintiff
failed to present expert testimony); see also Outley v. Luke & Assocs., Inc., 840
F.3d 212, 217 & n.9 (5th Cir. 2016) (explaining pro se status does not excuse
plaintiff from meeting burden of presenting evidence to support claims).
Even assuming Self had a right to amend his complaint after the
Government moved for summary judgment and well after the deadline for
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No. 20-10388
filing amendments had passed, courts “need not grant a futile motion to
amend”. Legate v. Livingston, 822 F.3d 207, 211 (5th Cir. 2016). Given that
Self still had not located an expert at that time, granting him leave to amend
would have been futile.
Finally, denial of a motion for appointment of an expert is reviewed
for abuse of discretion. See id. at 600. Under Federal Rule of Evidence
706(a), the court may appoint an expert witness “to aid the court”. Id.; Fed.
R. Evid. 706(a). To the extent that Self, with the benefit of liberal
construction, challenges the denial of his motion for appointment of an
expert, under Rule 706, the court did not abuse its discretion. See Hannah,
523 F.3d at 600–01 (holding court did not abuse its discretion in denying
plaintiff’s request for expert).
AFFIRMED.
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