Gerardo Esquivel-Solis v. USA , 472 F. App'x 338 ( 2012 )

Case: 11-10401 Document: 00511918864 Page: 1 Date Filed: 07/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2012
No. 11-10401
Summary Calendar Lyle W. Cayce
Clerk
GERARDO ESQUIVEL-SOLIS,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA; GLEN BALINAO; D.D.S. JOHN
CARPENTER; THE CORNELL COMPANIES, INCORPORATED,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CV-293
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Gerardo Esquivel-Solis, federal prisoner # 65064-179, filed a pro se civil
rights complaint pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), alleging that defendants Glen Balinao,
John Carpenter, and The Cornell Companies, Inc., were deliberately indifferent
to his medical needs. His complaint also alleged claims pursuant to the Federal
Tort Claims Act (FTCA) against the United States. The district court dismissed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-10401
the deliberate-indifference claims with prejudice as frivolous and dismissed the
FTCA claims without prejudice on the ground that Esquivel-Solis had not named
the United States as the sole defendant.
As an initial matter, Esquivel-Solis does not set forth any factual or legal
arguments regarding his claim that the defendants were deliberately indifferent
to his serious medical needs by failing to provide effective treatment for the pain
and swelling that he sustained after an improperly performed dental procedure.
Because he has failed to contest the district court’s disposition of his deliberate-
indifference claim, he has abandoned the issue on appeal. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, we affirm the district court’s
dismissal with prejudice of Esquivel-Solis’s claim that he was subjected to cruel
and unusual punishment in the form of deliberate indifference to his serious
medical needs.
The district court dismissed without prejudice Esquivel-Solis’s FTCA
claims on the basis that the claims could not be asserted in the same complaint
as his Bivens claims and that he had to file a separate FTCA action exclusively
naming the United States as a defendant. He contends that the district court’s
conclusion was erroneous and that clearly established law provides that he may
allege Bivens claims and FTCA claims in the same proceeding. Esquivel-Solis
alleges that the denial of his FTCA claims without prejudice effectively bars him
from raising those claims in a new complaint because the statute of limitations
for the claims has expired. See 28 U.S.C. § 2401(b) (noting that limitation period
under the FTCA is two years from the time the claim accrued or six months from
the time that the agency mails its final denial of the claim).
The FTCA confers on federal courts exclusive jurisdiction of civil actions
on claims against the United States for money damages for personal injury
caused by the negligent or wrongful acts or omissions of any federal employee
while acting within the scope of his office or employment. 28 U.S.C. § 1346(b)(1).
FTCA claims may be brought against only the United States, and not the
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No. 11-10401
agencies or employees of the United States. See 28 U.S.C. §§ 2671, 2679; Galvin
v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). An FTCA claim brought against a
federal agency or employee rather than the United States shall be dismissed for
want of jurisdiction. See Galvin, 860 F.2d at 183; see also Atorie Air, Inc. v.
Federal Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991) (concluding that all
defendants in an FTCA action other than the United States were properly
dismissed for lack of jurisdiction).
However, contrary to the district court’s determination, our case law does
not set forth that a plaintiff must pursue a separate action alleging FTCA claims
against the United States or that FTCA claims against the United States may
not be alleged along with non-FTCA claims against other parties. Instead, our
case law establishes only that FTCA claims must be alleged exclusively against
the United States, i.e., an FTCA claim will be cognizable – regardless of the
other parties or additional claims involved in the proceeding – if the United
States is the sole party against whom the claim is brought. See Galvin, 860 F.2d
at 183; Atorie, 942 F.2d at 957-58. Where a plaintiff has alleged an FTCA claim
solely against the United States, we will consider the FTCA claims as well as
any non-FTCA claims alleged in the same proceeding against other parties. See
Bennett v. Barnett, 210 F.3d 272, 274-77 (5th Cir. 2000).
Here, Esquivel-Solis named the United States as the exclusive party
against which he was raising FTCA claims. Thus, the district court erroneously
concluded that Esquivel-Solis’s FTCA claims were subject to dismissal without
prejudice. See Galvin, 860 F.2d at 183; Atorie, 942 F.2d at 957-58. Because the
district court incorrectly found that it could not consider Esquivel-Solis’s FTCA
claims and dismissed the claims without considering their merits in the first
instance, we vacate the district court’s dismissal without prejudice of the FTCA
claims and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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