Gurrola v. United States , 104 F. App'x 962 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 15, 2004
Charles R. Fulbruge III
Clerk
No. 03-51073
Summary Calendar
SAMUEL A. GURROLA,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CV-335-DB
Before JONES, DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Samuel Gurrola appeals the denial of relief on his
Federal Tort Claims Act (FTCA) action, in which he alleged claims
of medical malpractice, invasion of privacy, failure to report an
assault, and the provision of medical care without obtaining
informed consent. He asserts that the Government wrongly
*
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opinion should not be published and is not precedent except under the limited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.
appropriated Gurrola’s medical records and disseminated them to
third parties. In the district court, he asked the court to stop
the defendants from engaging in these activities, and the district
court denied the motion. This request was in the nature of a
request for an injunction, and the district court did not abuse its
discretion in denying the motion. White v. Carlucci, 862 F.2d
1209, 1211 (5th Cir. 1989). Gurrola is not entitled to relief on
his contention that the district court wrongly concluded that he
was authorized to receive medical care at an Army hospital.
Gurrola contends that the district court should have
ordered the Government to turn over a document to him. The
district court did not abuse its discretion in denying the
discovery request. See Moore v. Willis Indep. Sch. Dist., 233 F.3d
871, 876 (5th Cir. 2000).
Gurrola contends that the district court erred in
dismissing his malpractice claims as barred by the applicable two-
year limitations period. He has not established that the district
court erred in dismissing his claims on these grounds. See
MacMillan v. United States, 46 F.3d 377, 381 (5th Cir. 1995);
Shanbaum v. United States, 32 F.3d 180, 182 (5th Cir. 1994). To
the extent that Gurrola’s motion for protective order and response
to the defendants’ motion for a summary judgment included an
implicit motion to amend his complaint to add other theories of
malpractice and other instances of assault and wrongdoing on behalf
of the Government, he has not shown that the district court abused
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its discretion in its implicit denial of those motions. See Parish
v. Frazier, 195 F.3d 761, 764 (5th Cir. 1999).
Gurrola contends that officers of the Government invaded
his privacy by conducting an illegal search and seizure, which
resulted in the removal of blood samples and a psychological
diagnosis of Gurrola. This is a new theory of relief raised for
the first time on appeal, and this court will not consider it. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
Gurrola asserts that the doctors who treated him had a
duty under Texas law to inform the appropriate authorities of
assaults that Gurrola had suffered. Texas state law does not
authorize a cause of action by the victim of such an assault
against the medical care providers, and the claim is therefore not
cognizable under the FTCA. See TEX. HEALTH & SAFETY CODE ANN.
§ 161.132; Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989).
Gurrola contends that the doctors who diagnosed his
psychological condition were required to advise him of the risks
involved in such medical care. Because he has not established a
physician/patient relationship with those doctors, the district
court did not err in granting summary judgment. See Fraire v. City
of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992); TEX. CIV. PRAC. &
REM. CODE §§ 74.001(a)(19), 74.101; Salas v. Gamboa, 760 S.W.2d 838,
840 n.1 (Tex. App. 1988).
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Gurrola asserts that the district court erred in not
properly amending the caption of the case. This assertion is
frivolous, and Gurrola has not established that he is entitled to
relief on this ground. The judgment of the district court is thus
AFFIRMED.
Gurrola has also moved to depose a government employee or
alternatively requests the court to compel the witness to submit an
affidavit. This motion is DENIED.
AFFIRMED; MOTION DENIED.
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