Sophocleous v. Lawrence Memorial Hospital

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 12, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TO NYA SOPHOCLEO US,
Plaintiff-Appellant,
v. No. 07-3147
(D.C. No. 07-CV-4029-RDR)
LA W REN CE M EM O RIA L (D . Kan.)
HO SPITAL,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.
Plaintiff-Appellant Tonya Sophocleous, proceeding pro se, appeals from the
dismissal of her medical malpractice claims by the District Court for the District
of K ansas. W e have jurisdiction under 28 U .S.C. § 1291. Construing M s.
Sophocleous’s filings liberally, 1 we conclude that the district court correctly
*
This Order and Judgment is not binding precedent, except under the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. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
1
Because M s. Sophocleous is proceeding pro se, we review her
pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
dismissed her claims for lack of subject matter jurisdiction and failure to state a
claim for which relief could be granted. Accordingly, we AFFIRM the district
court’s order of dismissal.
I. BACKGROUND
M s. Sophocleous alleges that on February 9, 2007, she went to the
emergency room at Lawrence M emorial Hospital and was diagnosed with a
stomach flu. She returned the next day “in a great amount of pain” and was
diagnosed with an ovarian cyst. R., Doc. 1, at 3. She sued for medical
malpractice, seeking damages of $150 billion and a court order to force the
hospital to treat her. The district court dismissed for lack of subject matter
jurisdiction and for failure to state a claim for which relief could be granted. M s.
Sophocleous timely filed a notice of appeal.
II. D ISC USSIO N
W e review the district court’s grant of a motion to dismiss de novo.
Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1139 (10th Cir. 2006).
M s. Sophocleous bears the burden of proof when invoking federal jurisdiction.
M arcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999).
Diversity jurisdiction under 28 U .S.C. § 1332 is unavailable because M s.
Sophocleous acknowledges that both she and the hospital are citizens of Kansas.
Federal question jurisdiction under 28 U.S.C. § 1331 depends on a right of action
under some federal law. No federal law was mentioned in the complaint, and
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those mentioned before the district court and on appeal do not provide for rights
of action in this situation.
M s. Sophocleous relies primarily on the Emergency M edical Treatment and
Active Labor Act (“EM TALA”), 42 U.S.C. § 1395dd, which is “neither a federal
malpractice nor a negligence statute.” Scott v. Hutchinson Hosp., 959 F. Supp.
1351, 1357 (D. Kan. 1997). Her allegations do not support claims that would be
cognizable under EM TALA, such as “failing to conduct an appropriate medical
screening” or “failing to further examine and treat a person whom the hospital has
determined has an emergency medical condition.” Id.M s. Sophocleous’s unsupported citation of the Fifth Amendment for the
first time on appeal will not create a federal question here. See Cum mings v.
Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (noting the “general rule that issues
not raised below are waived on appeal”). And while 28 U.S.C. § 1343 provides
jurisdiction over civil rights claims, M s. Sophocleous has not alleged any facts
that would give rise to a legally-cognizable civil rights violation. Therefore, the
district court correctly dismissed these claims for lack of jurisdiction and failure
to state a claim for which relief could be granted. 2
2
The district court found that dismissal of M s. Sophocleous’s state
law claims also was appropriate because she failed to comply with the notice
requirement of Kansas Statutes Annotated § 12-105b(d). See generally Kan. Stat.
Ann. § 12-105b(d) (“No person may initiate an action against a municipality
unless the claim has been denied in whole or part [after notice is filed].”) On
appeal, it is not clear whether M s. Sophocleous challenges this district court
(continued...)
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Accordingly we AFFIRM the district court’s order dismissing M s.
Sophocleous’s complaint.
Entered for the Court
Jerome A. Holmes
Circuit Judge
2
(...continued)
ruling. Indeed, M s. Sophocleous asserts that the district court “erred” in
misinterpreting her complaint as being founded on state law claims. See Aplt. Br.
at 2. In any event, we need not reach this issue because, even if notice were
properly given, the district court would have been without jurisdiction to hear any
of M s. Sophocleous’s state law claims.
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