IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41216
Summary Calendar
WALI MUHAMMED,
Plaintiff-Appellant,
versus
WADLEY REGIONAL MEDICAL CENTER FOUNDATION,
doing business as Wadley Regional Medical Center;
ROBERT L. MACK, M.D., also known as Texarkana Radiology
Associates; DIRECTOR OF RADIOLOGY, Director of
Radiology at Wadley (Name Unknown),
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:97-CV-8
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October 22, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant (# 19148-009) Wali Muhammed filed this diversity
action against Wadley Regional Medical Center (Wadley) and its
Director of Radiology, Dr. Robert L. Mack. Muhammed alleged that
when he was a Wadley outpatient on or about March 30, 1995,
Associate Radiologist Dr. William R. Beaty negligently erred in
*
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that this opinion should not be published and is not precedent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.
No. 98-41216
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evaluating MRI results and in diagnosing his condition. This
allegedly resulted in Muhammed’s not being treated for his
illness and his becoming a paraplegic. Muhammed has sought to
hold Wadley and Dr. Mack liable for Dr. Beaty’s alleged
negligence.
The district court granted summary judgment to Dr. Mack on
all of Muhammed’s claims against him. The court granted summary
judgment to Wadley relative to one of Muhammed’s claims and
dismissed his other claims against Wadley. The court also denied
Muhammed’s belated motion to amend his pleading, to allege a
claim against Dr. Beaty. We AFFIRM the district court’s
judgment.
Muhammed contends that the district court reversibly erred
by dismissing his action as against Wadley. He asserts that the
primary issue is whether Wadley violated 42 U.S.C. § 1395dd,1 by
failing to provide the proper medical screening and diagnostic
testing and by releasing him before his condition stabilized.
Section 1395dd “was not intended to be used as a federal
malpractice statute, but instead was enacted to prevent ‘patient
dumping,’ which is the practice of refusing to treat patients who
are unable to pay.” Marshall v. East Carroll Parish Hosp. Serv.
Dist., 134 F.3d 319, 322 (5th Cir. 1998). “Accordingly, an
EMTALA ‘appropriate medical screening examination’ is not judged
1
Section 1395dd is known as the Emergency Medical
Treatment and Action Labor Act (EMTALA), and as the Anti-Dumping
Statute.
No. 98-41216
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by its proficiency in accurately diagnosing the patient’s
illness, but rather by whether it was performed equitably in
comparison to other patients with similar symptoms.” Id.
Muhammed never has suggested that Wadley discriminated
against him because he was unable to pay. Furthermore, he has
not suggested that his examination was not “performed equitably
in comparison to other patients with similar symptoms.”
Marshall, 134 F.3d at 322. Because there is no indication that
Muhammed could remedy these deficiencies if he were permitted to
amend his supplemental pleading, the district court did not err
by effectively dismissing his EMTALA claim with prejudice. See
Jacquez v. Procunier, 801 F.2d 789, 792-93 (5th Cir. 1986).
Muhammed contends that the district court violated Article
III of the Constitution by allowing the magistrate judge to rule
on Muhammed’s request to amend his complaint to allege the
§ 1395dd claim. This lacks merit because the magistrate judge
only recommended granting Wadley’s motion to strike his
supplemental pleading. The district court made the dispositive
ruling, upon adopting the magistrate judge’s initial report and
recommendation. This procedure was in accordance with 28 U.S.C.
§ 636(b)(1)(A) and the district court’s standard referral order.
Muhammed contends that the district court erred by granting
summary judgment to Dr. Mack, because several genuine issues of
material fact exist. As the district court held, Dr. Mack met
his burden to “point out the absence of evidence supporting the
No. 98-41216
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nonmoving party’s case.” Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 913 (5th Cir. 1992) (citation and quotation marks
omitted). Since Dr. Mack met his burden, he was entitled to
summary judgment unless Muhammed “[went] beyond the pleadings and
designate[d] specific facts showing that there is a genuine issue
for trial.” Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th
Cir. 1995). “To meet this burden, the nonmovant must identify
specific evidence in the record, and articulate the precise
manner in which that evidence support[s] [his] claim[s].” Stults
v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996) (citation and
quotation marks omitted).
However, Muhammed does not now attempt to show that he
presented sufficient proof in the district court to defeat Dr.
Mack’s motion for summary judgment. Muhammed does not even
advert to Dr. Mack’s evidence, which the district court found
sufficient to support summary judgment on his behalf.
Muhammed asserts that the district court erred by refusing
to permit discovery prior to ruling on summary judgment, without
specifying which ruling he is referring to. If Muhammed meant
this assertion to be a discrete appellate point, then he has
abandoned it by not briefing it. See Al-Ra’id v. Ingle, 69 F.3d
28, 33 (5th Cir. 1995).
Muhammed contends that the district court’s failure to issue
a scheduling order, pursuant to Fed. R. Civ. P. 16(b), was
reversible error. He is not entitled to relief on this point
No. 98-41216
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because he has failed to demonstrate how the absence of a
scheduling order may have prejudiced him, i.e., adversely
affected any of his substantial rights. See 28 U.S.C. § 2111
(harmless error).
Muhammed contends that he is entitled to relief because he
was denied mediation, the magistrate judge having denied his two
motions therefor. Because Muhammed did not appeal the magistrate
judge’s rulings to the district court, however, this court lacks
jurisdiction of his mediation claim. See Colburn v. Bunge
Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989).
Muhammed contends that the district court reversibly erred
by denying him leave to amend his complaint to add Dr. Beaty as a
defendant, on grounds that Dr. Beaty is an indispensable party;
the district court did not issue a scheduling order; and Dr.
Beaty is primarily responsible for Muhammed’s physical condition.
Muhammed also asserts conclusionally that none of the parties
would have suffered if the court had allowed the amendment.
Rule 15(a), Fed. R. Civ. P., states that “leave [to amend]
shall be freely given when justice so requires.” Whether “to
grant leave is within the discretion of the court, although if
the court lacks a substantial reason to deny leave, its
discretion is not broad enough to permit denial.” State of
Louisiana v. Litton Mortgage Co., 50 F.3d 1298, 1302-03 (5th Cir.
1995) (citations and quotation marks omitted).
No. 98-41216
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Rule 15(a) does not contain a “time limit for permissive
amendment, [but] [a]t some point[,] time delay on the part of a
plaintiff can be procedurally fatal. In such a situation, the
plaintiff must meet the burden of showing that the delay was due
to oversight, inadvertence, or excusable neglect. . . .” Id.
(citations and quotation marks omitted).
Muhammed filed his said motion to amend almost one year
after the two-year Texas statute of limitations for medical
malpractice had run. Tex. Rev. Civ. Stat. Ann. art. 4590i,
§ 10.01 (West Supp. 1999). Thus, if leave to amend were granted
and the amendment related back to the date of filing of the
complaint, a time-barred claim would be revived. Such a
relation-back would not be proper because “the institution of an
action against one [alleged tortfeasor would not serve] to
provide notice of the litigation to the other,” and because
Muhammed did not make any mistake concerning Dr. Beaty’s identity
as having participated in the relevant episode. See Jacobsen v.
Osborne, 133 F.3d 315, 320-22 (5th Cir. 1998).
Furthermore, Muhammed has not attempted to explain why he
delayed so long. Nor has he attempted to explain why he omitted
to include a claim against Dr. Beaty in the two amended pleadings
which the district court allowed him to file. See Whitaker v.
City of Houston, Texas, 963 F.2d 831, 836 (5th Cir. 1992).
Finally, Dr. Beaty was not an indispensable party, as
Muhammed asserts he was. See Fed. R. Civ. P. 19(a).
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Accordingly, the district court did not abuse its discretion in
denying Muhammed leave to amend to allege a claim against Dr.
Beaty. See Litton Mortgage Co., 50 F.3d at 1302-03; Jacobsen,
133 F.3d at 320-22. Whitaker, 963 F.2d at 836.
JUDGMENT AFFIRMED.