UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51006
Summary Calendar
WILLIAM LOGAN KENNEDY,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(A-99-CV-636-JN)
June 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
William Logan Kennedy, formerly a federal prisoner, appeals,
pro se, the summary-judgment dismissal of his Federal Tort Claims
Act action, which claimed he received negligent medical treatment
while in prison. A summary judgment is reviewed de novo. See
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.
1996).
The United States is liable for its torts if a private person
would be liable for the same act or omission under local laws. 28
U.S.C. § 1346(b). Under the FTCA, liability for medical
*
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this opinion should not be published and is not precedent except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.
malpractice is controlled by state law. See Ayers v. United
States, 750 F.2d 449, 452 n.1 (5th Cir. 1985); see also Urbach v.
United States, 869 F.2d 829, 831 (5th Cir. 1989).
A plaintiff in a Texas medical malpractice action must prove
four elements to establish liability: “(1) a duty owed by the
defendant to the plaintiff, (2) a breach of that duty, (3) actual
injury to [the] plaintiff, and (4) ... the breach [was] a proximate
cause of the injury”. Id. A physician has a duty to render care
to a patient with the degree of ordinary prudence and skill
exercised by physicians of similar training and experience in the
same or similar community under the same or similar circumstances.
Speer v. United States, 512 F. Supp. 670, 675 (N.D. Tex. 1981),
aff’d on basis of district court’s opinion, 675 F.2d 100 (5th Cir.
1982). Texas tort law “places the burden of proof on the plaintiff
to establish by expert testimony that the act or omission of the
defendant physician fell below the appropriate standard of care and
was negligent”. Rodriguez v. Pacificare of Texas, Inc., 980 F.2d
1014, 1020 (5th Cir.), cert. denied, 508 U.S. 956 (1993).
The summary-judgment dismissal was appropriate because Kennedy
failed to prove any breach of care. The Government presented the
affidavit testimony of a medical expert opining that the treatment
Kennedy had received was consistent with the standard of care owed
him, and Kennedy offered no competent evidence by a medical expert
to counter the Government’s evidence which would have created a
material fact issue regarding breach and, thereby, precluding
summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-
2
24 (1986); see also Rodriguez, 980 F.2d at 1020. Kennedy’s
conclusional assertions of negligence were insufficient to carry
his summary-judgment burden. See Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). Furthermore, his
conclusional allegations, for the first time on appeal, that Dr.
Tew’s affidavit contained errors and perjury and was thus not
competent summary judgment evidence, are insufficient to carry his
summary-judgment burden, id., even if we could consider arguments
raised for the first time on appeal, Bayou Liberty Ass’n, Inc. v.
United States Army Corps of Eng’rs, 217 F.3d 393, 398 (5th Cir.
2000).
Kennedy asserts that the district court erred in failing to
order Officer Dyer, his prison work supervisor, to submit an
affidavit and moves this court to order the requested affidavit.
His argument is without merit, and his motion is DENIED, because
the Officer’s testimony would be irrelevant to the dispositive
question (whether the prison medical staff breached the duty of
care owed Kennedy) in that the Officer is not a medical expert.
See Rodriguez, 980 F.2d at 1020.
Kennedy additionally contends that the district court erred in
failing to appoint a medical expert and counsel to assist him in
the preparation of his case. Because he has made no showing of
indigence or of his inability to locate and retain an expert, he
has not demonstrated that the district court abused its discretion
in denying the motion for an expert. See United States v. Walborn,
730 F.2d 192, 194 (5th Cir.), cert. denied, 469 U.S. 842 (1984).
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Kennedy has similarly failed to show that the district court erred
in denying his motion for counsel because his case does not present
any exceptional circumstances warranting the appointment of
counsel. See Richardson v. Henry, 902 F.2d 414, 417 (5th Cir.),
cert. denied, 498 U.S. 901 (1990); Ulmer v. Chancellor, 691 F.2d
209, 213 (5th Cir. 1982).
Kennedy’s remaining contentions — that the district court
erred in construing his claims as medical-malpractice rather than
negligence and that “there was something prejudicial” about the
district court having assigned aspects of his case to two
magistrate judges — are facially frivolous.
JUDGMENT AFFIRMED; MOTION DENIED
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