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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13395
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-00577-CG-B
DONNA GIBSON,
Plaintiff-Appellant,
versus
JAY YORK,
TODD VOLKMAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Alabama
________________________
(June 23, 2014)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
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Donna Gibson, proceeding pro se, appeals the district court’s grant of
attorney Jay York’s and Dr. Todd Volkman’s motions to dismiss Gibson’s
complaint filed under 42 U.S.C. §§ 1983, 1984, and 1985, alleging violations of
the Sixth, Eighth, and Fourteenth Amendments against York, and violations of the
Eighth and Fourteenth Amendments against Volkman. On appeal, Gibson argues
that the district court erred in dismissing her complaint as to York for failure to
state a claim on which relief could be granted and lack of subject matter
jurisdiction, because York violated her Sixth and Fourteenth Amendment rights by
preventing her from receiving a jury trial and failing to adequately represent her in
her underlying workers’ compensation case. As to Volkman, she argues that the
district court erred in dismissing her complaint for failure to state a claim, because
his treatment of her exhibited deliberate indifference to her serious medical needs
and he violated his professional code of conduct by telling York that her injuries
were not work related.
I.
We review a district court’s order granting a motion to dismiss for lack of
subject matter jurisdiction de novo, viewing the facts in the light most favorable to
the plaintiff. Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (1998). The
burden of establishing federal subject matter jurisdiction lies with the party
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asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).
We review a district court’s dismissal for failure to state a claim de novo.
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The district court must view
the complaint in the light most favorable to the plaintiff, and all of the plaintiff’s
well-pleaded facts are accepted as true. Am. United Life Ins. Co. v. Martinez, 480
F.3d 1043, 1057 (11th Cir. 2007).
Subject matter jurisdiction in federal court can be established through either
federal question jurisdiction, under 28 U.S.C. § 1331, or diversity jurisdiction,
under 28 U.S.C. § 1332. Section 1331 provides that “[t]he district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. A claim that purports to arise
under the Constitution or a federal statute may be dismissed if (1) the alleged claim
“clearly appears to be immaterial and made solely for the purpose of obtaining
jurisdiction,” or (2) “such a claim is wholly insubstantial and frivolous.” Blue
Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998)
(quotations omitted).
Under 28 U.S.C. § 1367(a), federal courts also have “the power to exercise
supplemental jurisdiction over all claims that arise out of a common nucleus of
operative fact with a substantial federal claim.” Upper Chattahoochee Riverkeeper
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Fund, Inc. v. City of Atlanta, 701 F.3d 669, 678 (11th Cir. 2012). However, we
encourage district courts to dismiss any remaining state claims when the federal
claims have all been dismissed prior to trial. Raney v. Allstate Ins. Co., 370 F.3d
1086, 1089 (11th Cir. 2004).
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may
move to dismiss a complaint based on the defendant’s “failure to state a claim
upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss under Rule 12(b)(6), a plaintiff must present factual allegations “enough to
raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Once a claim
has been sufficiently stated, “it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563, 127 S.Ct. at 1969. “A
pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotations, alteration, and
citation omitted).
Access to the courts is a right grounded in several constitutional
amendments, including the First, Fifth, and Fourteenth Amendments. Chappell v.
Rich, 340 F.3d 1279, 1282 (11th Cir. 2003). To assert such a claim, the plaintiff
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must possess a non-frivolous, arguable underlying cause of action, the presentation
of which was prevented by the defendant. Barbour v. Haley, 471 F.3d 1222, 1226
(11th Cir. 2006).
Under Alabama law, “[i]n case of a dispute between employer and
employee . . . [t]he controversy shall be heard and determined by the judge who
would hear and determine a civil action between the same parties arising out of
tort.” Ala. Code § 25-5-81(a)(1). “When willful misconduct on the part of the
employee is set up by the employer, . . . the employer may, upon appearing,
demand a jury to hear and determine, under the direction of the court, the issues
involved in this defense.” Id. § 25-5-81(a)(2).
The district court did not err in granting York’s motion to dismiss based on
failure to state a claim and lack of subject matter jurisdiction. First, Gibson failed
to state a claim against York for violation of her constitutional rights, specifically
the right of access to the courts. Under Alabama law, employment disputes such
as Gibson’s workers’ compensation claim against her employer, Rooms-to-Go,
Inc. (“Rooms-to-Go”), are tried before a judge, not a jury, unless the defendant
asserts a defense of willful misconduct. Ala. Code § 25-5-81(a)(1), (2). Rooms-
to-Go did not assert a willful misconduct defense in its answer and at no time
before the district court or on appeal has Gibson alleged that Rooms-to-Go
otherwise asserted such a defense. Even accepting her other allegations as true,
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York could not possibly have prevented her from receiving a jury trial because
under Alabama law she was not entitled to have her case heard by a jury. She
cannot assert an access-to-the-courts claim because Alabama law, not York,
prevented the presentation of her underlying workers’ compensation action to a
jury. See Barbour, 471 F.3d at 1226.
Second, Gibson failed to meet her burden of establishing federal subject
matter jurisdiction over her remaining claims, which are based on alleged
deficiencies in York’s representation of her during her workers’ compensation
case. In addition to her access-to-the-courts claim, her complaint against York
referenced the Sixth, Eighth, and Fourteenth Amendments. However, she did not
indicate in her complaint or in her response to York’s motion to dismiss how his
alleged actions violated any of these amendments or any federal statute. She cites
only to the Alabama Legal Services Liability Act and the Rules of Professional
Conduct, neither of which is a federal statute. Her remaining claims consist of
allegations of legal malpractice, and her references to constitutional amendments
appear to be either immaterial and made solely for the purpose of obtaining federal
jurisdiction or wholly insubstantial and frivolous. See Blue Cross & Blue Shield of
Ala., 138 F.3d at 1352. Therefore, even viewing the facts in the light most
favorable to Gibson, she fails to show that her claim arises under either the
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Constitution, a federal statute, or a United States treaty, and she failed to establish
federal question jurisdiction. See 28 U.S.C. § 1331.
Finally, because her only federal claim was dismissed prior to trial, the
district court was correct to decline to exercise supplemental jurisdiction over
Gibson’s state legal malpractice claims. See Raney, 370 F.3d at 1089.
II.
Federal and state governments “have a constitutional obligation to provide
minimally adequate medical care to those whom they are punishing by
incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991).
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain,” which is proscribed by the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d
251 (1976) (quotation and citation omitted).
The Fourteenth Amendment “can be violated only by conduct that may be
fairly characterized as ‘state action.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S.
922, 923-24, 102 S.Ct. 2744, 2746-47, 73 L.Ed.2d 482 (1982). “As a matter of
substantive constitutional law, the state-action requirement reflects judicial
recognition of the fact that most rights secured by the Constitution are protected
only against infringement by governments . . . .” Id. at 936, 102 S.Ct. at 2753. In
numerous contexts, the Supreme Court has “insisted that the conduct allegedly
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causing the deprivation of a federal right be fairly attributable to the State.” Id. at
937, 102 S.Ct. at 2753-54.
The district court did not err in granting Volkman’s motion to dismiss based
on Gibson’s failure to state a claim. Accepting Gibson’s statements in her
complaint and her response to Volkman’s motion to dismiss as true, Volkman
provided her with deficient medical treatment and incorrectly and improperly
informed York that her injury was not work related. See Am. United Life Ins. Co.,
480 F.3d at 1057. But Gibson did not receive medical treatment from Volkman
while she was in prison or otherwise receiving punishment through incarceration,
and she therefore fails to state any set of facts consistent with a violation of the
Eighth Amendment. See Bell Atl. Corp., 550 U.S. at 563, 127 S.Ct. at 1969; see
also Harris, 941 F.2d at 1504. Similarly, she fails to state how any of Volkman’s
actions violated her Fourteenth Amendment rights because she fails to establish or
even allege that Volkman’s actions in providing private medical care constituted
“state action” that could potentially violate the Fourteenth Amendment. See
Lugar, 457 U.S. at 923-24, 102 S.Ct. at 2746-47.
To the extent that Gibson asserts state-law claims of negligence and medical
malpractice, she fails to establish federal subject matter jurisdiction. Finally, since
her federal claims were dismissed prior to trial, the district court was correct to
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decline to exercise supplemental jurisdiction over Gibson’s negligence and medical
malpractice claims. See Raney, 370 F.3d at 1089.
Based on the above, we affirm.
AFFIRMED. 1
1
Appellee York’s motion to file supplemental authority and Appellant Gibson’s motion to
file a reply brief out of time are GRANTED.
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