[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 31, 2005
No. 05-11025 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 04-00476-CV-CG-M
CLARENCE ABNER,
JANICE ABNER,
Plaintiffs-Appellants,
versus
MOBILE INFIRMARY HOSPITAL,
BRIAN ARCEMENT, M.D., et. al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 31, 2005)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Clarence and Janice Abner, proceeding pro se, appeal the district court’s
dismissal of their complaint, which alleged violations of the Medicare Statute, 42
C.F.R. § 35.15,1 and Ala. Code § 22-8-1,2 without first granting them leave to
amend pursuant to Fed. R. Civ. P. 15(a). The Abners’ complaint sought
“compensatory and general damages” for alleged “physical injury caused by
misdiagnosis and wrongful suffering” of Lillian Abner. The Abners are the
husband and daughter of decedent Lillian Abner. The district court dismissed
their complaint for lack of subject-matter jurisdiction and for lack of standing to
bring suit under Alabama law. The district court reasoned that because the Abners
were not seeking benefits, but were rather seeking compensatory and general
damages for what amounted to state tort claims, their claims were not governed by
the Medicare Act. The district court further held that even if federal question
jurisdiction existed, the complaint was not brought by the proper parties because
Alabama’s wrongful death statute provides that only the personal representative of
the decedent may sue for wrongful death. Hatas v. Partin, 175 So.2d 759, 760-61
(Ala. 1965).
On appeal, the Abners seem to concede that their original complaint was
defective. Insofar as the Abners do not concede this point, we conclude that the
1
42 C.F.R. § 35.15 requires that consent be obtained before performing a major
operative procedure or before administering general anesthetics.
2
Ala. Code § 22-8-1 governs procedures to follow in situations in which a patient
is physically or mentally unable to consent to medical or mental health services.
2
district court correctly held that federal question jurisdiction did not exist in this
case. The Medicare Act does not create a private right of action for negligence,
and we know of no federal statute that would support these particular claims,
which seem to be state tort claims. See 42 C.F.R. § 1003.100 et seq.3 Thus, the
district court properly found that jurisdiction did not exist in this case.4
The Abners further argue that the district court abused its discretion by
dismissing their complaint without first granting them leave to amend to add a
claim alleging violations of their constitutional “right to choose based on
disclosure,” allegedly found in the First, Ninth, and Fourteenth Amendments. The
Abners argue that granting them leave to amend to add this claim would have
cured their complaint’s jurisdictional defects.
We review the denial of a party’s motion for leave to amend a complaint
under an abuse of discretion standard. Green Leaf Nursery v. E.I. DuPont De
Nemours & Co., 341 F.3d 1292, 1300 (11th Cir.), cert. denied, 124 S.Ct. 2094
(2004).
3
Diversity jurisdiction is similarly inapplicable because all parties are located in
Alabama.
4
The Abners’ claims that the doctrine of Res Ipsa Loquitur and the Rooker-
Feldman doctrine confer jurisdiction are wholly without merit.
3
Under Fed.R.Civ.P. 15(a), leave to amend “shall be freely given when
justice so requires.” This rule “severely restricts” a district court’s discretion to
dismiss a complaint without first granting leave to amend. Bryant v. Dupree, 252
F.3d 1161, 1163 (11th Cir. 2001). Nonetheless, a district court may do so when
such an amendment would be futile. Id. “This Court has found that denial of
leave to amend is justified by futility when the complaint as amended is still
subject to dismissal.” Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th
Cir. 2004) (citation omitted).
Here the district court evaluated the Abners’ proffered bases for amending
their complaint, concluded that any such amendment would be futile, and
dismissed their complaint without formally accepting or permitting them to amend
their complaint. In doing so, the district court addressed the Abners’ alleged
constitutional violations and found them to be without merit because defendants
are private individuals or entities, and the Constitution only protects against
injuries caused by state actors. Jeffries v. Ga. Residential Fin. Auth., 678 F.2d
919, 922 (11th Cir. 1982) (citing the “well settled” rule that the Fourteenth
Amendment’s due process clause reaches only government action and not actions
by purely private persons in their ordinary activities).
4
On appeal, the Abners provide no support that we, or any other court, have
recognized a constitutional “right to choose based on disclosure.” The Abners
also have failed to provide any support as to why such a right, even assuming it
exists, would apply to private parties, nor have they alleged any form of state
action by defendants in this case. Absent such a showing, the Abners’ proposed
constitutional claim would be subject to dismissal as a matter of law.
Upon careful review of the record, and consideration of the Abners’
complaint and brief, we find no reversible error. Because the Abners’ proposed
constitutional claim would be subject to dismissal as a matter of law, the district
court did not abuse its discretion in finding that such an amendment would be
futile. Accordingly, we affirm the district court’s order dismissing the Abners’
complaint without first granting them leave to amend pursuant to Fed.R.Civ.P.
15(a).
AFFIRMED.
5