* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 4, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 03-60303

Summary Calendar

TAMILIA, JOSEPHINE, ESTATE OF

Plaintiff - Appellant

VERSUS

GULF COAST MEDICAL CENTER

Defendant - Appellee

Appeal from the United States District Court

For the Southern District of Mississippi, Biloxi

1:02-CV-53

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM: *

Nicholas Tamilia challenges the district court’s order

granting summary judgment in favor of defendant, Gulf Coast Medical

Center in this wrongful death action filed by appellant following

the death of his wife, Josephine Tamilia.

Appellant, who is pro se, alleged in his sworn complaint that2

in March 2001 his wife became ill while they were traveling near

Biloxi, Mississippi. He brought her to the defendant’s medical

center in Biloxi. His wife was put on a respirator and at about

6:30 p.m. on March 7, 2001 his wife asked appellant to get her

something to eat. When he left she was awake and writing in her

diary. When he returned with cheeseburgers ten or fifteen minutes

later appellant’s wif e was unconscious and never regained

consciousness thereafter. When Mr. Tamilia returned he also saw

that she had black and blue marks on her neck, face and chest and

her purse was missing. A nurse returned Mrs. Tamilia’s purse a few

minutes after he returned to the room.

Mrs. Tamilia never regained consciousness and was transported

to Memorial Hospital in Gulfport the next day around 11:00 p.m.

Around 1:00 a.m. on March 9, 2001 appellant was told that his wife

had died.

Appellant in later pleadings asserted that he claimed damages

for assault and battery as well as negligent failure of the

hospital to train and supervise its staff. The district court

first granted summary judgment in favor of the defendant on the

intenti onal tort claims because they were time barred under the

Mississippi one year statute of limitations for intentional torts.

Appellant does not challenge that ruling. The district court

initially denied the defendant’s motion for summary judgment on the

n egligence claims but then on reconsideration granted th e

defendant’s motion to dismiss the negligence claims as well.3

The defendant Gulf Coast Hospital filed no supporting

documentation in support of the summary judgment exc ept for the

deposition of appellant. Gulf Coast did not rely on its hospital

records or file any a ffidavits from its employees or

representatives explaining what occurred during Mrs. Tamilia’s

hospitalization. Gulf Coast simply relied on the lack of factual

support by the plaintiff to support its claims that Gulf Coast, its

employees and representatives were negligent.

Under the ci rcumstances presented in today’s case where the

defendant stands mute as to any explanation for the sudden change

in Mrs. Tamilia’s condition while she was under the defendant’s

care, including Mr. Tamilia’s ten or fifteen minute absence, or a

general explanation of its treatment of Mrs. Tamili a and her

reaction to that treatment, we co nclude that plaintiff’s sworn

complaint is su fficient to raise an inference that defendant’s

employees were negligent. This completely un-rebutted inference

precludes summary judgment.

In light of our conclusion that the district court erred in

granting summary judgment to the defend ant on plaintiff’s

negligence claims, we vacate the district court’s judgment and

remand this case to the district court for further proceedings

consistent with this opinion.

VACATED AND REMANDED.