# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 60006 Summary Calendar

**Keith A. Gordon,**

Plaintiff

— Appellant **,**

versus

**Cenedra D. Lee; Derek S. Dyess; Eric L. Rushing; Jackson HMA, L.L.C.;**  **United States of America; XYZ Insurance Compan(ies); Cox Medical Facility,** 

D efendants

— Appellees

**.**

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:17

- CV

- 84

Before **Jones, Duncan,** and **Engelhardt,** Circuit Judges

**. Per Curiam**  **:** *
Keith A. Gordon, proceeding pro se, filed a civil complaint against numerous medical professionals, medical facilities, and insurers , seeking damages for what he deemed to be inadequate medical care. He alleged that

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 5, 2021

Lyle W. Cay ce Clerk Case: 20-60006 Document: 00516041997 Page: 1 Date Filed: 10/05/2021No. 20

- 60006

2 the actions taken by the various defendants amounted to tortious medical malpractice and violated various of his federal constitutional rights.
One by one, individual claims and defendants were dismissed from the
lawsuit until only Gordon’s claim against the United States of America (USA) under the Federal Tort Claims Act (FTCA) and his state

- law claims for malpractice remained . The district court dismissed the FTCA claim without prejudice because Gordon had failed to exhaust his administrative
remedies prior to filing suit . With no federal claims remaining, the district court declined to exercise supplemental jurisdiction over Gordon’s state

- law
claims for malpractice , and it dismissed the lawsuit. Gordon timely appealed and moved for leave to proceed in forma pauperis (IFP) on appeal. The district court denied the IFP motion, c ertifying that the appeal was not taken in good faith because an appeal would b e frivolous. Gordon now seeks leave from this court to proceed IFP on appeal.
By filing an IFP motion in this court, Gordon challenges the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 ( 5th Cir. 1997)

. His motion “must be directed solely to the trial court’s reasons for the certification decision,” id. , and this court’s inquiry “is limited to whether the appeal involves legal points arguable on their merits (and therefore [is] not frivol ous)

. ” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). We liberally construe Gordon’s merits briefs as containing his arguments in support of his IFP motion. See Haines v. Kerner , 404 U.S. 519,

520

- 21 (1 972)

. Gordon presents the following arguments. Cox Medical Facility
moved in bad faith for an extension of time to answer Gordon’s complaint, and the district court granted the extension because it was biased against
Gordon. The district

- court clerk prop erly entered a default against Case: 20-60006 Document: 00516041997 Page: 2 Date Filed: 10/05/2021No. 20

- 60006

3 Dr. Meseret Teferra and Family Health Care Clinic (FHCC), and the district court erred in setting aside that default without specifically mentioning or addressing the opposition Gordon had registered. The USA was improperly substituted for Dr. Teferra and FHCC as the proper party defendant to
Gordon’s FTCA claims arising from Dr. Teferra’s treatment of him, which
Gordon maintains was intended to cause harm. The district court erred in stating that Gordon had not opposed the substitution of the USA into the case. The USA’s first motion to dismiss should have failed. By striking Gordon’s surreply to the USA’s second motion to dismiss for being noncompliant wit h local court rules, the d istrict court improperly held Gordon to the same standard as an attorney. The district court erred in determining that the discretionary

- function exception to the FTCA deprived it of jurisdiction without first determining whether Dr. Teferra and FHCC

were acting outside the scope of their government employment. The requirement of 28 U.S.C. § 2675(a) that Gordon exhaust his administrative
remedies was met because he did receive a final decision from the Department of Health and Human Services denying his a dministrative tort claim. Alternatively, exhaustion of his claims would have been futile because the Government was improperly substituted into the case.

We have reviewed each of th e se arguments, and we conclude that
none of the m “ involves legal points ar guable on their merits .” Howard , 707
F.2d at 220 . Further, any challenges to any of the district court’s determinations and rulings not addressed here by Gordon have been
abandoned. See Yohey v. Collins , 985 F.2d 222, 224

- 25 (5th Cir. 1993) ; Brinkmann v . Dallas Cnty. Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987) . Because Gordon has not shown that he will raise any nonfrivolous issues on appeal, his IFP motion is **DENIED** , and this appeal is
**DISMISSED** as frivolous

. Baugh , 117 F.3d at 202 & n.24; **5th Cir.**
**R**

. 42.2. Case: 20-60006 Document: 00516041997 Page: 3 Date Filed: 10/05/2021