United States Court of Appeals

for 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,

Defendants—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 Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 5, 2021

Lyle W. Cayce

Clerk

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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, certifying that the appeal was not taken 

in good faith because an appeal would be 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 frivolous).” 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 (1972).

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 properly entered a default against 

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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 with local court rules, the district 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 administrative 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 these arguments, and we conclude that 

none of them “involves legal points arguable 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.

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