[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-13169

Non-Argument Calendar

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D.C. Docket No. 8:14-cv-02708-VMC-EAJ

KEITH ROBERT CALDWELL, SR., 

 Plaintiff-Appellant,

versus

SUZANNE M. KLINKER, et al.,

 Defendants,

US DEPARTMENT OF VETERANS AFFAIRS, 

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, 

HOSPITAL CORPORATION OF AMERICA HOLDINGS, INC., 

d.b.a. Palms of Pasadena Hospital, 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

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(March 30, 2016)

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Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

Keith Caldwell, Sr., a disabled veteran proceeding pro se, appeals the 

dismissal of his lawsuit alleging that he received substandard and negligent 

treatment from several medical institutions. The district court, after giving 

Caldwell several opportunities to amend his complaint, concluded that it lacked 

subject-matter jurisdiction and dismissed the action. 

The district court determined that Caldwell’s claims against DefendantsAppellees United States Department of Veterans Affairs (“VA”) and U.S. 

Department of Health and Human Services (“HHS”) (collectively, “federal agency 

defendants”) were subject to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 

2672, and were due to be dismissed because Caldwell had not exhausted his 

administrative remedies as required by that act. Further, the court concluded that 

Caldwell’s claims against the owner or operator of a private hospital, DefendantAppellee Hospital Corporation of America Holdings, Inc. (“Hospital 

Corporation”), were subject to dismissal because Caldwell had not established that 

the district court had jurisdiction to decide his claims against that entity. 

After careful review, we conclude that the district court’s reasoning was 

correct, so we affirm the dismissal of Caldwell’s action for lack of subject-matter 

jurisdiction. 

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I.

In this lawsuit, Caldwell primarily alleged that he received inadequate 

treatment from the VA Bay Pines hospital after suffering several blackouts that

caused him to fall and sustain serious injuries. According to Caldwell, he needed a 

power wheelchair to prevent falling when he suffered a blackout, but his primary 

physician at Bay Pines negligently failed to obtain one for him. Caldwell claimed 

that the lack of a power wheelchair later caused him to fall and break his neck 

upon suffering a blackout at a baseball game. 

Following spinal surgery for his injury, Caldwell received rehabilitation 

therapy from the Palms of Pasadena Hospital, which, Caldwell alleged, withheld 

prescribed medication. In addition, before breaking his neck, Caldwell had been 

participating in a mental-health treatment program at Bay Pines, but Palms of 

Pasadena did not offer similar treatment. As a result, Caldwell sought to be 

transferred to the Bay Pines psychiatric ward under the Florida Mental Health Act, 

Fla. Stat. § 394.451, et seq. However, according to Caldwell, Bay Pines 

stonewalled his efforts to transfer for mental-health treatment Caldwell also 

alleged that the director of Bay Pines refused to remove his primary care physician, 

despite his requests. 

Caldwell originally named as defendants several individuals, including his 

primary care physician at Bay Pines, the director of Bay Pines, and the executive 

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officer of Palms of Pasadena. He generally alleged that the defendants “exhibited 

gross incompetence, malpractice, and complete disregard for Plaintiff’s life, health 

and welfare, mental state and safety.” After the district court twice dismissed his 

complaint with leave to amend for failure to establish the court’s subject-matter 

jurisdiction, Caldwell dropped the individual defendants and, in their place, 

substituted their “parent organizations”: the VA and HHS for the Bay Pines 

defendants, and Hospital Corporation for Palms of Pasadena. 

Caldwell’s change in defendants prompted the United States to appear on 

behalf of the federal agency defendants and seek dismissal of the complaint under 

the Federal Tort Claims Act. The United States claimed that it was the only proper 

defendant to a negligence claim against federal agencies and that any such claims 

should be dismissed because Caldwell did not exhaust his administrative remedies 

before bringing suit. The United States also asserted that sovereign immunity 

barred any constitutional tort claims against the federal agencies and that Caldwell 

otherwise failed to state a viable claim. 

The district court granted the United States’s motion and dismissed the 

complaint for lack of subject-matter jurisdiction, for the reasons stated by the 

government. The court granted Caldwell leave to file a third amended complaint 

that established the court’s subject-matter jurisdiction over the action, advising that 

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Caldwell needed to set forth facts showing his exhaustion of administrative 

remedies under the Federal Tort Claims Act.

Thereafter, Caldwell filed what the court construed as his third amended 

complaint. With regard to exhaustion, Caldwell alleged that he presented his 

issues to the executive officer of Palms of Pasadena, as well as the director of Bay 

Pines. The United States again moved to dismiss the complaint.

The district court dismissed Caldwell’s third amended complaint without 

leave to amend on May 15, 2015. The court concluded that Caldwell’s tort claims 

against the federal agency defendants could only be brought against the United 

States under the FTCA and that he failed to exhaust his administrative remedies

under that act. The court noted that Caldwell may still have time to comply with 

the FTCA and then re-file. The court also found that Caldwell’s constitutional 

claims were barred by sovereign immunity. Finally, the court found that Caldwell 

failed to establish diversity jurisdiction over Hospital Corporation. Caldwell 

timely appealed. 

II.

Caldwell broadly condemns the district court’s conclusion that his lawsuit 

was subject to the requirements of the Federal Tort Claims Act (“FTCA”) and that 

the FTCA and the doctrine of sovereign immunity barred his claims. Caldwell 

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asserts that the United States and the district court, by invoking and relying upon 

the FTCA and sovereign immunity, improperly changed the nature of his lawsuit. 

We review de novo the district court’s dismissal of a complaint for lack of 

subject-matter jurisdiction. Underwriters at Lloyd’s, London v. Osting-Schwinn, 

613 F.3d 1079, 1085 (11th Cir. 2010). “Pro se pleadings are held to a less 

stringent standard than pleadings drafted by attorneys and will, therefore, be 

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 

1998). Despite the liberal construction given to the pleadings of pro se litigants, 

“we nevertheless have required them to conform to procedural rules.” Albra v. 

Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (quotation marks omitted). 

Here, Caldwell sought to sue two federal agencies in federal court. But, as a 

general matter, the doctrine of sovereign immunity shields the United States and its 

agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000

(1994). Sovereign immunity is jurisdictional in nature, but it can be waived. Id. 

Therefore, as the party filing suit in federal court, Caldwell bore the burden of 

establishing, by a preponderance of the evidence, facts supporting the existence of 

a waiver of sovereign immunity. See Underwriters at Lloyd’s, 613 F.3d at 1085 

(stating the general requirement of alleging facts sufficient to establish the district 

court’s jurisdiction). 

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“Through the enactment of the FTCA, the federal government has, as a 

general matter, waived its immunity from tort suits based on state law tort claims.” 

Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015). “[T]he FTCA was 

designed to provide redress for ordinary torts recognized by state law.” Ochran v. 

United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (internal quotation marks 

omitted). An action against the United States under the FTCA is the exclusive 

remedy for employment-related torts committed by employees of the federal 

government. 28 U.S.C. §§ 2679, 1346(b); United States v. Smith, 499 U.S. 160, 

165-66, 111 S. Ct. 1180, 1184-85 (1991). 

Here, the FTCA was the exclusive remedy for Caldwell’s state-law tort

claims against the federal agency defendants and their employees. While 

Caldwell’s complaints did not clearly identify the legal basis for his claims, the 

district court properly concluded that Caldwell’s claims, primarily alleging medical 

malpractice and negligence, sounded in tort. Moreover, although Caldwell now 

asserts that the federal employees were not acting within the scope of their 

employment, his allegations plainly establish that his claims arise from acts or 

omissions committed by federal employees while providing medical treatment as 

part of their job duties. Because the FTCA was the exclusive remedy for 

Caldwell’s tort claims for money damages, whether or not he invoked the FTCA or 

named the United States as a defendant, he could not have proceeded against the 

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federal agencies or employees in their own names. See 28 U.S.C. §§ 2679, 

1346(b); Smith, 499 U.S. at 165-66, 111 S. Ct. at 1184-85. 

The fact that Caldwell’s claims are subject to the FTCA does not mean, as 

he contends, that the district court changed the nature of the lawsuit or somehow 

altered his allegations. It simply means that, for the types of facts he alleged—

whatever legal label Caldwell attached to them—Caldwell needed to comply with 

the FTCA’s requirements before filing suit in federal court. Specifically, Caldwell 

needed to exhaust his administrative remedies. McNeil v. United States, 508 U.S. 

106, 113, 113 S. Ct. 1980, 1984 (1993) (“The FTCA bars claimants from bringing 

suit in federal court until they have exhausted their administrative remedies.”). 

Even pro se litigants must comply with the exhaustion requirement. Id. Unless 

and until a claimant has exhausted his administrative remedies under the FTCA, 

the district court lacks subject-matter jurisdiction. Turner ex rel. Turner v. United 

States, 514 F.3d 1194, 1200 (11th Cir. 2008).

To exhaust administrative remedies, “the claimant shall have first presented 

the claim to the appropriate Federal agency and his claim shall have been finally 

denied by the agency in writing and sent by certified or registered mail.” 28 

U.S.C. § 2675(a). If the agency fails to make a “final disposition of a claim within 

six months after it is filed,” the claimant may treat the lack of response as “a final 

denial of the claim for purposes of this section.” Id.; Turner ex rel. Turner, 514

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F.3d at 1200 (“Before instituting a federal suit, the claimant must wait either until 

the administrative agency finally denies the claim or until at least six months have 

passed after the claim was filed.”).

Caldwell did not exhaust his administrative remedies under the FTCA 

because did not file an administrative claim with the federal agency responsible for 

handling his claim. 28 U.S.C. § 2675(a). The district court properly found that 

Caldwell’s complaints to a private hospital administrator and a VA hospital 

administrator were insufficient under the FTCA. See Motta ex rel. A.M. v. United 

States, 717 F.3d 840, 843 (11th Cir. 2013) (“An appropriate federal agency is the 

actual federal agency responsible for handling the claim and not the governmentfunded entity or government employee who committed the alleged tort.”). In other 

words, Caldwell needed to file an administrative claim directly with the VA, but he 

did not. See, e.g., Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001). 

Caldwell’s pro se status does not excuse his failure to satisfy the FTCA’s 

requirements. See McNeil, 508 U.S. at 113, 113 S. Ct. at 1984. 

Because Caldwell’s claims were subject to the FTCA but he did not exhaust 

his administrative remedies before bringing suit in federal court, the district court 

properly dismissed his negligence and medical malpractice claims for lack of 

jurisdiction. Furthermore, to the extent Caldwell raised constitutional tort claims 

against the federal agency defendants under the Fifth and Fourteenth Amendments, 

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the district court properly found that those claims were barred by sovereign 

immunity. The FTCA did not waive sovereign immunity from liability for 

damages arising from an alleged constitutional violation. Meyer, 510 U.S. at 477-

78, 114 S. Ct. at 1001. 

Under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999

(1971), a plaintiff may bring suit directly under the Constitution against federal 

officers in their individual capacity for constitutional violations. See Hardison v. 

Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004). But Caldwell has not brought a 

Bivens claim. In his second and third amended complaints, Caldwell dropped his 

claims against the individual federal defendants and instead sought to proceed 

directly against the federal agencies.1

 Bivens does not extend to allow direct 

actions for damages against federal agencies. Meyer, 510 U.S. at 485-86, 114 S. 

Ct. at 1005-06. 

Finally, the district court did not err in finding that Caldwell failed to 

establish federal jurisdiction over Hospital Corporation. Caldwell does not directly 

challenge this ruling on appeal, but we note that he did not adequately allege a 

federal cause of action against Hospital Corporation so as to invoke the district 

court’s federal-question jurisdiction, 28 U.S.C. § 1331, nor did he adequately 

 1 Caldwell claims that the court improperly granted a motion to dismiss filed by one of 

the original individual defendants without giving Caldwell time to respond, but the district court 

did not prohibit Caldwell from renaming that individual in subsequent complaints, and Caldwell 

voluntarily dropped her as a named defendant. Accordingly, Caldwell has no basis to complain. 

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allege that complete diversity of citizenship existed between him and Hospital 

Corporation, 28 U.S.C. § 1332(a), (c)(1). Accordingly, the district court properly 

dismissed his claims against Hospital Corporation. 

For the reasons stated, we affirm the district court’s dismissal of Caldwell’s 

action for lack of subject-matter jurisdiction. 

AFFIRMED.

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