IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10401

Summary Calendar

GERARDO ESQUIVEL-SOLIS,

Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; GLEN BALINAO; D.D.S. JOHN

CARPENTER; THE CORNELL COMPANIES, INCORPORATED,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:10-CV-293

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Gerardo Esquivel-Solis, federal prisoner # 65064-179, filed a pro se civil

rights complaint pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), alleging that defendants Glen Balinao,

John Carpenter, and The Cornell Companies, Inc., were deliberately indifferent

to his medical needs. His complaint also alleged claims pursuant to the Federal

Tort Claims Act (FTCA) against the United States. The district court dismissed

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. 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 5TH CIR.

R. 47.5.4.

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the deliberate-indifference claims with prejudice as frivolous and dismissed the

FTCA claims without prejudice on the ground that Esquivel-Solis had not named

the United States as the sole defendant. 

As an initial matter, Esquivel-Solis does not set forth any factual or legal

arguments regarding his claim that the defendants were deliberately indifferent

to his serious medical needs by failing to provide effective treatment for the pain

and swelling that he sustained after an improperly performed dental procedure. 

Because he has failed to contest the district court’s disposition of his deliberateindifference claim, he has abandoned the issue on appeal. See Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, we affirm the district court’s

dismissal with prejudice of Esquivel-Solis’s claim that he was subjected to cruel

and unusual punishment in the form of deliberate indifference to his serious

medical needs.

The district court dismissed without prejudice Esquivel-Solis’s FTCA

claims on the basis that the claims could not be asserted in the same complaint

as his Bivens claims and that he had to file a separate FTCA action exclusively

naming the United States as a defendant. He contends that the district court’s

conclusion was erroneous and that clearly established law provides that he may

allege Bivens claims and FTCA claims in the same proceeding. Esquivel-Solis

alleges that the denial of his FTCA claims without prejudice effectively bars him

from raising those claims in a new complaint because the statute of limitations

for the claims has expired. See 28 U.S.C. § 2401(b) (noting that limitation period

under the FTCA is two years from the time the claim accrued or six months from

the time that the agency mails its final denial of the claim).

The FTCA confers on federal courts exclusive jurisdiction of civil actions

on claims against the United States for money damages for personal injury

caused by the negligent or wrongful acts or omissions of any federal employee

while acting within the scope of his office or employment. 28 U.S.C. § 1346(b)(1). 

FTCA claims may be brought against only the United States, and not the

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agencies or employees of the United States. See 28 U.S.C. §§ 2671, 2679; Galvin

v. OSHA, 860 F.2d 181, 183 (5th Cir. 1988). An FTCA claim brought against a

federal agency or employee rather than the United States shall be dismissed for

want of jurisdiction. See Galvin, 860 F.2d at 183; see also Atorie Air, Inc. v.

Federal Aviation Admin., 942 F.2d 954, 957 (5th Cir. 1991) (concluding that all

defendants in an FTCA action other than the United States were properly

dismissed for lack of jurisdiction). 

However, contrary to the district court’s determination, our case law does

not set forth that a plaintiff must pursue a separate action alleging FTCA claims

against the United States or that FTCA claims against the United States may

not be alleged along with non-FTCA claims against other parties. Instead, our

case law establishes only that FTCA claims must be alleged exclusively against

the United States, i.e., an FTCA claim will be cognizable – regardless of the

other parties or additional claims involved in the proceeding – if the United

States is the sole party against whom the claim is brought. See Galvin, 860 F.2d

at 183; Atorie, 942 F.2d at 957-58. Where a plaintiff has alleged an FTCA claim

solely against the United States, we will consider the FTCA claims as well as

any non-FTCA claims alleged in the same proceeding against other parties. See

Bennett v. Barnett, 210 F.3d 272, 274-77 (5th Cir. 2000).

Here, Esquivel-Solis named the United States as the exclusive party

against which he was raising FTCA claims. Thus, the district court erroneously

concluded that Esquivel-Solis’s FTCA claims were subject to dismissal without

prejudice. See Galvin, 860 F.2d at 183; Atorie, 942 F.2d at 957-58. Because the

district court incorrectly found that it could not consider Esquivel-Solis’s FTCA

claims and dismissed the claims without considering their merits in the first

instance, we vacate the district court’s dismissal without prejudice of the FTCA

claims and remand for further proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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