* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

November 22, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41015

Summary Calendar

 

RAYMUNDO MONTOYA-ORTIZ,

Plaintiff-Appellant,

versus

BENJAMIN BROWN, Bureau of Prisons Health Services Administrator;

DUCHIESNE, DR., Chief Doctor of Health Services; NUNEZ, Mid-level

Practitioner; MCCLEERY, Licensed Vocational Nurse; DOE, DR.,

Contract Physician; KATHLEEN HAWK SAWYER, Director, Federal

Bureau of Prisons; UNITED STATES OF AMERICA; HOUGLUM, DR.,

Contract Physician,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:03-CV-62 

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Raymundo Montoya-Ortiz (Montoya), federal prisoner # 55702-

080, filed a pro se civil rights complaint under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), the Eighth Amendment, and the Federal Tort Claims Act

(FTCA), seeking damages for medical negligence and gross

negligence against the following officials at the Bureau of
No. 04-41015

-2-

** Kathleen Hawk Sawyer, the director of the BOP, was also

served although Montoya did not list her as a defendant in his

amended complaint. Houglum, the independent contract physician,

and Sawyer are not parties to this appeal. This court has

appellate jurisdiction because the final judgment disposed of all

claims against all the defendants. See Bader v. Atl. Int’l,

Ltd., 986 F.2d 912, 914-15 (5th Cir. 1993).

Prisons (BOP) facility in Three Rivers, Texas: Benjamin Brown,

M.D., Health Administrator; Carlos Duchiesne, M.D., Chief Doctor

of Health Services; Miguel Nunez, Physician Assistant; and Nathan

McCleery, Licensed Vocational Nurse. He filed an amended

complaint adding the United States and Dr. Houglum, an

independent contract physician, as defendants.** The district

court granted a partial dismissal order dismissing Montoya’s

Bivens claims, and later granted a summary judgment dismissing

Montoya’s remaining FTCA and Eighth Amendment claims. Montoya

now appeals. 

Bivens claims

Montoya argued that the district court erred in dismissing

his Bivens claims against Brown and Duchesne because they failed

to supervise their staff resulting in an improper diagnosis of

his foot.

This court reviews de novo a district court’s dismissal for

failure to state a claim under Rule 12(b)(6). Capital Parks,

Inc. v. Southeastern Adver. and Sales Sys., Inc., 30 F.3d 627,

629 (5th Cir. 1994). Section 42 U.S.C. § 233(a) of the Public

Health Services Act preempts Bivens claims, providing that a
No. 04-41015

-3-

plaintiff’s sole remedy under that section is a claim brought

under the FTCA. See Carlson v. Green, 446 U.S. 14, 20 (1980). 

Montoya has consistently alleged that the defendants acted

within the scope of their employment. He does not allege

otherwise in his reply brief. Accordingly, the district court

did not err in dismissing his Bivens claims against Brown and

Duchiesne under 42 U.S.C. § 233(a). See Carlson, 446 U.S. at 20.

Further, his claim that Brown and Duchiesne failed to properly

supervise their staff lacks merit because respondeat superior

liability is not available in a Bivens action. See Abate v. S.

Pac. Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993). 

Montoya also alleges that Nunez and McCleery were

deliberately indifferent to his injury under the Eighth

Amendment. Although Nunez eventually ordered an x-ray of

Montoya’s broken foot, Montoya alleges that Nunez was initially

negligent by following the orders of the independent contract

physician. Nunez’s actions, at the worst, demonstrate an

incorrect diagnosis which does not establish a showing of

deliberate indifference. See Domino v. Texas Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001). Similarly, with

respect to McCleery, Montoya does not dispute that McCleery

followed the order of the independent contractor physician. 

Montoya’s mere allegation that McCleery should have contacted

additional doctors in contravention of the physician’s order does

not establish a showing of repugnant action to constitute
No. 04-41015

-4-

deliberate indifference. See Estelle v. Gamble, 429 U.S. 97,

105-06 (1976). Accordingly, the district court did not err in

dismissing Montoya’s Eighth Amendment claims with respect to

Nunez and McCleery. 

FTCA claim

Montoya argues that the district court erred in granting the

defendants’ summary judgment on his FTCA claim because the

medical staff was dilatory in discovering his injury. He further

argues that it was impossible for him to argue the case and

provide an expert as an indigent party. He also argues that the

district court failed to conduct an evidentiary hearing. Because

Montoya raises this argument regarding an evidentiary hearing for

the first time on appeal, it will not be considered. See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999). 

This court reviews a grant of summary judgment de novo and

applies the same standards as did the district court. Clark v.

America’s Favorite Chicken Co., 110 F.3d 295, 296 (5th Cir.

1997). “Summary judgment is appropriate when the record reflects

that ‘there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.’” 

Id. at 297 (quoting FED. R. CIV. P. 56(c)). 

The FTCA is a limited waiver of sovereign immunity making

the United States liable to the same extent as private parties

for certain torts of federal employees acting within the scope of
No. 04-41015

-5-

their employment. United States v. Orleans, 425 U.S. 807, 813

(1976); 28 U.S.C. § 1346(b). Under Texas law, expert testimony

is generally required to prove the applicable standard of care in

an FTCA claim. Quijano v. United States, 325 F.3d 564, 567 (5th

Cir. 2003). Id.

Montoya never filed a response to the defendants’ motion for

summary judgment arguing that he had difficulties obtaining an

expert. Under Rule 56, Montoya has failed to produce competent

summary judgment evidence to establish the existence of the

elements of duty, breach of standard of care, causation and

damages after an adequate time for discovery. Accordingly, the

district court did not err in dismissing Montoya’s FTCA claim

against the defendants. See Quijano, 325 F.3d at 567.

AFFIRMED.