This Order and Judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

Because Ms. Sophocleous is proceeding pro se, we review her 1

pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

FILED

United States Court of Appeals

Tenth Circuit

October 12, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TONYA SOPHOCLEOUS,

Plaintiff-Appellant,

v.

LAWRENCE MEMORIAL

HOSPITAL,

Defendant-Appellee.

No. 07-3147

(D.C. No. 07-CV-4029-RDR)

(D. Kan.)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.

Plaintiff-Appellant Tonya Sophocleous, proceeding pro se, appeals from the 

dismissal of her medical malpractice claims by the District Court for the District

of Kansas. We have jurisdiction under 28 U.S.C. § 1291. Construing Ms.

Sophocleous’s filings liberally, we conclude that the district court correctly 1
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dismissed her claims for lack of subject matter jurisdiction and failure to state a

claim for which relief could be granted. Accordingly, we AFFIRM the district

court’s order of dismissal.

I. BACKGROUND

Ms. Sophocleous alleges that on February 9, 2007, she went to the

emergency room at Lawrence Memorial Hospital and was diagnosed with a

stomach flu. She returned the next day “in a great amount of pain” and was

diagnosed with an ovarian cyst. R., Doc. 1, at 3. She sued for medical

malpractice, seeking damages of $150 billion and a court order to force the

hospital to treat her. The district court dismissed for lack of subject matter

jurisdiction and for failure to state a claim for which relief could be granted. Ms.

Sophocleous timely filed a notice of appeal.

II. DISCUSSION

We review the district court’s grant of a motion to dismiss de novo. 

Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1139 (10th Cir. 2006). 

Ms. Sophocleous bears the burden of proof when invoking federal jurisdiction. 

Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). 

Diversity jurisdiction under 28 U.S.C. § 1332 is unavailable because Ms.

Sophocleous acknowledges that both she and the hospital are citizens of Kansas. 

Federal question jurisdiction under 28 U.S.C. § 1331 depends on a right of action

under some federal law. No federal law was mentioned in the complaint, and
The district court found that dismissal of Ms. Sophocleous’s state 2

law claims also was appropriate because she failed to comply with the notice

requirement of Kansas Statutes Annotated § 12-105b(d). See generally Kan. Stat.

Ann. § 12-105b(d) (“No person may initiate an action against a municipality

unless the claim has been denied in whole or part [after notice is filed].”) On

appeal, it is not clear whether Ms. Sophocleous challenges this district court

(continued...)

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those mentioned before the district court and on appeal do not provide for rights

of action in this situation. 

Ms. Sophocleous relies primarily on the Emergency Medical Treatment and

Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd, which is “neither a federal

malpractice nor a negligence statute.” Scott v. Hutchinson Hosp., 959 F. Supp.

1351, 1357 (D. Kan. 1997). Her allegations do not support claims that would be

cognizable under EMTALA, such as “failing to conduct an appropriate medical

screening” or “failing to further examine and treat a person whom the hospital has

determined has an emergency medical condition.” Id. 

Ms. Sophocleous’s unsupported citation of the Fifth Amendment for the

first time on appeal will not create a federal question here. See Cummings v.

Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (noting the “general rule that issues

not raised below are waived on appeal”). And while 28 U.S.C. § 1343 provides

jurisdiction over civil rights claims, Ms. Sophocleous has not alleged any facts

that would give rise to a legally-cognizable civil rights violation. Therefore, the

district court correctly dismissed these claims for lack of jurisdiction and failure

to state a claim for which relief could be granted.2
(...continued) 2

ruling. Indeed, Ms. Sophocleous asserts that the district court “erred” in

misinterpreting her complaint as being founded on state law claims. See Aplt. Br.

at 2. In any event, we need not reach this issue because, even if notice were

properly given, the district court would have been without jurisdiction to hear any

of Ms. Sophocleous’s state law claims. 

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Accordingly we AFFIRM the district court’s order dismissing Ms.

Sophocleous’s complaint.

Entered for the Court

Jerome A. Holmes

Circuit Judge