IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40616

Summary Calendar

BETTE KING, on behalf of Jennifer C. Chaney,

Plaintiff-Appellant

v.

TEXAS MEDICAL BOARD; PETER CHANG, Medical Doctor; TIMOTHY 

WEBB, Medical Doctor; IRVIN ZEITLER, JR., Doctor of Osteopathic Medicine; 

SHARON BARNES; MARI ROBINSON; LEE BUKSTEIN; GEORGE 

WILLEFORD, Medical Doctor; NANCY SELIGER; CHRISTOPHER M. 

PALAZOLA; WILLIAM H. FLEMING, III, Medical Doctor; MELISSA TONN, 

Medical Doctor,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CV-338

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Bette King, appearing pro se, appeals the magistrate judge’s judgment 

dismissing her civil rights complaint for lack of subject matter jurisdiction 

based on her lack of standing to file suit on behalf of her deceased daughter 

* 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

July 25, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40616

Jennifer C. Chaney. King challenges the finding that she lacked standing to 

sue on her daughter’s behalf, pointing out that the magistrate judge allowed 

her to file an amended complaint and that she had obtained the permission of 

her deceased daughter’s husband to file the complaint against the members of 

the Texas Medical Board. 

This court reviews a dismissal for lack of subject matter jurisdiction 

pursuant to Federal Rule of Civil Procedure 12(b)(1) de novo. William v. 

Wynne, 533 F.3d 360, 364 (5th Cir. 2008). Standing must be shown to provide 

an Article III court with subject matter jurisdiction over the case. K.P. v. 

LeBlanc, 729 F.3d 427, 436 (5th Cir. 2013). A party must have standing under 

the state’s wrongful death or survival statutes to bring a claim under 42 U.S.C. 

§ 1983. Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004); Rhyne v. Henderson 

County, 973 F.2d 386, 390-91 (5th Cir. 1992). In order for King to bring a 

survival action on behalf of her daughter or her estate, Texas law requires 

proof that King is the administrator of her daughter’s pending estate or, if the 

administration of the estate is unnecessary, that she is an heir of the estate. 

Mayhew v. Dealey, 143 S.W.3d 356, 370 (Tex. App. 2004). Under state law, if 

King’s daughter died intestate, her heirs are her spouse and children. TEX.

EST. CODE ANN. §§ 201.002, 201.003. King has not provided any evidence 

whether her daughter died testate or intestate or whether her estate is under 

administration or will be administered. Further, King has not shown that she 

is a rightful heir. Thus, she has not shown that she has standing to bring a 

survival action on behalf of her daughter or her estate. The district court’s 

dismissal of King’s claim brought on behalf of her daughter’s estate for lack of 

subject matter jurisdiction is affirmed. FED. R. CIV. P. 12(b)(1).

In addition to her claims on her daughter’s behalf, King alleged that she 

had been emotionally and financially harmed by the death of her daughter. 

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Under Texas law, the parents of the deceased may bring a wrongful death 

action for the loss of support and companionship of their adult child. TEX. CIV.

PRAC. & REM. CODE ANN. § 71.004. King may have standing to file suit for her 

personal losses. However, although King characterizes her claims as being 

constitutional in nature, her complaint and other pleadings allege that the 

Board members were negligent in failing to exercise their duty of ordinary and 

reasonable care owed to her daughter. In her briefs, she complains that the 

Board was negligent in failing to impose sufficient sanctions upon her 

daughter’s doctor to prevent him from engaging in his medical practice. Mere 

negligence is not sufficient to prove a substantive due process claim. 

McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir. 2002). King’s 

allegations that the disciplinary action taken by the Board against her 

daughter’s doctor in 1999 was not sufficiently stringent to prevent her 

daughter’s death in 2008 did not reflect that the Board members engaged in 

egregious or arbitrary conduct that would support a substantive due process 

claim. Id. at 326. If King has standing to make a wrongful death claim, her 

complaint is still subject to dismissal for failure to state a valid constitutional 

claim. Id. at 325-26.

The district court’s judgment is AFFIRMED with respect to the dismissal 

of King’s claim brought on behalf of her daughter or her estate based on a lack 

of subject matter jurisdiction. Insofar as King sought relief for her personal 

losses, the dismissal is AFFIRMED, but it is MODIFIED so as to be a dismissal 

of King’s personal claim based on her failure to state a claim upon which relief 

can be granted. FED. R. CIV. P. 12(b)(6).

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