*Pursuant to 5

TH 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 5

TH CIR.

R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20111

Summary Calendar

JAMES M. RUTLEDGE; PAUL L. RUTLEDGE, SR. ESTATE,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA; DEPARTMENT OF HEALTH,

EDUCATION, AND WELFARE; UNITED STATES PUBLIC 

HEALTH SERVICE; THE UNITED CENTER FOR DISEASE

CONTROL; CASPER WEINBERGER, SECRETARY HEW;

CHARLES C. EDWARDS; JOHN DOE, SECRETARY, SECTIONS

A THROUGH Z; JOHN DOE, CHIEF, SECTIONS A THROUGH

Z; JOHN DOE, ASSISTANT CHIEF, SECTIONS A THROUGH Z;

THE STATE OF TEXAS; THE STATE OF TEXAS BOARD OF

HEALTH; TEXAS STATE HEALTH OFFICER AND EXECUTIVE

DIRECTOR; MEMORIAL FUND CORPORATION; STATE BOARD

OF INSURANCE; STATE CORPORATION BOARD; D.H. STANNARD;

E.C. WHITE; C.C. SHULLENBERGER, DOCTOR; R. FRANKEN,

DOCTOR; W.D. SEYBOLD; R.G. DAWSON; WHEELER S. BOOTH,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-3025)

October 2, 1998

Before POLITZ, Chief Judge, JOLLY and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:*
 

1 Rutledge also sued the State of Texas, its departments, its department heads, and other

individuals, but this appeal does not concern those allegations.

 

2

 28 U.S.C. §§ 2671-2680.

 

3

 42 U.S.C. § 1983.

 

4 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971).

 

5 Vander Zee v. Reno, 73 F.3d 1365 (5th Cir. 1996).

2

James M. Rutledge contends that the district court erred in dismissing his

allegations against the United States, federal agencies, and federal officialsforlack

of jurisdiction. For the reasons assigned, we affirm.

Background

Rutledge, personally and as executor of the estate of his father, Paul L.

Rutledge, Sr., sued the United States, various federal agencies, and the heads of

those agencies.1 Rutledge alleged that during the 1950s the Department of Defense

and other federal organizations directed personnel at the M.D. Anderson Hospital

to conduct human radiation experiments upon his father. Rutledge invoked

jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 1346(b) for

his allegations underthe Federal TortClaims Act,2 Section 1983,3andBivens.

4

 The

district court dismissed for lack of jurisdiction. Rutledge timely appealed.

Analysis

We review dismissals for lack of jurisdiction under Rule 12(b)(1) and

12(b)(6) de novo, accepting the allegations of the complaint.5

1. Federal Tort Claims Act

The district court dismissed the FTCA claims for lack of subject matter
 

6 McClellon v. Lone Star Gas Co., 66 F.3d 98 (5th Cir. 1995).

 

7 United States v. Mitchell, 445 U.S. 535 (1980).

 

8

 28 U.S.C. § 2675(a).

3

jurisdiction for failure of exhaustion of administrative remedies as required by

28 U.S.C. § 2675(a). Rutledge concedes that he did not present his claim to any

federal agency but, he contends- for the first time on appeal - that the United States

should be equitably estopped from raising this jurisdictional bar. Controlling

precedent requires that we treat as waived arguments raised for the first time on

appeal, absent grave injustice.6 No such injustice would result herein. More

importantly in the case at bar, only Congress can waive the immunity of the United

States from tort suits.7 We may not deviate from Congress’s clear statutory

requirement: One first must have “presented the claim to the appropriate Federal

agency . . . .”8 The district court did not err in dismissing the FTCA claims for lack

of subject matter jurisdiction.

2. Section 1983

The district court dismissed the Section 1983 claims because there is no

allegation of any violation of federal rights committed under color of state law.

The trial court therefore properly concluded that the complaint failed to state a

cause of action upon which relief could be granted under the statute and dismissed

same under Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) challenge, the

complaint must allege the deprivation of a federally protected right and that the
 

9

 42 U.S.C. § 1983; Barnes v. Lehman, 861 F.2d 1383 (5th Cir. 1988).

 

10 Id.

 

11 Kentucky v. Graham, 473 U.S. 159 (1985); Bennett v. Pippin, 74 F.3d 578 (5th Cir.),

cert. denied, 117 S.Ct. 68 (1996).

 

12 Mitchell, 445 U.S. at 538.

 

13 Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471 (1994); Sanchez v. Rowe, 870

F.2d 291 (5th Cir. 1989).

4

person who deprived the plaintiff of that right acted under color of state law.9 That

requisite has not been met herein. Rutledge does not allege that the United States,

its agencies, or its officials acted under the color of state law.10

3. Bivens Actions

Rutledge correctly notes that Section 1331 provides a district court with

subject matter jurisdiction over Bivens claims. Nevertheless, the district court

lacked jurisdiction over the Bivens claims. Rutledge sued the federal officials in

their official capacity, rather than in their individual capacity. Because we must

treat such official capacity suits as suits against the sovereign,11 Rutledge is

invoking federal jurisdiction for a Bivens action against the United States. For

jurisdiction to be proper in such an action, the United States must have consented.12

Rutledge claims the FTCA as a source for such consent, but that statute is of no

avail. Constitutional torts are not actionable under the FTCA.13 We perforce must

conclude that the district court lacked jurisdiction to hear the asserted Bivens

claims.

Finally, Rutledge seeks leave to amend his complaint to cure the “official

capacity” defect. Leave to amend is not appropriate when amendment would be
 

14 Federal Deposit Ins. Corp. v. Conner, 20 F.3d 1376 (5th Cir. 1994).

 

15 TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1996); Alford v. United

States, 693 F.2d 498 (5th Cir. 1982) (looking to state law forstatute of limitationsin Bivens

claim). 

 

16 Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998).

 

17 Id. at 320-21.

5

futile.14 Here, a remand with leave to amend would prove futile because the Texas

statute of limitations stands as a bar to the Bivens claims.15 That leaves only the

“relation back” concept which provides no surcease herein. Although claims may

be related back to the date of their initial filing under Fed.R.Civ.P. 15,relation back

in this instance would be futile because Rutledge failed to notify the named

defendants of his suit.

16 Also, relation back is inapplicable because under our

precedents Rule 15(c) does not permit substitution of named defendants for “John

Doe” defendants.17

Appellants’ motion for judicial notice of their appendix is denied.

The judgment appealed is AFFIRMED.