IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60224

Summary Calendar

NATHAN JENKINS,

Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; 

FEDERAL CORRECTIONAL INSTITUTION YAZOO CITY MEDIUM 

SECURITY PRISON; DOCTOR A. CHAMBERS, Medical Doctor/CD Federal 

Correctional Institution Yazoo City; DOCTOR NORMA NATAL-CASTRO, 

Medical Doctor Federal Correctional Institution Yazoo City,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:15-CV-908

Before REAVLEY, WILLETT, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Nathan Jenkins, formerly incarcerated federal prisoner # 10914-022, 

appeals the summary judgment dismissal of his complaint against federal 

officials that asserted claims of negligence under the Federal Tort Claims Act 

 

* 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

August 1, 2018

Lyle W. Cayce

Clerk

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No. 17-60224

2

(FTCA), 28 U.S.C. § 1346, and claims of Eighth Amendment violations under 

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 

388 (1971). With the benefit of liberal construction, Jenkins first challenges 

the district court’s ruling that he did not provide adequate evidence to survive 

summary judgment as to his claims that (1) the United States was liable under 

the FTCA for the medical negligence of its doctors and (2) prison medical 

officials were liable under Bivens for their deliberate indifference to his medical

needs for prompt eye treatment. Second, he contends that the district court 

erroneously granted immunity to the defendants. Third, Jenkins asserts that 

the district court erroneously denied his postjudgment motions under Federal 

Rules of Civil Procedure 59(e) and 60(b).

We “review[] a summary judgment de novo, using the same standard as 

that employed by the district court.” McFaul v. Valenzuela, 684 F.3d 564, 571 

(5th Cir. 2012). Summary judgment shall be granted “if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “The FTCA authorizes 

civil actions for damages against the United States for personal injury or death 

caused by the negligence of a government employee under circumstances in 

which a private person would be liable under the law of the state in which the 

negligent act or omission occurred.” Hannah v. United States, 523 F.3d 597, 

601 (5th Cir. 2008). “Under the [FTCA], liability for medical malpractice is 

controlled by state law.” Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir. 

1985). To establish a malpractice claim under Mississippi law, the plaintiff 

must show “(1) the existence of a duty by the defendant to conform to a specific 

standard of conduct for the protection of others against an unreasonable risk 

of injury; (2) a failure to conform to the required standard; and (3) an injury to 

the plaintiff proximately caused by the breach of such duty by the defendant.” 

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Estate of Sanders v. United States, 736 F.3d 430, 435-36 (5th Cir. 2013)

(internal quotation marks omitted). Regarding the FTCA claims, as the 

district court observed, Jenkins’s expert evidence does not meet the 

requirements to survive summary judgment. His expert evidence does not 

establish that, in Jenkins’s specific medical situation, a more prompt 

treatment would have led to a greater than 50 percent chance of a better result. 

See Sanders, 736 F.3d at 436-39. Nor does any of Jenkins’s other evidence of 

medical records make the required showing. See id. at 436-37.

A Bivens action may be sought for prison officials’ violation of the Eighth 

Amendment’s prohibition against cruel and unusual punishment when they 

are deliberately indifferent to a prisoner’s serious medical needs. Estelle v. 

Gamble, 429 U.S. 97, 101, 104-05 (1976). To the extent that Jenkins’s Bivens

claim asserted negligence or malpractice bases of liability for Dr. Norma NatalCastro in light of the expert evidence, the district court properly rejected it. 

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Jenkins’s expert 

evidence does not contain any statement that Natal-Castro consciously 

disregarded a substantial risk of serious harm. See Lawson v. Dallas Cty., 286 

F.3d 257, 262 (5th Cir. 2002). Likewise, Jenkins’s other evidence does not point 

to a genuine issue of material fact. See Carnaby v. City of Houston, 636 F.3d 

183, 187 (5th Cir. 2011). Natal-Castro’s medical judgment as Jenkins’s 

primary care physician about whether to recommend emergency care does not 

establish deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339, 346 

(5th Cir. 2006); Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 

(5th Cir. 2001); Varnado, 920 F.2d at 321. As to the Bivens claim against Dr. 

Anthony Chambers, the district court correctly noted that Chambers’s

undisputed status as an employee of the U.S. Public Health Service afforded 

him absolute immunity. Hui v. Castaneda, 559 U.S. 799, 812 (2010).

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Finally, we lack jurisdiction to consider Jenkins’s challenges to the 

district court’s denial of his postjudgment motions because Jenkins did not 

timely file a notice of appeal, or an amended notice of appeal, that designated

the court’s denial of those motions as a basis for his appeal. FED. R. APP. P. 

3(c)(1); FED. R. APP. P. 4(a)(1)(A), (a)(4)(B)(ii); see Bowles v. Russell, 551 U.S. 

205, 214 (2007); Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 589 

(5th Cir. 2009).

AFFIRMED IN PART AND DISMISSED IN PART. 

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