UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ DOREEN JANICE CURRY, Plaintiff - Appellant,

v. ST. FRANCIS HOSP ITAL; RALPH T. BOONE, M.D., Defendants - Appellees. No. 21-5008 (D.C. No. 4:20-CV -00673-CVE-JFJ) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Doreen Janice Curry, proceeding pro se, 1 appeals the district court’s order dismissing her medical malpractice action fo r lack of subject-mat ter jurisdiction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal but remand to the district court with in structions to modify the dism issal to be without prejudice.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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.

1 We liberally construe Curry’s filings but will not serve as her advocate. James v. Wadas , 724 F.3d 1312, 1315 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### December 17, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 12 BACKGROUND In December 2020, Curry filed a two-page complaint in district court against St. Francis Hospital and Dr. Ralph Boone, raising a single claim of “medical negligence” in connection with three surgeries performed at the hospital. R. at 3. Curry alleged all parties were citizens of Oklahoma, and she sought an unspecified amount of “medical compensation.” Id. at 3-4. Curry also a ttached to her complaint a “Notice of Appeal,” purporting to appeal to the district court an adverse ruling by the Oklahoma Supreme Court. Id. at 5. The district court sua sponte dismissed the action with prej udice for lack of jurisdiction. The court first concluded that the complaint failed to establish either federal-question jurisdiction or diversity jurisdiction. Th e court also noted that the publicly available docket shee t from Curry’s state court ca se indicated that: (1) she alleged negligence in connection with surg eries performed in 2002, 2004, and 2009; (2) the state district court granted summa ry judgment for St. Francis Hospital and Dr. Boone based on the statute of limita tions; (3) the Oklahoma Court of Civil Appeals affirmed; and (4) th e Oklahoma Supreme Court denied Curry’s petition for a writ of certiorari. Because the “Notice of Appeal” Curry attach ed to her complaint indicated she was attempting to seek further appellate review of her state court case, the district court concluded that even if it had federal-que stion or diversity Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 23 jurisdiction, the action wa s “plainly” barred by the Rooker

- Feldman doctrine. 2 Id.
at 9. See generally Exxon Mobil Corp . v. Saudi Basic Indus. Corp. , 544 U.S. 280, 287 (2005) (noting the doctrin e “bars a losing party in stat e court from seeking what in substance would be appellate review of the state judgment in a United States district court” (internal quotation marks omitted)). This appeal followed.
DISCUSSION We review de novo a district court’s dismissal of an action for lack of subjectmatter jurisdiction. Green v. Napolitano , 627 F.3d 1341, 1344 (10th Cir. 2010). “The party invoking a court’ s jurisdiction bears the burde n of establishing it.” Id. To determine whether Curry met her burden, we “look to the face of the complaint, ignoring mere conclusory al legations of jurisdiction.” Spring Creek Expl. & Prod. Co. v. Hess Bakken Inv., II, LLC , 887 F.3d 1003, 1014 (10th Cir. 2018) (internal quotation marks omitted). “Federal courts are courts of limited ju risdiction” and “posse ss only that power authorized by Constitu tion and statute.” Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994). Congress has authorized federal courts to hear controversies arising unde r federal law—i.e., “feder al-question jurisdiction,” see 28 U.S.C. § 1331—and controve rsies arising between citi zens of different states—

2 The doctrine derives its name from Rooker v. Fidelity Trust Co. , 263 U.S. 413 (1923), and District of Columbia Cour t of Appeals v. Feldman , 460 U.S. 462 (1983). Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 34 i.e., “diversity jurisdiction,” see id. § 1332. The district court found both forms of jurisdiction lacking. We agree. Federal-question jurisdiction exists unde r § 1331 if the “complaint establishes either that federal law creates the cause of action or that th e plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law.” Nicodemus v. Union Pac. Corp. , 440 F.3d 1227, 1232 (10t h Cir. 2006) (internal quotation marks omitted). The district court concluded that Curry’s complaint alleged only a state-law claim for medica l malpractice and did not include “any allegations that could be cons trued as a claim arising under fe deral law.” R. at 8. On appeal, Curry asserts for the first time that her action was based on 42 U.S.C. § 1983 and a violation of the Firs t, Fifth, and Fourteenth Amendments to the United States Constitution. In additi on to being too conclu sory and perfunctory to merit review, see United States v. Wooten , 377 F.3d 1134, 1145 (10th Cir. 2004), these arguments were not raised before th e district court and, thus, are forfeited, see Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1127-28 (10th Ci r. 2011). In any event, ordinary medical malpractice does not state a § 1983 claim. See Estelle v. Gamble , 429 U.S. 97, 106 (1976). Next, diversity jurisdiction under § 1332 requires “that complete diversity of citizenship exist[] be tween the adverse parties and th at the amount in controversy exceed[] $75,000.” Dutcher v. Matheson , 733 F.3d 980, 98 7 (10th Cir. 2013) (internal quotation marks omitted). Setting aside Curry’s failure to plead an amount Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 45 in controversy exceeding $75,000, 3 the district court corr ectly observed that the complaint “alleges that all of the parties are ci tizens of Oklahoma.” R. at 8. “Diversity jurisdiction require s complete diversity—no plai ntiff may be a citizen of the same state as any defendant.” Grynberg v. Kinder Morgan Energy Partners,
L.P. , 805 F.3d 901, 905 (10th Cir. 2015). B ecause Curry alleged all parties were citizens of Oklahoma, she fail ed to establish complete diversity as necessary for diversity jurisdiction. 4 Ultimately, Curry devotes the bulk of he r briefs to contesting the state courts’ statute-of-limitations rulings and offers virtually no challe nge to the district court’s reasoning and conclusion that it lacked subject-matter ju risdiction over the present action. See Nixon v. City & Cnty. of Denver , 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an appella nt is to explain to us why the district court’s decision was wrong.”). Having reviewed the record, we agree that the di strict court lacked subject-matter jurisdiction. And because we find no independen t basis for federal jurisdiction, we need not address the cour t’s alternative ruling that the action was barred by the Rooker

- Feldman doctrine. However, becau se the court dismissed the

3 Curry notes in her reply brief that she identified an amount exceeding the $75,000 threshold in a 2011 lette r she sent to the defendants, in which she originally threatened litigation. Curry waived this issue by rais ing it for the first time in her reply brief. See Gutierrez v. Cobos , 841 F.3d 895, 902 (10t h Cir. 2016). In any event, she did not plead any specific damage s in her complaint a nd did not attach the 2011 letter to her complaint or otherwis e provide it to the district court.

4 Curry concedes as much on appeal. See Aplt. Reply Br. at 4 (acknowledging “complete diversity di d not exist”). Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 56 action for lack of subject-ma tter jurisdiction, th e dismissal should have been entered without prejudice rather than with prejudice. See Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit holds that where the district court dismisses an action for lack of jurisdiction, as it did here, the dismissal must be without prejudice.”). We therefore remand the matter to the district court to modify th e dismissal to be without prejudice.
CONCLUSION The district court’s judgment is affirmed in part and remanded in part with instructions to modify the dismi ssal to be without prejudice.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 21-5008 Document: 010110620529 Date Filed: 12/17/2021 Page: 6