                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              June 19, 2006
                             No. 05-15623                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 03-00192-CV-OC-10-GRJ

RODERICK T. SIMPSON,


                                                           Plaintiff-Appellant,

                                  versus

CARLYLE HOLDER, et al.,

                                                                  Defendants,

UNITED STATES OF AMERICA,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (June 19, 2006)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Roderick T. Simpson, a federal prisoner proceeding pro se, appeals the

dismissal with prejudice of his amended complaint alleging claims against

Defendant the United States under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 1346(b). After review, we affirm.

                                      I. BACKGROUND

A.    Amended Complaint

      We first review the allegations in Simpson’s amended complaint against the

United States. Simpson is a federal prisoner at the Federal Correctional Complex

in Coleman, Florida (“Coleman prison”). After Coleman prison granted Simpson

permission to play flag football, Simpson injured his knee while playing flag

football on October 21, 2000.

      Simpson and his medical file were transported from Coleman prison to the

private hospital of Leesburg Regional Medical Center (“LRMC”) in Leesburg,

Florida, where an emergency room physician “snapped” his knee in place. After

the administration of “TPA,”1 Simpson’s condition worsened, and Drs. Roger W.

Sherman and J. Mandume Kerina at LRMC performed a fasciotomy on Simpson’s

knee. They discovered severe damage. During a second surgery, metal pins were

placed in the knee. Dr. Fernando Serra, also at LRMC, performed a debridement



      1
          Simpson refers to “TPA” without identifying what it is.

                                                 2
of Simpson’s leg wounds and a skin graft.

      On November 7, 2000, Simpson was transferred to the Federal Medical

Center at Rochester, Minnesota (“the prison hospital”). The doctors at the prison

hospital noted that Simpson’s leg appeared infected and had no movement and

poor sensation. Simpson was transferred to St. Mary’s Hospital, a private hospital

in Rochester, where antibiotics were administered. Further examination and

testing revealed that Simpson’s leg was entirely necrotic. On November 13, 2000,

doctors at St. Mary’s amputated Simpson’s leg from above the knee. On

December 12, 2000, doctors at St. Mary’s told Simpson he would be fitted for a

prosthesis at the prison hospital; however, Simpson alleges that he had yet to

receive one at the time he filed this suit on June 9, 2003.

      On July 15, 2002, Simpson filed an administrative claim with the Bureau of

Prisons (“BOP”), identifying the bases for his claim as the actions of doctors at the

LRMC, a private hospital. His claim named Drs. Sherman, Kerina, and Serra and

Dr. Ravi Gupta and other unknown doctors and nurses at LRMC and described

their negligence, as follows:

      The Claimant, Mr. Roderick Simpson, was transferred to Leesburg
      Regional Medical Center from Coleman Correctional Complex as a
      result of a dislocated knee, sustained while playing football. The
      Claimant Prison Medical files were transferred with him to the
      Hospital. The medical files contained information regarding the
      claimant’s diabetic history. The Leesburg Medical Doctors were

                                           3
      negligent in their treatment and lack of treatment to claiment [sic].
      The Doctors should have known that a reduced supply of blood to the
      lower extremities may cause irreversible damage and ultimately lead
      to the death of the leg tissues unless proper circulation is restored.

On December 20, 2002, the BOP denied Simpson’s claim, finding that he had not

alleged any negligence or wrongful action by government employees of the United

States or by the medical staff at Coleman prison, but only by medical contractors at

LRMC (a private hospital) over whom the United States did not exercise physical,

day-to-day control.

      On June 9, 2003, Simpson pro se filed this action alleging claims pursuant to

the FTCA and Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). His initial complaint named as

defendants: Carlyle Holder, the warden at Coleman prison; Gregory L. Parks, the

former warden; Jamie Cacho, a physician’s assistant at Coleman prison; a John

Doe defendant identified as a recreation specialist at Coleman prison; two John

Doe defendants identified as doctors at LRMC; Drs. Sherman, Kerina, Serra and

Gupta at LRMC; and other unknown BOP employees at Coleman prison and

doctors and nurses at LRMC.

      In a frivolity determination, the district court dismissed Simpson’s Bivens

claims against the individually named federal employees for failure to exhaust




                                         4
administrative remedies.2 The district court noted that the United States is the

proper defendant in a suit brought under the FTCA and ordered Simpson to file an

amended complaint against the United States.

      Simpson filed an amended complaint, entitled “Amended Complaint

Pursuant to Court Order(s) of December 11, 2003 and January 12, 2004 Federal

Tort Claim Act 28 U.S.C. §2672 et. seq.” His amended complaint asserts FTCA

claims against the United States for negligence by “the United States; its

employees; and its employees under contract . . . .” A footnote appended to the

style of his amended complaint states that the United States “includes any and all

its employees whom the Plaintiff specifically names within this complaint.” The

body of the amended complaint identifies as defendants: Jaimie Cacho at Coleman

prison and Drs. Sherman, Kerina and Serra at LRMC.

      As to the Coleman prison staff, Simpson’s amended complaint alleges

negligence: (1) in allowing Simpson to play football without first examining him

or his medical records and medically clearing him to play; and (2) in failing to

provide Simpson with a prosthesis. As to the LRMC medical staff, Simpson’s

amended complaint alleges negligence: (1) in failing to consult plaintiff’s prison

medical records before resetting his dislocated knee; (2) in placing metal pins and



      2
          Simpson does not appeal the dismissal of his Bivens claims.

                                                 5
staples in Simpson’s knee when they should have known that he would suffer

complications due to his diabetes; and (3) in prematurely performing a skin graft.

B.    Summary Judgment Notice

      On April 1, 2004, the magistrate judge issued an order styled “Order to

Answer and Notice to Plaintiff.” The order directed the defendant government to

answer Simpson’s amended complaint within 60 days of service.

      The April 1, 2004 order also warned Simpson that, if the defendant filed a

motion to dismiss and attached documents and supporting affidavits, the court

would treat the motion as a summary judgment motion. The order further warned

that Simpson would have twenty days to respond to the defendant’s converted

summary judgment motion and produce sworn affidavits and other documents

demonstrating a genuine issue of material fact or risk entry of final judgment in the

government’s favor, as follows:

             If Defendant files a motion to dismiss, Plaintiff shall have
      TWENTY (20) DAYS to file his response to the motion to dismiss.
      Pro se Plaintiff is advised out of an abundance of caution that the
      granting of this motion would represent an adjudication of this case
      which may foreclose subsequent litigation on the matter. If Defendant
      files a motion to dismiss that is supported by affidavits or other
      documents, the Court will construe the motion to dismiss as a motion
      for summary judgment, and Plaintiff shall have TWENTY (20)
      DAYS to file his response. If Defendant files a motion for summary
      judgment, Plaintiff shall have TWENTY (20) DAYS to file his
      response. In preparing a response to a motion to dismiss (construed as
      a motion for summary judgment), or a motion for summary judgment,

                                          6
      Plaintiff should be aware of the provisions of Rule 56 of the Federal
      Rules of Civil Procedure.
             Rule 56 provides that when a motion for summary judgment is
      supported by affidavits and/or other documents, the party opposing
      the motion may not depend on the mere allegations in his pleadings to
      counter it. Pursuant to Rule 56, the party opposing the motion must
      respond with counter sworn affidavits and/or documents to set forth
      specific facts showing that there is a genuine issue of material fact in
      dispute. If the opposing party fails to respond to the motion or
      responds, but the response does not comply with the requirements of
      Rule 56 as stated above, the Court may declare that the facts in the
      affidavits and/or documents supporting the motion are established as
      true and that there is no genuine issue of material fact in dispute. In
      that event, if the applicable law allows, the party or parties who filed
      the motion will be entitled to have the motion granted and final
      judgment entered in his/their favor based upon the pleadings,
      affidavits, and other documentation. If the motion is granted, there
      will be no trial, and the case will be terminated in this Court.

(Footnote omitted.)

C.    Defendant’s Motion to Dismiss

      About two months after the above notice was sent, the defendant

government did file a motion to dismiss, arguing that Simpson failed to exhaust

available administrative remedies as to the Coleman prison staff claims. With

regard to the LRMC medical claims, the government’s motion argued that it could

not be held liable under the FTCA for acts of its medical contractors at LRMC. In

support of its motion, the government submitted evidence, including, inter alia,

various documents and a declaration indicating that Drs. Sherman, Kerina and

Serra were members of LRMC’s staff, not federal employees at Coleman prison,

                                          7
and provided medical services to the prison on a contract basis.

      Simpson filed a response to the motion, which he styled “Plaintiff’s

Affidavit in Opposition to Defendant’s Motion to Dismiss Amended Complaint.”

Simpson’s response was sworn to and signed by Simpson. He also attached two

pages of his medical records to his response.

      The district court granted the motion and dismissed Simpson’s amended

complaint with prejudice. As to the individual defendants, the district court

concluded that the proper defendant in FTCA claims is the United States and

Simpson’s FTCA claims against the individual defendants were improper and must

be dismissed. As to the liability of the defendant United States, the district court

determined that: (1) Simpson had failed to exhaust his administrative remedies

with regard to his Coleman prison staff claims; and (2) the United States could not

be held liable under the FTCA for the negligence of the doctors and nurses at

LRMC, a private hospital, because they were independent contractors. Although

ruling on a motion to dismiss, the district court relied on the government’s

evidence about the medical persons being independent contractors and noted that

Simpson had not alleged that the BOP supervised the doctors’ day-to-day activities

at the LRMC hospital. Simpson timely appealed.




                                           8
                                 II. DISCUSSION

A.    Individual Defendants

      The United States is the only proper defendant in an FTCA action. See 28

U.S.C. § 2679(a), (b); see also Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078

(9 th Cir. 1998); Galvin v. OSHA, 860 F.2d 181, 183 (5 th Cir. 1988); Mars v.

Hanberry, 752 F.2d 254, 255 (6 th Cir. 1985). Therefore, the district court properly

dismissed Simpson’s FTCA claims against the individually named defendants.

B.    Administrative Exhaustion

      As to Defendant the United States, the district court properly dismissed

Simpson’s FTCA claims based on acts of the Coleman prison staff. Before a

plaintiff may file suit asserting an FTCA claim for negligence, the plaintiff must

have “first presented the claim to the appropriate Federal agency.” 28 U.S.C. §

2675(a). “Section 2675(a) is satisfied if the claimant (1) gave the appropriate

agency written notice of the tort claim to enable the agency to investigate; and (2)

stated a sum certain as to the value of the claim.” Orlando Helicopter Airways v.

United States, 75 F.3d 622, 625 (11 th Cir. 1996). Compliance with § 2675(a) is a

jurisdictional prerequisite to maintaining an FTCA action. Tidd v. United States,

786 F.2d 1565, 1567 (11 th Cir. 1986).

      Simpson’s amended complaint against the United States for the acts of the



                                          9
Coleman prison staff alleged that the staff: (1) failed to clear him medically before

permitting him to play flag football in prison, and (2) refused to fit him with a

prosthesis.3 However, Simpson’s administrative complaint filed with the BOP

described only the allegedly negligent medical treatment he received for his injured

knee. It did not mention the prison staff’s alleged failure to screen him prior to his

playing football. In fact, his administrative complaint did not name any Coleman

prison personnel when identifying those involved in his injury. It also did not

mention the prison staff’s alleged failure to provide him with a prosthesis. Even

under a liberal construction of Simpson’s administrative complaint, the district

court properly concluded that Simpson’s flag football and prosthesis claims fell

outside the scope of his administrative complaint and had not been exhausted.

C.     Medical Claims

       The FTCA provides a limited waiver of sovereign immunity for claims

against the United States for the negligence of “any employee of the Government .

. . .” 28 U.S.C. § 1346(b)(1). The United States is not liable under the FTCA for

the negligence of “any contractor with the United States.” 28 U.S.C. § 2671. The

distinction between an employee and an independent contractor turns on the power

of the United States “to control the detailed physical performance of the


       3
         It is unclear whether Simpson now has a prosthesis, but construing the pleadings
liberally and in a light most favorable to Simpson, we will assume he does not.

                                               10
contractor.” Logue v. United States, 412 U.S. 521, 527-28, 93 S. Ct. 2215, 2219

(1973). That is, the United States is not liable for a contractor’s negligence unless

it supervises the contractor’s “day-to-day operations . . . .” Id. at 529, 93 S. Ct. at

2220.4

         In analyzing whether the medical doctors and nurses at LRMC were

employees or independent contractors, the district court relied on matters outside

the pleadings. The district court then dismissed Simpson’s claims under Rule

12(b)(1) for lack of subject matter jurisdiction.

         However, the government’s motion to dismiss was a facial attack on subject

matter jurisdiction that was intertwined with the merits of Simpson’s claim.

Whether the LRMC medical staff are government employees or independent

contractors affects both subject matter jurisdiction under the FTCA and the merits

of the FTCA claim. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11 th Cir. 1990)

(concluding that whether an employee was acting within the scope of his

employment implicated both subject matter jurisdiction and the merits of the

FTCA claim); see also Tisdale v. United States, 62 F.3d 1367, 1370-71 (11th Cir.

1995) (affirming district court’s decision at summary judgment that the United

States was not liable for contractor’s actions forming the basis of the FTCA claim).


         4
       We review de novo dismissals for lack of subject matter jurisdiction under the FTCA.
Ochran v. United States, 273 F.3d 1315, 1317 (11th Cir. 2001).

                                             11
As the district court considered matters outside the pleadings, the district court

was required to comply with the notice requirements of Rule 56. See Fed. R. Civ.

P. 56(c); Massey v. Cong. Life Ins. Co., 116 F.3d 1414, 1417 (11 th Cir. 1997). The

district court did so here through the magistrate judge’s “Order to Answer and

Notice to Plaintiff.” Given the clarity and thoroughness of the notice given in the

magistrate judge’s order, coupled with the fact that Simpson responded to the

motion by producing a sworn statement and documents of his own, we conclude

that the notice given here was sufficient. See Coleman v. Smith, 828 F.2d 714,

715-17 (11 th Cir. 1987) (concluding that orders by magistrate judge prior to district

court’s ruling upon converted motion to dismiss adequately notified pro se litigant

under Rule 56(c)).

      Even assuming the Rule 56(c) notice should have been sent again after the

motion to dismiss had been filed with supporting declarations and documents, any

error was harmless. See Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 850 (11 th

Cir. 1986) (applying harmless error analysis to failure to give Rule 56(c) notice).

Simpson has never alleged or argued that the government supervised the day-to-

day operations of the LRMC medical staff who treated him. Indeed, on appeal

Simpson contends that the government failed to supervise the LRMC medical staff

who treated him. Given that Simpson does not dispute that the LRMC medical



                                          12
staff were independent contractors and that the government did not supervise them,

any failure to give Simpson adequate Rule 56(c) notice was harmless. See Byrne

v. Nezhat, 261 F.3d 1075, 1104 n.63 (11 th Cir. 2001) (concluding that district

court’s failure to give Rule 56(c) notice was harmless error where there was no

factual dispute).

      For all these reasons, the district court properly concluded that the United

States was immune from suit under the FTCA for the acts of the doctors and nurses

at LRMC, a private hospital.

             AFFIRMED.




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