     Case: 13-40616      Document: 00512711837         Page: 1    Date Filed: 07/25/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40616
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 25, 2014
BETTE KING, on behalf of Jennifer C. Chaney,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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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    Case: 13-40616      Document: 00512711837     Page: 3   Date Filed: 07/25/2014


                                  No. 13-40616

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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