                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                               No. 00-51006
                             Summary Calendar



                          WILLIAM LOGAN KENNEDY,

                                                    Plaintiff-Appellant,

                                   versus

                        UNITED STATES OF AMERICA,

                                                     Defendant-Appellee.



             Appeal from the United States District Court
                   for the Western District of Texas
                            (A-99-CV-636-JN)

                          June 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     William Logan Kennedy, formerly a federal prisoner, appeals,

pro se, the summary-judgment dismissal of his Federal Tort Claims

Act action, which claimed he received negligent medical treatment

while in prison.        A summary judgment is reviewed de novo.        See

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.

1996).

     The United States is liable for its torts if a private person

would be liable for the same act or omission under local laws.          28

U.S.C.   §   1346(b).      Under   the   FTCA,   liability   for   medical


     *
      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this opinion should not be published and is not precedent except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.
malpractice is controlled by state law.       See Ayers v. United

States, 750 F.2d 449, 452 n.1 (5th Cir. 1985); see also Urbach v.

United States, 869 F.2d 829, 831 (5th Cir. 1989).

     A plaintiff in a Texas medical malpractice action must prove

four elements to establish liability:     “(1) a duty owed by the

defendant to the plaintiff, (2) a breach of that duty, (3) actual

injury to [the] plaintiff, and (4) ... the breach [was] a proximate

cause of the injury”.   Id.   A physician has a duty to render care

to a patient with the degree of ordinary prudence and skill

exercised by physicians of similar training and experience in the

same or similar community under the same or similar circumstances.

Speer v. United States, 512 F. Supp. 670, 675 (N.D. Tex. 1981),

aff’d on basis of district court’s opinion, 675 F.2d 100 (5th Cir.

1982). Texas tort law “places the burden of proof on the plaintiff

to establish by expert testimony that the act or omission of the

defendant physician fell below the appropriate standard of care and

was negligent”.   Rodriguez v. Pacificare of Texas, Inc., 980 F.2d

1014, 1020 (5th Cir.), cert. denied, 508 U.S. 956 (1993).

     The summary-judgment dismissal was appropriate because Kennedy

failed to prove any breach of care.   The Government presented the

affidavit testimony of a medical expert opining that the treatment

Kennedy had received was consistent with the standard of care owed

him, and Kennedy offered no competent evidence by a medical expert

to counter the Government’s evidence which would have created a

material fact issue regarding breach and, thereby, precluding

summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-


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24 (1986); see also Rodriguez, 980 F.2d at 1020.          Kennedy’s

conclusional assertions of negligence were insufficient to carry

his summary-judgment burden.   See Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc).         Furthermore, his

conclusional allegations, for the first time on appeal, that Dr.

Tew’s affidavit contained errors and perjury and was thus not

competent summary judgment evidence, are insufficient to carry his

summary-judgment burden, id., even if we could consider arguments

raised for the first time on appeal, Bayou Liberty Ass’n, Inc. v.

United States Army Corps of Eng’rs, 217 F.3d 393, 398 (5th Cir.

2000).

     Kennedy asserts that the district court erred in failing to

order Officer Dyer, his prison work supervisor, to submit an

affidavit and moves this court to order the requested affidavit.

His argument is without merit, and his motion is DENIED,    because

the Officer’s testimony would be irrelevant to the dispositive

question (whether the prison medical staff breached the duty of

care owed Kennedy) in that the Officer is not a medical expert.

See Rodriguez, 980 F.2d at 1020.

     Kennedy additionally contends that the district court erred in

failing to appoint a medical expert and counsel to assist him in

the preparation of his case.   Because he has made no showing of

indigence or of his inability to locate and retain an expert, he

has not demonstrated that the district court abused its discretion

in denying the motion for an expert.   See United States v. Walborn,

730 F.2d 192, 194 (5th Cir.), cert. denied, 469 U.S. 842 (1984).


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Kennedy has similarly failed to show that the district court erred

in denying his motion for counsel because his case does not present

any   exceptional    circumstances       warranting    the   appointment      of

counsel.   See Richardson v. Henry, 902 F.2d 414, 417 (5th Cir.),

cert. denied, 498 U.S. 901 (1990); Ulmer v. Chancellor, 691 F.2d

209, 213 (5th Cir. 1982).

      Kennedy’s remaining contentions — that the district court

erred in construing his claims as medical-malpractice rather than

negligence and that “there was something prejudicial” about the

district   court    having   assigned     aspects     of   his   case   to   two

magistrate judges — are facially frivolous.


                                  JUDGMENT AFFIRMED; MOTION DENIED




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