              Case: 18-13777    Date Filed: 03/21/2019   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-13777
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 9:17-cv-81189-WJZ



ANTONIETTA BRINO,
as Personal Representative for the Estate of Carmine DePietto,

                                                                 Plaintiff - Appellant,

                                      versus

JFK MEDICAL CENTER LIMITED PARTNERSHIP, d.b.a. JFK Medical Center,
COLUMBIA PALM BEACH GP LLC,
GHC-GALEN HEALTH CARE LLC,
HCA HOLDCO LLC,
HEALTHTRUST, INC., - THE HOSPITAL COMPANY, et al.,

                                                           Defendants - Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (March 21, 2019)

Before TJOFLAT, WILLIAM PRYOR, and GRANT, Circuit Judges.
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PER CURIAM:

       Antonietta Brino, serving as the personal representative for the estate of

Carmine DePietto, sued to recover for Ms. DePietto’s death on March 1, 2015,

which allegedly resulted from an improper blood transfusion that she had received

just days prior. Brino’s 93-page First Amended Complaint, which is before us

now, alleges 11 claims for relief—two under federal law and nine under Florida

law—against 11 Defendants. Fortunately, to resolve the matter before us, we must

concern ourselves only with the two federal counts asserted only against two

groups of Defendants—(1) unnamed agents of HCA Healthcare, Inc. f/k/a HCA

Holdings, Inc. (“the HCA Agents”) and (2) JFK Medical Center Limited

Partnership d/b/a JFK Medical Center (“JFK”). Brino sued the HCA Agents under

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

388, 91 S. Ct. 1999 (1971), and sued JFK under 42 U.S.C. § 1983.1 Defendants

moved to dismiss the First Amended Complaint under Rule 12(b)(6) of the Federal



       1
          A § 1983 claim allows recovery against a state official who, acting in his individual,
official capacity, denies one’s rights under federal law. 42 U.S.C. § 1983.
         A Bivens claim, by contrast, allows recovery against a federal official. Ziglar v. Abbasi,
___ U.S. ___, 137 S. Ct. 1843, 1860 (2017). A judicially created analog to § 1983, it provides
relief for certain violations of the Fourth, Fifth, and Eighth Amendments. Id. at ___, 137 S. Ct.
at 1854. Because Bivens is an implied cause of action—not statutorily created by Congress as is
§ 1983—“expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” id. at ___, 137 S.
Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct. 1937, 1948 (2009)), and in
the past 30 years, the Supreme Court has “consistently refused to extend Bivens to any new
context or new category of defendants,” id. (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
68, 122 S. Ct. 515, 520 (2001)).


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Rules of Civil Procedure. The magistrate judge to whom the Motion was referred

recommended dismissal of the two federal counts because the HCA Agents and

JFK were not governmental actors. He also recommended that the Court decline to

exercise supplemental jurisdiction over the nine (remaining) state-law claims. The

District Court adopted the recommendation in toto. Brino appealed.

      We affirm because Brino has alleged no facts from which one can infer that

the HCA Agents or JFK are governmental actors and because the District Court did

not abuse its discretion in dismissing the remaining state-law claims. Because we

write for the parties, we set out facts only as they are needed to support our

analysis.

                                              I.

      We review de novo a district court’s dismissal under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. We follow a “two-pronged approach” when

evaluating a complaint. We first sift out allegations that are “mere conclusory

statements.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. We then determine

whether the remaining allegations, taken as true, “plausibly suggest an entitlement

to relief.” Id. at 681, 129 S. Ct. at 1951.

      Brino’s federal claims against the HCA Agents and JFK fail for the same

reason: neither party is a governmental actor. Both Bivens and § 1983 claims have

governmental action as one of their elements, see Wood v. Kesler, 323 F.3d 872,



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882 n.16 (11th Cir. 2003) (observing that § 1983 applies to “state actors” and that

Bivens applies to “federal actors”), and we apply the same analysis because the

“concept of action under color of federal law for purposes of a Bivens action is

almost identical to the doctrine of action under color of state law for purposes of a

§ 1983 action,” Morast v. Lance, 807 F.2d 926, 931 (11th Cir. 1987).

      A private party, like the HCA Agents and JFK, can be deemed a

governmental actor only if

      (1) the State has coerced or at least significantly encouraged the action
      alleged to violate the Constitution (‘State compulsion test’); (2) the
      private parties performed a public function that was traditionally the
      exclusive prerogative of the State (‘public function test’); or (3) ‘the
      State had so far insinuated itself into a position of interdependence
      with the private parties that it was a joint participant in the enterprise’
      (‘nexus/joint action test’).

Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)

(alterations omitted) (quoting NBC, Inc. v. Commc’ns Workers of Am., 860 F.2d

1022, 1026–27 (11th Cir. 1988)). Brino invokes the third method of establishing

state action—the nexus/joint action test.

      Brino alleges, and we accept these facts as true, that the federal government

and the State of Florida require the HCA Agents and JFK—before they may

perform blood transfusions—to adopt “procedures and rules” and an “internal risk

management program,” respectively. The nexus requirement for state action is met

as to each, she argues, because “if they want to be able to perform, they have to



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comply.” Quite simply, the “mere fact that a State regulates a private party is not

sufficient to make that party a State actor.” Rayburn, 241 F.3d at 1348. Brino

points to nothing more. Her approach, moreover, if adopted, would transform into

a governmental actor every private manufacturer or service provider that faces any

regulation.

       We lastly address the District Court’s decision not to exercise supplemental

jurisdiction over the nine state-law claims.

       We review for abuse of discretion a district court’s decision not to exercise

supplemental jurisdiction under 28 U.S.C. § 1367(c). 2 Parker v. Scrap Metal

Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006); see also Lucero v. Trosch,

121 F.3d 591, 598 (11th Cir. 1997) (“[T]he district court is in the best position to

weigh the competing interests set forth in § 1367(c) and Gibbs in deciding whether

it is appropriate to exercise supplemental jurisdiction.”). Because no federal

claims remained in this suit, and because the District Court dismissed the state-law

claims before any discovery had taken place, the Court did not abuse its discretion.

Cf. Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir.

1997) (affirming a district court’s decision not to exercise supplemental

jurisdiction when all federal claims were dismissed “prior to trial”).


       2
         The District Court had jurisdiction over the state-law claims because each is for
negligence per se or medical malpractice and forms part of the “same case or controversy” as the
federal claims. 28 U.S.C. § 1367(a).


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                                         II.

      We AFFIRM the District Court’s order of dismissal of Brino’s federal

claims for failure to state a claim upon which relief can be granted. We further

AFFIRM its order of dismissal of Brino’s state-law claims.

      SO ORDERED.




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