                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           DEC 14 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

GEORGE SWAILS,                                   No. 09-17196

              Plaintiff - Appellant,             D.C. Nos. 2:07-cv-00864-LRH-RJJ
                                                           2:07-cv-01329-LRH-RJJ
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                           Submitted December 6, 2010 **
                             San Francisco, California

Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.

       Appellant George Swails (“Swails”) appeals the dismissal of his lawsuit

against the United States of America under the Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 1346(b), 2401, 2671-2680. We review de novo the district court’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissal without prejudice or leave to amend. Oki Semiconductor Co. v. Wells

Fargo Bank, 298 F.3d 768, 772 (9th Cir. 2002). We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm the district court’s decision.

      Swails’s suit against the United States arises out of treatment for the

infection of his finger. SER 3. Swails was treated at the North Las Vegas Family

Health Center by P. James Somers, a physician assistant. SER 2. Both the Center

and Mr. Somers are covered under the FTCA by operation of the Federally

Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n). The district

court dismissed Swails’s suit, finding that he had failed to submit an affidavit of

merit as required by law. Swails appeals the district court’s dismissal, arguing that

the affidavit requirement does not reach his claim because he did not file suit

against a physician or hospital. We disagree.

      Claims made under the FTCA are governed by the substantive law of the

state in which the claim arose. 28 U.S.C. § 1346(b)(1). Nevada law provides:

    If an action for medical malpractice or dental malpractice is filed in the
    district court, the district court shall dismiss the action, without prejudice,
    if the action is filed without an affidavit, supporting the allegations
    contained in the action, submitted by a medical expert who practices or
    has practiced in an area that is substantially similar to the type of practice
    engaged in at the time of the alleged malpractice.




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Nev. Rev. Stat. § 41A.071. Medical malpractice, in turn, is defined as “the failure

of a physician, hospital or employee of a hospital, in rendering services, to use the

reasonable care, skill or knowledge ordinarily used under similar circumstances.”

Id. § 41A.009. Finally, a physician is defined as “a person licensed pursuant to

chapter 630 or 633” of the Nevada Revised Statutes. Id. § 41A.013. Physician

assistants, such as Somers, are licensed under chapter 630, see id. § 630.015, and

are therefore physicians for the purposes of a medical malpractice claim. We

conclude that Swails has alleged a medical malpractice claim and was obliged to

submit an affidavit of merit when he filed suit.1 Swails’s arguments to the contrary

are unavailing. The state’s statutory definitions are clear. “Where a statute is clear

on its face, a court may not go beyond the language of the statute in determining

the legislature’s intent.” McKay v. Bd. of Supervisors, 730 P.2d 438, 441 (Nev.

1986); see also United States v. Leal-Felix, --- F.3d ---, No. 09-50426, 2010 WL

4273363, at *7 (9th Cir. Nov. 1, 2010) (“‘[C]ourts must presume that a legislature

says in a statute what it means and means in a statute what it says there. When the

statutory language is plain, the sole function of the courts—at least where the



      1
       Swails’s own complaint supports the conclusion that he has filed a medical
malpractice claim. He labeled it as such in his first complaint in state court, see
ER 40, and his allegations involve Somers’ and the Center’s duty to “exercise
reasonable care for [his] health and safety.” SER 2.

                                           3
disposition required by the text is not absurd—is to enforce it according to its

terms.’” (quoting Carr v. United States, 130 S. Ct. 2229, 2242 (2010))).

      The Nevada Supreme Court has held that a complaint filed without the

supporting affidavit is “void ab initio, meaning it is of no force and effect.”

Washoe Med. Ctr. v. Second Judicial Dist. Court, 148 P.3d 790, 794 (Nev. 2006).

Such a complaint “does not legally exist and thus it cannot be amended.” Id.

Accordingly, the district court properly granted the government’s motion to

dismiss without prejudice.

      AFFIRMED.




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