     Case: 17-10139      Document: 00514208321         Page: 1    Date Filed: 10/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit

                                                                                   FILED
                                    No. 17-10139                            October 24, 2017
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
CHARLIE WILSON, as executor of the Estate of Debra Wilson, substituted in
place and stead of Debra Wilson, deceased,

                                                 Plaintiff - Appellant
v.

DALLAS COUNTY HOSPITAL DISTRICT, doing business as Parkland
Health & Hospital System; JOHN DOES,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-3942


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Charlie Wilson, surviving spouse of Plaintiff Debra
Wilson, appeals the district court’s grant of the Defendant-Appellee’s motion
to dismiss and the denial of his motion for new trial. 1               We AFFIRM the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1 This Court previously granted the unopposed motion for leave to substitute Charlie

Wilson, who is executor of his wife’s estate, as Appellant in the instant appeal.
    Case: 17-10139     Document: 00514208321     Page: 2   Date Filed: 10/24/2017



                                    17-10357
judgment dismissing the federal claims for failure to state a claim and
AFFIRM as MODIFIED the order denying the motion for new trial.
      I.    FACTUAL AND PROCEDURAL HISTORY

      In November 2007, Plaintiff Debra Wilson (“Wilson”) underwent a heart
catheterization procedure performed at Defendant-Appellee Parkland Health
& Hospital System (“Parkland”). Plaintiff-Appellant contends that during this
procedure the hospital staff negligently left a piece of a plastic catheter in
Wilson’s body.    Appellant claims that although Wilson received multiple
treatments (including x-rays) at Parkland over the next seven years, Parkland
deliberately withheld and concealed this information from her.
      In August 2014, Wilson sought care from the emergency room at
Parkland, and a CT angiography revealed the calcified catheter fragment
extended from her thoracic aorta to her abdominal aorta.           Subsequently,
Wilson was advised of this discovery.
      In August 2015, Wilson brought suit in state court against Parkland and
Dr. John Doe, alleging, among other things, negligence, lack of informed
consent, and fraudulent nondisclosure. Parkland responded by filing a plea to
the jurisdiction and motion for summary judgment. Wilson amended her suit
to add claims under federal law, including violation of a constitutional right to
bodily privacy/right against bodily intrusion, cover-up of violation of federal
constitutional rights, conspiracy to violate federal constitutional rights, and an
alternative claim for unconstitutional taking pursuant to the Fifth
Amendment.
      Parkland filed a notice of removal of the case to the Northern District of
Texas. Shortly thereafter, Parkland filed a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).       In response,
Wilson amended her complaint. Parkland filed a second motion to dismiss for

                                        2
    Case: 17-10139      Document: 00514208321       Page: 3    Date Filed: 10/24/2017



                                      17-10357
failure to state a claim. The parties consented to proceed before a magistrate
judge.
      The magistrate judge issued an opinion dismissing Wilson’s federal
claims for failure to state a claim.       The opinion also declined to exercise
supplemental jurisdiction over the state law claims, and thus, the state law
claims were remanded to state court. Subsequently, Wilson passed away.
      Pursuant to Federal Rule of Civil Procedure 59, Charlie Wilson filed a
motion for new trial and, in the alternative, for leave to allow him to amend
the complaint. The magistrate judge denied this motion, stating that “it lacked
subject matter jurisdiction because Plaintiff’s federal claims did not survive
Parkland’s motion to dismiss; the basis of the Court’s jurisdiction under section
1331. This Court no longer has jurisdiction in this matter. Therefore, the
Court is without the requisite authority to grant Plaintiff leave to file an
amended complaint.” Opinion at 4. The magistrate judge also quoted the
following language from Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir.
1984): “The federal court is completely divested of jurisdiction once it mails a
certified copy of the order to the clerk of the state court.” Id. 2      Wilson now
appeals.
      II.    ANALYSIS

             A. Appellate Jurisdiction

      Parkland asserts that although this Court has jurisdiction to review the
magistrate judge’s order dismissing Wilson’s federal claims, we do not have
jurisdiction to review either the magistrate judge’s (1) denial of Wilson’s Rule
59 motion or (2) the remand order because it was “premised on [a] lack of
subject matter jurisdiction.” Brief at p.23 & Statement of Jurisdiction.


      2 The magistrate judge denied as moot the unopposed Notice of Suggestion of Death
and the Unopposed Motion for Leave to Substitute Plaintiff.
                                          3
    Case: 17-10139     Document: 00514208321      Page: 4    Date Filed: 10/24/2017



                                    17-10357
      As previously set forth, in its remand order, the magistrate judge
expressly stated that it declined to exercise supplemental jurisdiction over
Wilson’s remaining state law claims. This Court has explained that it “has
jurisdiction to review a remand order unless the case was remanded for lack of
subject matter jurisdiction or there was a defect in the removal procedure.
Camsoft Data Systems, Inc. v. S. Elec. Supply, Inc., 756 F.3d 327, 332 (5th Cir.
2014) (citing 28 U.S.C. §§ 1447(c), (d); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 637 (2009)). When a district court declines to exercise supplemental
jurisdiction over state law claims, that “decision is not jurisdictional.” Id.
Indeed, this Court has “consistently exercised appellate jurisdiction to review
remand orders in which ‘the district court declined to exercise supplemental
jurisdiction after first concluding it lacked original subject matter jurisdiction
[over the state law claims].’” Jefferson v. Certain Underwriters at Lloyd’s
London, 658 F. App’x 738, 740 (5th Cir. 2016) (quoting Vaillancourt v. PNC
Bank, Nat. Ass'n, 771 F.3d 843, 846 (5th Cir. 2014)).           Thus, contrary to
Parkland’s assertions otherwise, this Court has jurisdiction to review the
magistrate judge’s orders.
            B. Dismissal of Federal Claims
      We review de novo a district court’s grant or denial of a Rule 12(b)(6)
motion, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Stokes v. Gann, 498 F.3d 483, 484 (5th
Cir. 2007). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”   Id. (citation omitted).    A “claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
                                        4
    Case: 17-10139    Document: 00514208321     Page: 5   Date Filed: 10/24/2017



                                   17-10357
alleged.” Id. “Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id. at 1950.
      Wilson contends that without adequate discovery, he could not know the
specific facts needed to survive the motion to dismiss for failure to state a
claim. Blue brief at 18. We have explained that discovery is not needed to
dispose of a Rule 12(b)(6) motion because those motions “are decided on the
face of the complaint.” Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th
Cir. 1990). Wilson also contends that the magistrate judge improperly applied
a higher standard than what this Court requires to survive a Rule 12(b)(6)
motion. Here, the magistrate judge cited and applied the correct standard
under Rule 12(b)(6). See opinion at p. 4 (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). Even if the incorrect standard had been applied, we review this
claim de novo.
      In order to plead a section 1983 claim, Wilson was required to allege facts
demonstrating that (1) the defendant violated the Constitution or federal law
and (2) that the defendant was acting under color of state law while doing so.
See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005),
abrogated on other grounds by Kingsley v. Hendrickson, __ U.S. __, 135 S. Ct.
2466, 2473 (2015).    Wilson complains that the magistrate judge failed to
acknowledge the full extent of the pleadings which incorporated by reference a
“news article outlining a pattern of neglect and deception on the part of the
[Parkland].” Blue brief at 18. Wilson contends that the complaint and the
investigative newspaper article established multiple instances of negligence
and cover-up on the part of Parkland. Even assuming arguendo that the
complaint sufficiently raised allegations that Parkland had a custom or policy
of committing medical errors, alleging negligence is not enough. As stated
above, Wilson must allege facts demonstrating Parkland violated the
                                       5
    Case: 17-10139     Document: 00514208321       Page: 6   Date Filed: 10/24/2017



                                    17-10357
Constitution or federal law.   Allegations of medical negligence do not rise to
the level of a due process claim. Kinzie v. Dallas Cnty. Hosp. Dist., 106 F. App’x
192, 194 (5th Cir. 2003). Further, Wilson was not in the custody of the state,
and thus, had no “special relationship” with the state sufficient to establish a
constitutional right to medical care. Id. at 195. (citing DeShaney v. Winnebago
Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197-200 (1989)). In sum, because the
allegations in Wilson’s complaint do not rise to the level of a constitutional
claim, all the federal claims fall by their own weight. Accordingly, we conclude
that the magistrate judge properly dismissed Wilson’s federal claims pursuant
to Rule 12(b)(6).
            C. Rule 59 Motion

               1. Magistrate Judge’s Jurisdiction

      Wilson contends that the magistrate judge erred in finding that it lacked
jurisdiction to address the merits of his Rule 59 motion for new trial. We agree.
      After the magistrate judge remanded the state claims, Wilson filed a
Rule 59 motion for new trial or, in the alternative, for leave to allow him to
amend the complaint. The magistrate judge held that because it had already
remanded the state law claims to state court, it was divested of jurisdiction
over the case. The magistrate judge therefore ruled that it did not have
jurisdiction to rule on Wilson’s Rule 59 motion.
      Although this Court has precedent holding that a district court is
divested of jurisdiction once the remand order is sent to the clerk of the state
court, those cases involved orders remanding based on a lack of subject matter
jurisdiction. In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991) (citing
Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir. 1984); New Orleans Public
Serv., Inc. v. Majoue, 802 F.2d 166 (5th Cir. 1986)). Remand orders based on
a lack of subject matter jurisdiction are not reviewable. Id. However, as

                                        6
    Case: 17-10139    Document: 00514208321        Page: 7   Date Filed: 10/24/2017



                                   17-10357
explained above, in the instant case, the remand order is not jurisdictional and
is thus reviewable. “It is clear that, where an exception to non-reviewability
exists, ‘an appellate court has jurisdiction to review the remand order, and a
district court has jurisdiction to review its own order, and vacate or reinstate
that order.’” Id. (quoting In re Shell Oil Co., 631 F.2d 1156, 1158 (5th Cir.
1980)). Accordingly, the magistrate judge erroneously held that it had no
jurisdiction to rule on Wilson’s Rule 59 motion.
               2. Merits of Rule 59 motion
      Because the magistrate judge held that it had no jurisdiction, it did not
address the merits of the arguments in the Rule 59 motion. In the interests of
judicial economy and because we find a remand would be futile, we address the
motion in the first instance. Cf. McKinney v. Irving Indep. School Dist., 309
F.3d 308, 315 (5th Cir. 2002) (explaining that remanding the case to allow
another amendment would simply prolong the inevitable).
      In the Rule 59 motion, Wilson requested a new hearing or, in the
alternative, leave to amend the complaint. We quickly dispense with the
request for a new hearing. This case was resolved on the face of the complaint
under Rule 12(b)(6). No hearing was necessary.
      With respect to the request for leave to amend the complaint, Wilson
contends the court should have granted leave to amend the complaint as a
matter “of course.”   Wilson is mistaken.     Federal Rule of Civil Procedure
15(a)(1) provides that: “A party may amend its pleading once as a matter of
course within [certain parameters].” (emphasis added). Here, Wilson had
already amended the complaint in federal district court prior to the order of
dismissal.
      In the brief on appeal, Wilson asserts that this is a case of deliberate
indifference—not just negligence. Wilson apparently seeks leave to add a
claim of deliberate indifference. However, in the motion seeking leave to
                                       7
    Case: 17-10139    Document: 00514208321     Page: 8   Date Filed: 10/24/2017



                                   17-10357
amend, Wilson never claimed deliberate indifference.         In any event, as
explained above, Wilson did not have a “special relationship” with the state
sufficient to establish a constitutional right to medical care. Kinzie, 106 F.
App’x at 195. Thus, Wilson is precluded from showing a claim of deliberate
indifference.
      Finally, Wilson seeks to add a claim of wrongful death based on Debra
Wilson’s death, which occurred after the dismissal order but before the Rule
59 motion. However, the wrongful death claim is likewise premised upon the
medical care (or lack thereof) that Wilson received.        Again, under the
circumstances of this case, Wilson, who was not in the custody of the state, is
precluded from establishing a constitutional right to medical care. In sum,
although the magistrate judge improperly denied the Rule 59 motion based on
lack of jurisdiction, we conclude in the first instance that the Rule 59 motion
is denied on the merits of the claims.
      III.   CONCLUSION
      For the above reasons, we AFFIRM the district court’s judgment
dismissing the complaint for failure to state a claim pursuant to Rule 12(b)(6).
We AFFIRM as MODIFIED the district court’s order denying the Rule 59
motion.




                                         8
