     Case: 13-10744      Document: 00512616699         Page: 1    Date Filed: 05/02/2014




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

                                                                                    FILED
                                    No. 13-10744                                 May 2, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
NATHANIEL HOWARD THOMAS,

                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 4:12-CV-5


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Nathanial Howard Thomas, former federal prisoner # 07052-078 and
now Texas prisoner # 1836945, proceeding pro se and in forma pauperis, filed
a medical malpractice suit against the United States under the Federal Tort
Claims Act (FTCA), 28 U.S.C. § 2671 et seq. He alleged that the federal prison’s
medical staff failed to diagnose or treat his glaucoma, which resulted in
blindness in one eye and partial blindness in the other. State law controls 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-10744    Document: 00512616699     Page: 2   Date Filed: 05/02/2014


                                 No. 13-10744

liability for medical malpractice under the FTCA. Ayers v. United States, 750
F.2d 449, 452 n.1 (5th Cir. 1985). Under Texas law, a medical-malpractice
plaintiff must prove: (1) the physician’s duty to act according to an applicable
standard of care, (2) a breach of that standard of care, (3) injury, and (4)
causation. Quijano v. United States, 325 F.3d 564, 567 (5th Cir. 2003). Expert
testimony is generally required to prove the applicable standard of care. Id.
An expert is not necessary where “the mode or form of treatment is a matter of
common knowledge or is within the experience of the layman.”            Hood v.
Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977).
      The district court granted summary judgment against Thomas on the
malpractice claim based on his failure to designate an expert witness. We
review de novo a district court’s grant of summary judgment. Nickell v. Beau
View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Contrary to his
argument that the diagnosis and treatment for glaucoma is common
knowledge, Thomas was required to present expert testimony to establish the
applicable standard of care.    See Hood, 554 S.W.2d at 165-66.         As it is
uncontested that Thomas did not designate an expert witness to testify on his
behalf, summary judgment was appropriate. See Quijano, 325 F.3d at 567.
      Thomas moved for appointment of counsel, asserting that he was unable
to proceed pro se because he was incarcerated.         Finding no exceptional
circumstances, the district court denied the motion, and it later denied a
renewed request when summary judgment was granted. On appeal, Thomas
has not shown that the district court abused its discretion in denying his
requests for the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86
(5th Cir. 1987).
      AFFIRMED.




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