                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

Nos. 04-2461
     04-2462

                            MARY ANN HICKEY,

                         Plaintiff, Appellant,

                                      v.

           METROWEST MEDICAL CENTER, STEPHEN KRUSKALL
                    AND CONSTANCE A. COLLINS,

                        Defendants, Appellees.
                          ___________________

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Richard G. Stearns, U.S. District Judge]


                                   Before

                       Torruella, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                      and Lipez, Circuit Judge.


     Mary Ann Hickey on brief pro se.
     James L. Wilkinson and Murray, Kelly & Bertrand, P.C., on
brief for appellee MetroWest Medical Center.
     Douglas A. Morgan, Holly L. Parks and Rindler Morgan, P.C., on
brief for appellee Stephen Kruskall, M.D.
     Richard W. Jensen and Morrison Mahoney LLP, on brief for
appellee Constance A. Collins, M.D.
                                          July 19, 2006


               Per Curiam.           Mary Ann Hickey has appealed the dismissal

of her complaint.1             We affirm.

               Contrary to Hickey's contention, the district court did

not err in granting the motion to dismiss filed by the defendant

MetroWest Medical Center ("the Hospital") on the ground that Hickey

had failed to allege any viable federal claim or alternate basis

for federal jurisdiction. On appeal, Hickey raises a procedurally-

based argument by pointing to Fed. R. Civ. P. 12(g), which provides

that a defense is waived if not included in any first motion filed

under       Rule    12.        She   notes    that   the   Hospital    had   previously

unsuccessfully            moved      to   dismiss    for   insufficient      service   of

process.       Although the successful motion to dismiss was the second

motion to dismiss filed by the Hospital, Rule 12(h) provides

exceptions to waiver for the defense of failure to state a claim,

see   Fed.         R.   Civ.    P.    12(h)(2),      and   lack   of   subject   matter

jurisdiction, see Fed. R. Civ. P. 12(h)(3). Accordingly, there was

no error.




        1
      Hickey filed two notices of appeal. Appeal No. 04-2461 is
from a September 16, 2004 Order dismissing claims against two named
defendants.   Appeal No. 04-2462 is from the September 21, 2004
Order dismissing the entire case. Nothing turns on the distinction
between the two appeals.

                                               -2-
             Hickey makes no substantial argument that the district

court erred in finding that the Hospital was not a state actor and

that ruling appears to us to be clearly correct.                        Therefore,

essentially for the reasons stated in the district court's Order of

November 6, 2003, we affirm the dismissal of the federal claims

against the Hospital and the dismissal of the state law claims

against that entity without prejudice.

             To the extent that Hickey purports to raise federal civil

rights claims against Dr. Collins and Dr. Kruskall, those claims

are fatally deficient for the same reason.                  Neither physician is a

state actor. The district court did not dismiss Hickey's complaint

against these defendants on this ground, however.                     Instead, the

district     court    concluded   that      any      fair   reading   of    Hickey's

complaint     makes    clear   that   she      was    challenging     the   medical

treatment she did or did not receive from Dr. Collins and Dr.

Kruskall. We agree with this assessment. Notwithstanding Hickey's

labeling of her claims, she was challenging medical judgments.

             Thereafter, the district court referred the matter to the

state court for the convening of a medical malpractice tribunal.

This referral was in error. Once the district court concluded that

all   that    Hickey    raised    were    essentially         state   law   medical

malpractice claims against these defendants (and no other basis for

federal jurisdiction was apparent), it should have dismissed the

complaint against them for lack of jurisdiction.                 See Pallazola v.


                                         -3-
Rucker, 797 F.2d 1116, 1127-28 (1st Cir. 1986) (in the absence of

subject matter jurisdiction, the court was required to dismiss on

jurisdictional grounds); cf. Feinstein v. Massachusetts Gen. Hosp.,

643 F.2d 880 (1st Cir. 1981) (a Massachusetts diversity-based

medical malpractice action filed in federal court must follow the

state's statutory provision requiring a pre-screening by a medical

malpractice tribunal).        We, therefore, do not reach Hickey's

argument that the district court erred in dismissing her claims for

failure to post the required bond after the tribunal found in the

defendants' favor. To the extent that Hickey's remaining arguments

of error by the district court -- the denial of appointed counsel,

leave to amend, and discovery -- are not mooted, they are rejected

as unpersuasive.

          Accordingly, we affirm, in all respects, the district

court's dismissal of the claims against the Hospital.           Although we

also affirm the dismissal of the claims against Dr. Collins and Dr.

Kruskall, we do so on the ground that no viable federal claim was

presented and, to the extent that state law based claims were

presented,   those   claims   are   properly   dismissed   for     lack   of

jurisdiction.   As is the case with the Hospital, the dismissal of

the state law claims against the defendant physicians is without

prejudice.      Whether   that   qualification    makes    an    effective

distinction in these circumstances is unclear since the convening

of a medical malpractice tribunal would have resulted even if the


                                    -4-
state law claims against Dr. Collins and Dr. Kruskall had been

dismissed for lack of jurisdiction by the district court and then

reinstituted in the state court.          We offer no speculation as to

whether a state court would now conclude that Hickey is precluded

from presenting her claims at a second tribunal.

          The Order of Dismissal entered on September 21, 2004,

dismissing   the   complaint   in   its   entirety,   is   affirmed.   The

dismissal with respect to Dr. Collins and Dr. Kruskall shall

reflect that dismissal is grounded on lack of jurisdiction and, to

the extent that state law claims are presented, those claims are

dismissed without prejudice.

          So Ordered.




                                    -5-
