     Case: 17-60224      Document: 00514580701         Page: 1    Date Filed: 08/01/2018




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


                                    No. 17-60224                                     FILED
                                  Summary Calendar                              August 1, 2018
                                                                                Lyle W. Cayce
                                                                                     Clerk
NATHAN JENKINS,

                                                 Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS;
FEDERAL CORRECTIONAL INSTITUTION YAZOO CITY MEDIUM
SECURITY PRISON; DOCTOR A. CHAMBERS, Medical Doctor/CD Federal
Correctional Institution Yazoo City; DOCTOR NORMA NATAL-CASTRO,
Medical Doctor Federal Correctional Institution Yazoo City,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:15-CV-908


Before REAVLEY, WILLETT, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Nathan Jenkins, formerly incarcerated federal prisoner # 10914-022,
appeals the summary judgment dismissal of his complaint against federal
officials that asserted claims of negligence under the Federal Tort Claims Act



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-60224

(FTCA), 28 U.S.C. § 1346, and claims of Eighth Amendment violations under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). With the benefit of liberal construction, Jenkins first challenges
the district court’s ruling that he did not provide adequate evidence to survive
summary judgment as to his claims that (1) the United States was liable under
the FTCA for the medical negligence of its doctors and (2) prison medical
officials were liable under Bivens for their deliberate indifference to his medical
needs for prompt eye treatment. Second, he contends that the district court
erroneously granted immunity to the defendants. Third, Jenkins asserts that
the district court erroneously denied his postjudgment motions under Federal
Rules of Civil Procedure 59(e) and 60(b).
      We “review[] a summary judgment de novo, using the same standard as
that employed by the district court.” McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012). Summary judgment shall be granted “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “The FTCA authorizes
civil actions for damages against the United States for personal injury or death
caused by the negligence of a government employee under circumstances in
which a private person would be liable under the law of the state in which the
negligent act or omission occurred.” Hannah v. United States, 523 F.3d 597,
601 (5th Cir. 2008). “Under the [FTCA], liability for medical malpractice is
controlled by state law.” Ayers v. United States, 750 F.2d 449, 452 n.1 (5th Cir.
1985). To establish a malpractice claim under Mississippi law, the plaintiff
must show “(1) the existence of a duty by the defendant to conform to a specific
standard of conduct for the protection of others against an unreasonable risk
of injury; (2) a failure to conform to the required standard; and (3) an injury to
the plaintiff proximately caused by the breach of such duty by the defendant.”



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                                 No. 17-60224

Estate of Sanders v. United States, 736 F.3d 430, 435-36 (5th Cir. 2013)
(internal quotation marks omitted).        Regarding the FTCA claims, as the
district court observed, Jenkins’s expert evidence does not meet the
requirements to survive summary judgment. His expert evidence does not
establish that, in Jenkins’s specific medical situation, a more prompt
treatment would have led to a greater than 50 percent chance of a better result.
See Sanders, 736 F.3d at 436-39. Nor does any of Jenkins’s other evidence of
medical records make the required showing. See id. at 436-37.
      A Bivens action may be sought for prison officials’ violation of the Eighth
Amendment’s prohibition against cruel and unusual punishment when they
are deliberately indifferent to a prisoner’s serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 101, 104-05 (1976). To the extent that Jenkins’s Bivens
claim asserted negligence or malpractice bases of liability for Dr. Norma Natal-
Castro in light of the expert evidence, the district court properly rejected it.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Jenkins’s expert
evidence does not contain any statement that Natal-Castro consciously
disregarded a substantial risk of serious harm. See Lawson v. Dallas Cty., 286
F.3d 257, 262 (5th Cir. 2002). Likewise, Jenkins’s other evidence does not point
to a genuine issue of material fact. See Carnaby v. City of Houston, 636 F.3d
183, 187 (5th Cir. 2011).     Natal-Castro’s medical judgment as Jenkins’s
primary care physician about whether to recommend emergency care does not
establish deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006); Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001); Varnado, 920 F.2d at 321. As to the Bivens claim against Dr.
Anthony Chambers, the district court correctly noted that Chambers’s
undisputed status as an employee of the U.S. Public Health Service afforded
him absolute immunity. Hui v. Castaneda, 559 U.S. 799, 812 (2010).



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                                  No. 17-60224

      Finally, we lack jurisdiction to consider Jenkins’s challenges to the
district court’s denial of his postjudgment motions because Jenkins did not
timely file a notice of appeal, or an amended notice of appeal, that designated
the court’s denial of those motions as a basis for his appeal. FED. R. APP. P.
3(c)(1); FED. R. APP. P. 4(a)(1)(A), (a)(4)(B)(ii); see Bowles v. Russell, 551 U.S.
205, 214 (2007); Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 589
(5th Cir. 2009).
      AFFIRMED IN PART AND DISMISSED IN PART.




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