           Case: 15-13169   Date Filed: 03/30/2016   Page: 1 of 11


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13169
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:14-cv-02708-VMC-EAJ



KEITH ROBERT CALDWELL, SR.,

                                                            Plaintiff-Appellant,

                                  versus

SUZANNE M. KLINKER, et al.,

                                                                     Defendants,

US DEPARTMENT OF VETERANS AFFAIRS,
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES,
HOSPITAL CORPORATION OF AMERICA HOLDINGS, INC.,
d.b.a. Palms of Pasadena Hospital,

                                                         Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 30, 2016)
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Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Keith Caldwell, Sr., a disabled veteran proceeding pro se, appeals the

dismissal of his lawsuit alleging that he received substandard and negligent

treatment from several medical institutions.          The district court, after giving

Caldwell several opportunities to amend his complaint, concluded that it lacked

subject-matter jurisdiction and dismissed the action.

      The district court determined that Caldwell’s claims against Defendants-

Appellees United States Department of Veterans Affairs (“VA”) and U.S.

Department of Health and Human Services (“HHS”) (collectively, “federal agency

defendants”) were subject to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and

2672, and were due to be dismissed because Caldwell had not exhausted his

administrative remedies as required by that act. Further, the court concluded that

Caldwell’s claims against the owner or operator of a private hospital, Defendant-

Appellee    Hospital    Corporation     of       America   Holdings,   Inc.     (“Hospital

Corporation”), were subject to dismissal because Caldwell had not established that

the district court had jurisdiction to decide his claims against that entity.

      After careful review, we conclude that the district court’s reasoning was

correct, so we affirm the dismissal of Caldwell’s action for lack of subject-matter

jurisdiction.


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                                         I.

      In this lawsuit, Caldwell primarily alleged that he received inadequate

treatment from the VA Bay Pines hospital after suffering several blackouts that

caused him to fall and sustain serious injuries. According to Caldwell, he needed a

power wheelchair to prevent falling when he suffered a blackout, but his primary

physician at Bay Pines negligently failed to obtain one for him. Caldwell claimed

that the lack of a power wheelchair later caused him to fall and break his neck

upon suffering a blackout at a baseball game.

      Following spinal surgery for his injury, Caldwell received rehabilitation

therapy from the Palms of Pasadena Hospital, which, Caldwell alleged, withheld

prescribed medication. In addition, before breaking his neck, Caldwell had been

participating in a mental-health treatment program at Bay Pines, but Palms of

Pasadena did not offer similar treatment. As a result, Caldwell sought to be

transferred to the Bay Pines psychiatric ward under the Florida Mental Health Act,

Fla. Stat. § 394.451, et seq.     However, according to Caldwell, Bay Pines

stonewalled his efforts to transfer for mental-health treatment      Caldwell also

alleged that the director of Bay Pines refused to remove his primary care physician,

despite his requests.

      Caldwell originally named as defendants several individuals, including his

primary care physician at Bay Pines, the director of Bay Pines, and the executive


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officer of Palms of Pasadena. He generally alleged that the defendants “exhibited

gross incompetence, malpractice, and complete disregard for Plaintiff’s life, health

and welfare, mental state and safety.” After the district court twice dismissed his

complaint with leave to amend for failure to establish the court’s subject-matter

jurisdiction, Caldwell dropped the individual defendants and, in their place,

substituted their “parent organizations”: the VA and HHS for the Bay Pines

defendants, and Hospital Corporation for Palms of Pasadena.

      Caldwell’s change in defendants prompted the United States to appear on

behalf of the federal agency defendants and seek dismissal of the complaint under

the Federal Tort Claims Act. The United States claimed that it was the only proper

defendant to a negligence claim against federal agencies and that any such claims

should be dismissed because Caldwell did not exhaust his administrative remedies

before bringing suit. The United States also asserted that sovereign immunity

barred any constitutional tort claims against the federal agencies and that Caldwell

otherwise failed to state a viable claim.

      The district court granted the United States’s motion and dismissed the

complaint for lack of subject-matter jurisdiction, for the reasons stated by the

government. The court granted Caldwell leave to file a third amended complaint

that established the court’s subject-matter jurisdiction over the action, advising that




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Caldwell needed to set forth facts showing his exhaustion of administrative

remedies under the Federal Tort Claims Act.

      Thereafter, Caldwell filed what the court construed as his third amended

complaint. With regard to exhaustion, Caldwell alleged that he presented his

issues to the executive officer of Palms of Pasadena, as well as the director of Bay

Pines. The United States again moved to dismiss the complaint.

      The district court dismissed Caldwell’s third amended complaint without

leave to amend on May 15, 2015. The court concluded that Caldwell’s tort claims

against the federal agency defendants could only be brought against the United

States under the FTCA and that he failed to exhaust his administrative remedies

under that act. The court noted that Caldwell may still have time to comply with

the FTCA and then re-file. The court also found that Caldwell’s constitutional

claims were barred by sovereign immunity. Finally, the court found that Caldwell

failed to establish diversity jurisdiction over Hospital Corporation.     Caldwell

timely appealed.

                                        II.

      Caldwell broadly condemns the district court’s conclusion that his lawsuit

was subject to the requirements of the Federal Tort Claims Act (“FTCA”) and that

the FTCA and the doctrine of sovereign immunity barred his claims. Caldwell




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asserts that the United States and the district court, by invoking and relying upon

the FTCA and sovereign immunity, improperly changed the nature of his lawsuit.

      We review de novo the district court’s dismissal of a complaint for lack of

subject-matter jurisdiction. Underwriters at Lloyd’s, London v. Osting-Schwinn,

613 F.3d 1079, 1085 (11th Cir. 2010). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). Despite the liberal construction given to the pleadings of pro se litigants,

“we nevertheless have required them to conform to procedural rules.” Albra v.

Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (quotation marks omitted).

      Here, Caldwell sought to sue two federal agencies in federal court. But, as a

general matter, the doctrine of sovereign immunity shields the United States and its

agencies from suit. FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000

(1994). Sovereign immunity is jurisdictional in nature, but it can be waived. Id.

Therefore, as the party filing suit in federal court, Caldwell bore the burden of

establishing, by a preponderance of the evidence, facts supporting the existence of

a waiver of sovereign immunity. See Underwriters at Lloyd’s, 613 F.3d at 1085

(stating the general requirement of alleging facts sufficient to establish the district

court’s jurisdiction).




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      “Through the enactment of the FTCA, the federal government has, as a

general matter, waived its immunity from tort suits based on state law tort claims.”

Zelaya v. United States, 781 F.3d 1315, 1322 (11th Cir. 2015). “[T]he FTCA was

designed to provide redress for ordinary torts recognized by state law.” Ochran v.

United States, 273 F.3d 1315, 1317 (11th Cir. 2001) (internal quotation marks

omitted). An action against the United States under the FTCA is the exclusive

remedy for employment-related torts committed by employees of the federal

government. 28 U.S.C. §§ 2679, 1346(b); United States v. Smith, 499 U.S. 160,

165-66, 111 S. Ct. 1180, 1184-85 (1991).

      Here, the FTCA was the exclusive remedy for Caldwell’s state-law tort

claims against the federal agency defendants and their employees.            While

Caldwell’s complaints did not clearly identify the legal basis for his claims, the

district court properly concluded that Caldwell’s claims, primarily alleging medical

malpractice and negligence, sounded in tort. Moreover, although Caldwell now

asserts that the federal employees were not acting within the scope of their

employment, his allegations plainly establish that his claims arise from acts or

omissions committed by federal employees while providing medical treatment as

part of their job duties.     Because the FTCA was the exclusive remedy for

Caldwell’s tort claims for money damages, whether or not he invoked the FTCA or

named the United States as a defendant, he could not have proceeded against the


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federal agencies or employees in their own names.          See 28 U.S.C. §§ 2679,

1346(b); Smith, 499 U.S. at 165-66, 111 S. Ct. at 1184-85.

      The fact that Caldwell’s claims are subject to the FTCA does not mean, as

he contends, that the district court changed the nature of the lawsuit or somehow

altered his allegations. It simply means that, for the types of facts he alleged—

whatever legal label Caldwell attached to them—Caldwell needed to comply with

the FTCA’s requirements before filing suit in federal court. Specifically, Caldwell

needed to exhaust his administrative remedies. McNeil v. United States, 508 U.S.

106, 113, 113 S. Ct. 1980, 1984 (1993) (“The FTCA bars claimants from bringing

suit in federal court until they have exhausted their administrative remedies.”).

Even pro se litigants must comply with the exhaustion requirement. Id. Unless

and until a claimant has exhausted his administrative remedies under the FTCA,

the district court lacks subject-matter jurisdiction. Turner ex rel. Turner v. United

States, 514 F.3d 1194, 1200 (11th Cir. 2008).

      To exhaust administrative remedies, “the claimant shall have first presented

the claim to the appropriate Federal agency and his claim shall have been finally

denied by the agency in writing and sent by certified or registered mail.” 28

U.S.C. § 2675(a). If the agency fails to make a “final disposition of a claim within

six months after it is filed,” the claimant may treat the lack of response as “a final

denial of the claim for purposes of this section.” Id.; Turner ex rel. Turner, 514


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F.3d at 1200 (“Before instituting a federal suit, the claimant must wait either until

the administrative agency finally denies the claim or until at least six months have

passed after the claim was filed.”).

      Caldwell did not exhaust his administrative remedies under the FTCA

because did not file an administrative claim with the federal agency responsible for

handling his claim. 28 U.S.C. § 2675(a). The district court properly found that

Caldwell’s complaints to a private hospital administrator and a VA hospital

administrator were insufficient under the FTCA. See Motta ex rel. A.M. v. United

States, 717 F.3d 840, 843 (11th Cir. 2013) (“An appropriate federal agency is the

actual federal agency responsible for handling the claim and not the government-

funded entity or government employee who committed the alleged tort.”). In other

words, Caldwell needed to file an administrative claim directly with the VA, but he

did not. See, e.g., Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001).

Caldwell’s pro se status does not excuse his failure to satisfy the FTCA’s

requirements. See McNeil, 508 U.S. at 113, 113 S. Ct. at 1984.

      Because Caldwell’s claims were subject to the FTCA but he did not exhaust

his administrative remedies before bringing suit in federal court, the district court

properly dismissed his negligence and medical malpractice claims for lack of

jurisdiction. Furthermore, to the extent Caldwell raised constitutional tort claims

against the federal agency defendants under the Fifth and Fourteenth Amendments,


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the district court properly found that those claims were barred by sovereign

immunity.      The FTCA did not waive sovereign immunity from liability for

damages arising from an alleged constitutional violation. Meyer, 510 U.S. at 477-

78, 114 S. Ct. at 1001.

       Under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999

(1971), a plaintiff may bring suit directly under the Constitution against federal

officers in their individual capacity for constitutional violations. See Hardison v.

Cohen, 375 F.3d 1262, 1264 (11th Cir. 2004). But Caldwell has not brought a

Bivens claim. In his second and third amended complaints, Caldwell dropped his

claims against the individual federal defendants and instead sought to proceed

directly against the federal agencies.1 Bivens does not extend to allow direct

actions for damages against federal agencies. Meyer, 510 U.S. at 485-86, 114 S.

Ct. at 1005-06.

       Finally, the district court did not err in finding that Caldwell failed to

establish federal jurisdiction over Hospital Corporation. Caldwell does not directly

challenge this ruling on appeal, but we note that he did not adequately allege a

federal cause of action against Hospital Corporation so as to invoke the district

court’s federal-question jurisdiction, 28 U.S.C. § 1331, nor did he adequately

       1
          Caldwell claims that the court improperly granted a motion to dismiss filed by one of
the original individual defendants without giving Caldwell time to respond, but the district court
did not prohibit Caldwell from renaming that individual in subsequent complaints, and Caldwell
voluntarily dropped her as a named defendant. Accordingly, Caldwell has no basis to complain.
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allege that complete diversity of citizenship existed between him and Hospital

Corporation, 28 U.S.C. § 1332(a), (c)(1). Accordingly, the district court properly

dismissed his claims against Hospital Corporation.

      For the reasons stated, we affirm the district court’s dismissal of Caldwell’s

action for lack of subject-matter jurisdiction.

      AFFIRMED.




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