           Case: 13-13395   Date Filed: 06/23/2014   Page: 1 of 9


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13395
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cv-00577-CG-B

DONNA GIBSON,


                                                            Plaintiff-Appellant,

                                  versus

JAY YORK,
TODD VOLKMAN,


                                                        Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                             (June 23, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Donna Gibson, proceeding pro se, appeals the district court’s grant of

attorney Jay York’s and Dr. Todd Volkman’s motions to dismiss Gibson’s

complaint filed under 42 U.S.C. §§ 1983, 1984, and 1985, alleging violations of

the Sixth, Eighth, and Fourteenth Amendments against York, and violations of the

Eighth and Fourteenth Amendments against Volkman. On appeal, Gibson argues

that the district court erred in dismissing her complaint as to York for failure to

state a claim on which relief could be granted and lack of subject matter

jurisdiction, because York violated her Sixth and Fourteenth Amendment rights by

preventing her from receiving a jury trial and failing to adequately represent her in

her underlying workers’ compensation case. As to Volkman, she argues that the

district court erred in dismissing her complaint for failure to state a claim, because

his treatment of her exhibited deliberate indifference to her serious medical needs

and he violated his professional code of conduct by telling York that her injuries

were not work related.

                                           I.

      We review a district court’s order granting a motion to dismiss for lack of

subject matter jurisdiction de novo, viewing the facts in the light most favorable to

the plaintiff. Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (1998). The

burden of establishing federal subject matter jurisdiction lies with the party




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asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994).

      We review a district court’s dismissal for failure to state a claim de novo.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). The district court must view

the complaint in the light most favorable to the plaintiff, and all of the plaintiff’s

well-pleaded facts are accepted as true. Am. United Life Ins. Co. v. Martinez, 480

F.3d 1043, 1057 (11th Cir. 2007).

      Subject matter jurisdiction in federal court can be established through either

federal question jurisdiction, under 28 U.S.C. § 1331, or diversity jurisdiction,

under 28 U.S.C. § 1332. Section 1331 provides that “[t]he district courts shall

have original jurisdiction of all civil actions arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. A claim that purports to arise

under the Constitution or a federal statute may be dismissed if (1) the alleged claim

“clearly appears to be immaterial and made solely for the purpose of obtaining

jurisdiction,” or (2) “such a claim is wholly insubstantial and frivolous.” Blue

Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998)

(quotations omitted).

      Under 28 U.S.C. § 1367(a), federal courts also have “the power to exercise

supplemental jurisdiction over all claims that arise out of a common nucleus of

operative fact with a substantial federal claim.” Upper Chattahoochee Riverkeeper


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Fund, Inc. v. City of Atlanta, 701 F.3d 669, 678 (11th Cir. 2012). However, we

encourage district courts to dismiss any remaining state claims when the federal

claims have all been dismissed prior to trial. Raney v. Allstate Ins. Co., 370 F.3d

1086, 1089 (11th Cir. 2004).

      Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may

move to dismiss a complaint based on the defendant’s “failure to state a claim

upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to

dismiss under Rule 12(b)(6), a plaintiff must present factual allegations “enough to

raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). Once a claim

has been sufficiently stated, “it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Id. at 563, 127 S.Ct. at 1969. “A

pleading that offers labels and conclusions or a formulaic recitation of the elements

of a cause of action will not do. Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotations, alteration, and

citation omitted).

      Access to the courts is a right grounded in several constitutional

amendments, including the First, Fifth, and Fourteenth Amendments. Chappell v.

Rich, 340 F.3d 1279, 1282 (11th Cir. 2003). To assert such a claim, the plaintiff


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must possess a non-frivolous, arguable underlying cause of action, the presentation

of which was prevented by the defendant. Barbour v. Haley, 471 F.3d 1222, 1226

(11th Cir. 2006).

      Under Alabama law, “[i]n case of a dispute between employer and

employee . . . [t]he controversy shall be heard and determined by the judge who

would hear and determine a civil action between the same parties arising out of

tort.” Ala. Code § 25-5-81(a)(1). “When willful misconduct on the part of the

employee is set up by the employer, . . . the employer may, upon appearing,

demand a jury to hear and determine, under the direction of the court, the issues

involved in this defense.” Id. § 25-5-81(a)(2).

      The district court did not err in granting York’s motion to dismiss based on

failure to state a claim and lack of subject matter jurisdiction. First, Gibson failed

to state a claim against York for violation of her constitutional rights, specifically

the right of access to the courts. Under Alabama law, employment disputes such

as Gibson’s workers’ compensation claim against her employer, Rooms-to-Go,

Inc. (“Rooms-to-Go”), are tried before a judge, not a jury, unless the defendant

asserts a defense of willful misconduct. Ala. Code § 25-5-81(a)(1), (2). Rooms-

to-Go did not assert a willful misconduct defense in its answer and at no time

before the district court or on appeal has Gibson alleged that Rooms-to-Go

otherwise asserted such a defense. Even accepting her other allegations as true,


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York could not possibly have prevented her from receiving a jury trial because

under Alabama law she was not entitled to have her case heard by a jury. She

cannot assert an access-to-the-courts claim because Alabama law, not York,

prevented the presentation of her underlying workers’ compensation action to a

jury. See Barbour, 471 F.3d at 1226.

      Second, Gibson failed to meet her burden of establishing federal subject

matter jurisdiction over her remaining claims, which are based on alleged

deficiencies in York’s representation of her during her workers’ compensation

case. In addition to her access-to-the-courts claim, her complaint against York

referenced the Sixth, Eighth, and Fourteenth Amendments. However, she did not

indicate in her complaint or in her response to York’s motion to dismiss how his

alleged actions violated any of these amendments or any federal statute. She cites

only to the Alabama Legal Services Liability Act and the Rules of Professional

Conduct, neither of which is a federal statute. Her remaining claims consist of

allegations of legal malpractice, and her references to constitutional amendments

appear to be either immaterial and made solely for the purpose of obtaining federal

jurisdiction or wholly insubstantial and frivolous. See Blue Cross & Blue Shield of

Ala., 138 F.3d at 1352. Therefore, even viewing the facts in the light most

favorable to Gibson, she fails to show that her claim arises under either the




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Constitution, a federal statute, or a United States treaty, and she failed to establish

federal question jurisdiction. See 28 U.S.C. § 1331.

      Finally, because her only federal claim was dismissed prior to trial, the

district court was correct to decline to exercise supplemental jurisdiction over

Gibson’s state legal malpractice claims. See Raney, 370 F.3d at 1089.

                                           II.

      Federal and state governments “have a constitutional obligation to provide

minimally adequate medical care to those whom they are punishing by

incarceration.” Harris v. Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991).

“[D]eliberate indifference to serious medical needs of prisoners constitutes the

unnecessary and wanton infliction of pain,” which is proscribed by the Eighth

Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d

251 (1976) (quotation and citation omitted).

      The Fourteenth Amendment “can be violated only by conduct that may be

fairly characterized as ‘state action.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S.

922, 923-24, 102 S.Ct. 2744, 2746-47, 73 L.Ed.2d 482 (1982). “As a matter of

substantive constitutional law, the state-action requirement reflects judicial

recognition of the fact that most rights secured by the Constitution are protected

only against infringement by governments . . . .” Id. at 936, 102 S.Ct. at 2753. In

numerous contexts, the Supreme Court has “insisted that the conduct allegedly


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causing the deprivation of a federal right be fairly attributable to the State.” Id. at

937, 102 S.Ct. at 2753-54.

      The district court did not err in granting Volkman’s motion to dismiss based

on Gibson’s failure to state a claim. Accepting Gibson’s statements in her

complaint and her response to Volkman’s motion to dismiss as true, Volkman

provided her with deficient medical treatment and incorrectly and improperly

informed York that her injury was not work related. See Am. United Life Ins. Co.,

480 F.3d at 1057. But Gibson did not receive medical treatment from Volkman

while she was in prison or otherwise receiving punishment through incarceration,

and she therefore fails to state any set of facts consistent with a violation of the

Eighth Amendment. See Bell Atl. Corp., 550 U.S. at 563, 127 S.Ct. at 1969; see

also Harris, 941 F.2d at 1504. Similarly, she fails to state how any of Volkman’s

actions violated her Fourteenth Amendment rights because she fails to establish or

even allege that Volkman’s actions in providing private medical care constituted

“state action” that could potentially violate the Fourteenth Amendment. See

Lugar, 457 U.S. at 923-24, 102 S.Ct. at 2746-47.

      To the extent that Gibson asserts state-law claims of negligence and medical

malpractice, she fails to establish federal subject matter jurisdiction. Finally, since

her federal claims were dismissed prior to trial, the district court was correct to




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decline to exercise supplemental jurisdiction over Gibson’s negligence and medical

malpractice claims. See Raney, 370 F.3d at 1089.

       Based on the above, we affirm.

       AFFIRMED. 1




1
         Appellee York’s motion to file supplemental authority and Appellant Gibson’s motion to
file a reply brief out of time are GRANTED.
                                               9
