                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 8 2005
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    DOROTHY LEWIS, on behalf of
    Vernon Lewis, deceased,

               Plaintiff-Appellant,
                                                       No. 04-3169
    v.                                          (D.C. No. 03-CV-4184-JAR)
                                                         (D. Kan.)
    EDWARD KENT STEVENSON,
    M.D.; CHRISTOPHER MURRAY,
    D.O., M.D.,

               Defendants-Appellees,


    and

    BHS COLLEGE MEADOWS, also
    known as Behavioral Healthcare Corp,
    doing business as College Meadows,

               Defendant.




                            ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Dorothy Lewis, appearing pro se, appeals the district court’s

dismissal of her complaint against defendants Edward Stevenson, M.D. and

Christopher Murray, M.D., two physicians who provided medical care to her

father, Vernon Lewis, in the year prior to his death.   1
                                                            Her amended complaint,

though styled as a civil rights complaint under 28 U.S.C. § 1343, alleges that

defendants’ negligent medical care of her father contributed to his death. The

district court dismissed the complaint under Fed. R. Civ. P. 12(b)(1), ruling that it

lacked federal subject matter jurisdiction over the complaint because Ms. Lewis

clearly asserted only state law claims for medical malpractice and wrongful death.

The district court also dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, ruling that Ms. Lewis’s claims were barred by the statute

of limitations and the doctrine of res judicata, and that she lacked standing to




1
      Another party named as a defendant, BHS College Meadows Hospital, was
never served and was voluntarily dismissed from the case by Ms. Lewis.

                                             -2-
bring a survivor’s action. Our jurisdiction arises under 28 U.S.C. § 1291, and we

affirm.

       Ms. Lewis’ father suffered from Alzheimer’s, and died at age eighty-four in

August 1998. Prior to his death, he received medical care from Drs. Stevenson

and Murray. Ms. Lewis’ complaint seeks $50 billion in damages and an

additional $125 billion in punitive damages, claiming that defendants

overmedicated her father and provided negligent medical care. Although

Ms. Lewis’ complaint invoked jurisdiction under 28 U.S.C. § 1343, which relates

to federal jurisdiction of civil rights claims, her complaint does not allege any

facts that might establish a violation of Vernon Lewis’ constitutional rights or

form the basis of a federal civil rights cause of action.

       As the district court correctly explained, § 1343 creates no independent

substantive cause of action, but is a jurisdictional statute that provides the federal

courts with subject-matter jurisdiction to hear a civil rights conspiracy claim

under 42 U.S.C. § 1985, a claim for deprivation of one’s civil rights under color

of state law, or a claim for violation of any Act of Congress providing for the

protection of civil rights.   See 28 U.S.C. § 1343(a)(1) - (4). Because Ms. Lewis

did not allege any civil rights claim or allege any facts indicating that the federal

court had jurisdiction over her claims, defendants moved to dismiss her

complaint. If the district court lacks jurisdiction over the subject matter of the


                                           -3-
complaint, it must dismiss the action.   See Penteco Corp. Ltd. P’ship - 1985A v.

Union Gas Sys., Inc. , 929 F.2d 1519, 1521 (10th Cir. 1991) (further explaining

that federal courts are courts of limited jurisdiction, that there is a presumption

against the existence of federal jurisdiction, and that the party invoking federal

jurisdiction bears the burden of proving it).

         In response to defendants’ motions to dismiss, Ms. Lewis acknowledged

that her claims were for medical malpractice and wrongful death, and that

defendants were not acting under color of state law. She made the nonspecific

assertion that defendants’ actions violated her father’s civil rights under the Fifth

Amendment, but she did not explain or articulate any basis, factual or otherwise,

for this statement. Indeed, she did not assert any claim that involves any question

of federal law. Ms. Lewis stated only that the case would best be heard in federal

court.

         The district court ruled that Ms. Lewis had alleged only ordinary state law

tort claims, rather than any federal civil rights violations, and it therefore

dismissed the case because it lacked jurisdiction to consider her complaint. We

review such a dismissal under Rule 12(b)(1) de novo.      United States ex rel. Hafter

v. Spectrum Emergency Care, Inc.     , 190 F.3d 1156, 1160 (10th Cir. 1999).

         On appeal, Ms. Lewis challenges the district court’s dismissal for lack of

subject matter jurisdiction. She states that her complaint did not mention that her


                                           -4-
father was African-American and did not allege racial discrimination, but, she

asserts, for the first time on appeal, “discrimination       could have been a primary

factor for the negligent acts” of defendants. Aplt. Opening Br., at 6 (emphasis

added). Ms. Lewis’ mere assertion that defendants violated her father’s civil

rights is not sufficient to demonstrate that the district court has jurisdiction. “The

party seeking the exercise of jurisdiction in [her] favor must allege in [her]

pleading the facts essential to show jurisdiction.”         Penteco , 929 F.2d at 1521

(quotation omitted). Mere conclusory allegations of jurisdiction are not enough.

Id.

       Further, Ms. Lewis does not offer any evidentiary basis for her new and

hypothetical assertion that discrimination could have been a factor in the

allegedly negligent medical care. “[A]bsent extraordinary circumstances, we will

not consider arguments raised for the first time on appeal.”         McDonald v.

Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002). No such extraordinary

circumstances are present here; Ms. Lewis never alleged or even suggested racial

or other discrimination before the district court, nor does she now assert any

factual basis for racial or other discrimination.

       In short, Ms. Lewis has asserted only state law claims for medical

malpractice and wrongful death, claims over which the district court correctly

ruled it lacked subject-matter jurisdiction.         See Buerger v. Southwestern Bell Tel.


                                               -5-
Co., 982 F. Supp. 1253, 1255-56 (E.D. Tex. 1997) (explaining that no federal

civil rights statute is implicated by the tort of medical malpractice). “State

proceedings do not become civil rights matters by generalized, not to mention

unsupported, allegations . . . . ”   Ronan v. Stone , 396 F.2d 502, 503

(1st Cir. 1968).

       Because we agree that the district court lacked subject-matter jurisdiction

over Ms. Lewis’ complaint, we do not consider the district court’s additional

reasons for dismissal, namely that the claims are barred by statutes of limitation,

the doctrine of res judicata and Ms. Lewis’ lack of standing.     See United States ex

rel. Grynberg v. Praxair, Inc ., 389 F.3d 1038, 1042 (10th Cir. 2004);     Illinois v.

City of Chicago , 137 F.3d 474, 478 (7th Cir. 1998) (“Subject-matter jurisdiction

is the first question in every case, and if the court concludes that it lacks

jurisdiction it must proceed no further.”).

       We also decline to address Ms. Lewis’ contention that the district court

judge should have recused herself because Ms. Lewis is acquainted with the

judge’s secretary. Ms. Lewis states on appeal that she belongs to the same church

as the judge’s secretary and attended high school with her. She has not cited to

the record where this issue was raised in the district court,   see 10th Cir. R.

28.2(C)(2), and our review of the record has not revealed that she filed any

motion in the district court seeking the recusal of the judge or otherwise raising


                                             -6-
the issue. As noted above, we do not consider claims presented for the first time

on appeal.

      The judgment of the district court is AFFIRMED.



                                                   Entered for the Court



                                                   Robert H. Henry
                                                   Circuit Judge




                                        -7-
