                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                     August 4, 2003

                                                             Charles R. Fulbruge III
                                                                     Clerk
                            No. 03-60303
                           Summary Calendar




                    TAMILIA, JOSEPHINE, ESTATE OF

                                                  Plaintiff - Appellant


                                VERSUS


                      GULF COAST MEDICAL CENTER


                                                   Defendant - Appellee



           Appeal from the United States District Court
         For the Southern District of Mississippi, Biloxi
                            1:02-CV-53



Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

      Nicholas   Tamilia   challenges    the   district   court’s     order

granting summary judgment in favor of defendant, Gulf Coast Medical

Center in this wrongful death action filed by appellant following

the death of his wife, Josephine Tamilia.

      Appellant, who is pro se, alleged in his sworn complaint that


  *
   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opinion should not be published and is not precedent except under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.
in March 2001 his wife became ill while they were traveling near

Biloxi, Mississippi.      He brought her to the defendant’s medical

center in Biloxi.      His wife was put on a respirator and at about

6:30 p.m. on March 7, 2001 his wife asked appellant to get her

something to eat.      When he left she was awake and writing in her

diary.   When he returned with cheeseburgers ten or fifteen minutes

later    appellant’s   wife   was    unconscious   and   never   regained

consciousness thereafter.      When Mr. Tamilia returned he also saw

that she had black and blue marks on her neck, face and chest and

her purse was missing.    A nurse returned Mrs. Tamilia’s purse a few

minutes after he returned to the room.

     Mrs. Tamilia never regained consciousness and was transported

to Memorial Hospital in Gulfport the next day around 11:00 p.m.

Around 1:00 a.m. on March 9, 2001 appellant was told that his wife

had died.

     Appellant in later pleadings asserted that he claimed damages

for assault and battery as well as negligent failure of the

hospital to train and supervise its staff.          The district court

first granted summary judgment in favor of the defendant on the

intentional tort claims because they were time barred under the

Mississippi one year statute of limitations for intentional torts.

Appellant does not challenge that ruling.           The district court

initially denied the defendant’s motion for summary judgment on the

negligence    claims    but   then   on   reconsideration   granted   the

defendant’s motion to dismiss the negligence claims as well.

                                     2
     The   defendant    Gulf    Coast       Hospital     filed    no    supporting

documentation in support of the summary judgment except for the

deposition of appellant.       Gulf Coast did not rely on its hospital

records    or   file    any    affidavits         from    its     employees    or

representatives explaining what occurred during Mrs. Tamilia’s

hospitalization.     Gulf Coast simply relied on the lack of factual

support by the plaintiff to support its claims that Gulf Coast, its

employees and representatives were negligent.

     Under the circumstances presented in today’s case where the

defendant stands mute as to any explanation for the sudden change

in Mrs. Tamilia’s condition while she was under the defendant’s

care, including Mr. Tamilia’s ten or fifteen minute absence, or a

general explanation of its treatment of Mrs. Tamilia and her

reaction to that treatment, we conclude that plaintiff’s sworn

complaint is sufficient to raise an inference that defendant’s

employees were negligent. This completely un-rebutted inference

precludes summary judgment.

     In light of our conclusion that the district court erred in

granting   summary     judgment   to        the   defendant      on    plaintiff’s

negligence claims, we vacate the district court’s judgment and

remand this case to the district court for further proceedings

consistent with this opinion.

     VACATED AND REMANDED.




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