                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 30, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                            No. 03-10111
                          Summary Calendar



JAMES CHRISTIAN KINZIE,

                                    Plaintiff-Appellant,

versus

DALLAS COUNTY HOSPITAL DISTRICT,
doing business as Parkland Memorial Hospital,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:99-CV-2825-L
                       --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     James Christian Kinzie appeals the dismissal of his

42 U.S.C. § 1983 complaint against Dallas County Hospital

District, doing business as Parkland Memorial Hospital

(Parkland), arising from his receipt of HIV-positive blood.

Kinzie argues that the district court erred in dismissing his

claim under 21 C.F.R. § 610.47 because that regulation creates

enforceable rights under 42 U.S.C. § 1983.   However, 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that this opinion should not be published and is not precedent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.
                           No. 03-10111
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regulation did not become effective until February 7, 1997, i.e.,

after Kinzie learned of his HIV-positive status pursuant to a

December 23, 1996, laboratory report.     See 61 Fed. Reg. 66919

(December 19, 1996).   Therefore, even were the regulation a

constitutional right or a right created by federal law

enforceable under 42 U.S.C. § 1983, it is not applicable to

Kinzie.   See Sierra Med. Ctr. v. Sullivan, 902 F.2d 388, 392 (5th

Cir. 1990).

     Kinzie argues that he stated a substantive due-process claim

by alleging that Parkland’s conduct of recklessness and

indifference shocks the conscience.   However, the allegations of

his complaint with regard to the failure to screen the donor or

test the blood are, at most, allegations of negligence, and,

therefore, cannot state a claim for substantive due process.       See

County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).

Although Kinzie’s complaint used terms like “shock the

conscience” and “deliberate indifference,” as the district court

found, Kinzie’s claims regarding Parkland’s failure to screen

donors and test the blood were “analogous to a fairly typical

state-law tort claim: [Parkland] breached its duty of care to

[Kinzie] by failing to provide [safe blood].”       Collins v. City of

Harker Heights, Tex., 503 U.S. 115, 128 (1992).      The Supreme

Court has “rejected claims that the Due Process Clause should be

interpreted to impose federal duties that are analogous to those

traditionally imposed by state tort law.”     Id.
                            No. 03-10111
                                 -3-

     Kinzie’s reliance on Lewis, a mid-level culpability case, is

misplaced.    For Kinzie’s reliance on Lewis to prevail his

allegations must establish that Parkland had mid-level fault,

i.e., had been reckless or grossly negligent.   As has already

been discussed, Kinzie’s complaint established only negligence,

not gross negligence.

     Kinzie also argues that he alleged that Parkland’s

established policy of inadequate training and supervision and its

customs caused violations of his constitutional rights.   However,

those arguments deal with whether Parkland is liable, which is

immaterial because no constitutional violations occurred.     See

Collins, 503 U.S. at 120.

     Kinzie argues that the district court should not have

dismissed his access-to-courts claim because he pleaded the

necessary elements.   Kinzie has not established an underlying

claim and therefore cannot establish an access-to-court claim.

See Christopher v. Harbury, 536 U.S. 403, 415 (2002).

     Kinzie argues that his “special relationship” with Parkland

arising out of the federal regulation that required Parkland to

inform him of his HIV status involved Fourteenth Amendment

protection.    A state’s failure to protect an individual against

private violence is not a due-process violation unless there is a

special relationship between the state and the individual.

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189,

197-200 (1989).   This special relationship exists “only when the
                            No. 03-10111
                                 -4-

person is involuntarily taken into state custody and held against

his will through the affirmative power of the state.”      Walton v.

Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995)(en banc).      There is

no indication of any such special relationship between Parkland

and Kinzie.

     Kinzie also argues that his complaint stated the elements of

constitutional deprivations resulting from a state-created

danger.   A review of the complaint reveals that Kinzie did not

allege that he was harmed by a third party.      Therefore, even

assuming the existence of the state-created danger theory in this

court, Kinzie has not alleged the requisite elements.      See

Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997).

     Kinzie argues that the complaint alleged a violation of his

constitutional right to medical care.      No general right to

medical care exists; such a right has been found only where there

exists a special custodial or other relationship between the

person and the state.   See, e.g., Estelle v. Gamble, 429 U.S. 97,

103 (1976); see also City of Revere v. Massachusetts Gen. Hosp.,

463 U.S. 239, 244 (1983).   Kinzie has identified no special

custodial or other relationship giving rise to a right to medical

care, and this claim fails.

     Kinzie argues that the district court’s analysis was flawed

because it stripped Kinzie’s complaint of “adjectival descriptors

and modifiers” when it should have considered all of his

allegations, making all factual inferences in his favor.      The
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                                -5-

district court was not required to accept Kinzie’s conclusional

allegations or legal conclusions as true simply because the

complaint used the correct technical “buzz words.”      See Jacquez

v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).

     Kinzie also argues that the district court improperly

considered his state-court pleadings, which were outside the

scope of his federal complaint.   Although the state-court

complaint was attached to Parkland’s motion to dismiss, it was

not central to Kinzie’s claims, and the district court should not

have considered it.   See Collins, 224 F.3d at 498-99.    However,

the district court’s reliance on the similarity of Kinzie’s

allegation in his state-court negligence action and his alleged

constitutional violations in his federal complaint was only a

part of the district court’s reasoning, and, for reasons already

stated, Kinzie’s substantive due-process claim fails.

     Kinzie also argues that the district court failed to

distinguish between gross and simple negligence, improperly

determined that a jury should not have the opportunity to

determine whether Parkland’s conduct shocked the conscience, and

misapplied Collins.   As has already been discussed, the district

court did not err in dismissing his claims and did not misapply

Collins.   The district court’s judgment is AFFIRMED.
