                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 12, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-51260
                         Summary Calendar


GLORIA TELLES, Individually and as next friend of Jacob Telles, a
                              minor,

                       Plaintiff-Appellant,

                              versus

                     UNITED STATES OF AMERICA,

                        Defendant-Appellee.

                       --------------------
          Appeal From the United States District Court
                For the Western District of Texas
                  Civil Action No. 02-CV-0412FM
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Telles appeals the district court’s grant of summary judgment

in favor of the defendant, the United States of America, in a suit

under the Federal Tort Claims Act2 for the alleged negligence,


     *
       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this opinion should not be published and is not precedent except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.
     2
        Under the Federal Tort Claims Act, the United States is
liable in damages only if a private person would be liable for
the same allegedly negligent act or omission under the laws of
the state within which the act or omission occurred. See Skipper
v. United States, 1 F.3d 349, 352 (5th Cir. 1993). In the
instant case, the alleged acts and omissions occurred in Texas,
rendering its substantive law applicable.

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                                        -2-

specifically medical malpractice, of William Beaumont Army Medical

Center (WBAMC).       Additionally, she appeals the court’s denial of

her motion to disqualify the district judge.

     Upon suffering shaken-baby injuries at the hands of his

biological      mother,    Jacob    Telles    was    saved    by   an    emergency

craniotomy and subdural hematoma evacuation performed by Dr. Kaveh

Khajavi of WBAMC.         During Jacob’s surgery, a piece of his skull,

the bone flap, was removed.           Because of swelling, the bone flap

could     not   be   reinserted      immediately.        WBAMC     subsequently

transferred Jacob to Thomason Hospital.             The bone flap disappeared

at some point.

     The    district      court    granted   summary   judgment,        finding   no

genuine issues as to any material fact.              We affirm.     Under Texas

law, a medical malpractice plaintiff, who bears the ultimate burden

of proof, must produce evidence showing the four elements of

negligence under Texas law:           (1) legal duty owed by defendant to

the plaintiff; (2) breach of that duty; (3) actual injury to the

plaintiff; and (4) a showing that the breach was the proximate

cause of the injury. To adequately show causation, plaintiff must

present    evidence       of   a   “reasonable      medical   probability”        or

“reasonable probability” that their injuries were caused by the

negligence of one or more defendants.

     There is no genuine issue as to defendant’s breach of the

standard of care.      The plaintiff supplied the district court with



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no evidence other than sheer speculation as to who was responsible

for the loss of the bone flap.               Therefore, we agree with the

district court’s ruling.        Despite this finding, which in effect,

ends the analysis, this court will proceed to analyze the other

elements of negligence, as well.

     Even assuming a breach of the standard of care, there is no

genuine issue as to the actual injury suffered by the plaintiff as

a result of the loss of the bone flap.               Although Jacob wore a

helmet periodically, this was not an actual injury related to the

lost bone flap; instead, the helmet was prescribed to remedy a

diagnosed positional plagiocephaly by doctors not associated with

WBAMC.3     Likewise,      although    Jacob    faced   a   subsequent   major

cranioplasty surgery, this would have occurred regardless of the

loss of the bone flap. The subsequent surgery was a result of: (1)

the inability of Dr. Khajavi of WBAMC to replace it, due to

swelling;    and   (2)      doctors,   not     associated   with   WBAMC,   who

formulated a plan to wait a few years to perform the surgery, with

the hopes that Jacob’s defect would repair itself.

     Finally, even assuming a breach of the standard of care and

injury, there was no evidence that the breach proximately caused

any injury.    There is no genuine issue of material fact regarding

the appropriateness of the second surgery nor the manner in which

it was performed.        Also, other doctors, not associated with WBAMC,


     3
          This is an asymmetry of the back of the skull.

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recommended the second surgery occur years later.          Therefore, as

the bone flap was only usable for up to one year, even had it not

been lost, it would not have been used in the subsequent surgery.

The district court’s grant of summary judgment must be affirmed.

      The district court also denied plaintiff’s motion, filed

pursuant to 28 U.S.C. § 144, to disqualify the district judge.         We

see   no    personal   bias   against   plaintiff    or   her   attorney.

Plaintiff’s affidavit in support of recusal lacks specific factual

allegations that are required by this court.          Parrish v. Bd. of

Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir.

1975).     Instead, it consists of plaintiff’s opinions which is not

enough.    Henderson v. Dept. of Public Safety and Corrections, 901

F.3d 1288, 1296 (5th Cir. 1990) (...”[a]n affidavit is legally

insufficient under § 144 if it is based upon ‘information and

belief’ rather than personal knowledge.”).          Further, plaintiff’s

counsel’s affidavit also lacks merit.        It consists of facts and

allegations related to purely judicial proceedings involving him

and the court.    The Supreme Court has provided in Liteky v. United

States, 510 U.S. 540, 541 (1994) that,

      ...Not establishing bias or partiality,..., are expressions of
      impatience, dissatisfaction annoyance, and even anger, that
      are within the bounds of what imperfect men and women, even
      after having been confirmed as federal judges, sometimes
      display.     A   judge’s   ordinary   efforts   at   courtroom
      administration, even a stern and short-tempered judge’s
      ordinary efforts at courtroom administration–-remain immune.




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     The district court’s acts in granting summary judgment in

favor of   the   defendant   and   in   denying   plaintiff’s   motion   to

disqualify the district judge is

                                                                AFFIRMED.




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