                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-15004         ELEVENTH CIRCUIT
                                                         JUNE 13, 2012
                            Non-Argument Calendar
                          ________________________        JOHN LEY
                                                           CLERK

                  D.C. Docket No. 3:09-cv-01032-HLA-MCR

JAMES A. NELSON,

                                                         Plaintiff-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                         Defendant-Appellee.

                        __________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (June 13, 2012)

Before BARKETT, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      James A. Nelson appeals pro se the district court’s dismissal of his claim

against the United States brought under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346(b). Nelson alleged medical malpractice in connection with a

surgical procedure that he had undergone at the St. Louis Veterans Association

Medical Center (“VAMC”) in Missouri. The district court granted the

government’s motion to dismiss based on Nelson’s failure to identify an expert

witness and failure to provide an affidavit in support of his claims, both of which

were required by applicable Missouri law. The court also found that any claims of

assault and battery that Nelson may have asserted were outside the ambit of the

FTCA, and therefore the court lacked jurisdiction over those claims. On appeal,

Nelson argues that Missouri law should not have been applied to his claim.

      We review de novo the dismissal of an action for lack of subject matter

jurisdiction, as well as the district court’s interpretation and application of

statutory provisions. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997).

The FTCA provides a limited waiver of the sovereign immunity of the United

States for tort claims. Dalrymple v. United States, 460 F.3d 1318, 1324 (11th Cir.

2006). It authorizes “private tort actions against the United States ‘under

circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission

occurred.’” United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C.

§ 1346(b)(1)). The “law of the place” does not mean federal law; the FTCA “was

                                           2
not intended as a mechanism for enforcing federal statutory duties.” Ochran v.

United States, 273 F.3d 1315, 1317 (11th Cir. 2001). Rather, the FTCA “was

designed to provide redress for ordinary torts recognized by state law.” Id.

(quotation omitted). Therefore, “unless the facts support liability under state law,

the district court lacks subject matter jurisdiction to decide an FTCA claim.” Id.

      Nelson’s medical malpractice claims arose in Missouri, where VAMC is

located. A prima facie case of medical malpractice in Missouri “consists of three

general elements: (1) an act or omission of the defendant failed to meet the

requisite medical standard of care; (2) the act or omission was performed

negligently; and (3) the act or omission caused the plaintiff’s injury.” Edgerton v.

Morrison, 280 S.W.3d 62, 68 (Mo. 2009) (en banc). Except in limited

circumstances not present here, “allegations of negligence in a medical

malpractice action are such that expert testimony is required to prove the

acceptable standard of professional care; and without expert opinion, the issue of

breach of that standard of care cannot be made.” Morrison v. St. Luke’s Health

Corp. 929 S.W.2d 898, 905 (Mo. Ct. App. 1996).

      Nelson never disclosed a medical expert. Therefore, Nelson did not support

his medical malpractice claim with evidence of the applicable medical standard of

care, and his claim was due to be dismissed on this basis. Additionally, Nelson had

                                          3
until April 16, 2010 with the Court’s permission to file an affidavit of a healthcare

provider to support his claim, as required by Mo. Ann. Stat. § 538.225. Nelson

never provided the required affidavit; thus, dismissal without prejudice was

permissible on this basis as well. See Mo. Ann. Stat. § 538.225(6). Finally, to the

extent that Nelson’s complaint may be read to characterize the surgical procedure

as actionable assault and battery, such a claim would not be cognizable under the

FTCA. See 28 U.S.C. § 2680(h).

      AFFIRMED.




                                          4
