Sophocleous vs. Lawrence Memorial, No. 07-3147 (10th Cir. 2007)

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FILED United States Court of Appeals Tenth Circuit October 12, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court TO NYA SOPHOCLEO US, Plaintiff-Appellant, v. LA W REN CE M EM O RIA L HO SPITAL, No. 07-3147 (D.C. No. 07-CV-4029-RDR) (D . Kan.) Defendant-Appellee. OR D ER AND JUDGM ENT * Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. Plaintiff-Appellant Tonya Sophocleous, proceeding pro se, appeals from the dismissal of her medical malpractice claims by the District Court for the District of K ansas. W e have jurisdiction under 28 U .S.C. § 1291. Construing M s. Sophocleous s filings liberally, 1 we conclude that the district court correctly * This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. 1 Because M s. Sophocleous is proceeding pro se, we review her pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007). dismissed her claims for lack of subject matter jurisdiction and failure to state a claim for which relief could be granted. Accordingly, we AFFIRM the district court s order of dismissal. I. BACKGROUND M s. Sophocleous alleges that on February 9, 2007, she went to the emergency room at Lawrence M emorial Hospital and was diagnosed with a stomach flu. She returned the next day in a great amount of pain and was diagnosed with an ovarian cyst. R., Doc. 1, at 3. She sued for medical malpractice, seeking damages of $150 billion and a court order to force the hospital to treat her. The district court dismissed for lack of subject matter jurisdiction and for failure to state a claim for which relief could be granted. M s. Sophocleous timely filed a notice of appeal. II. D ISC USSIO N W e review the district court s grant of a motion to dismiss de novo. Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133, 1139 (10th Cir. 2006). M s. Sophocleous bears the burden of proof when invoking federal jurisdiction. M arcus v. Kansas Dep t of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). Diversity jurisdiction under 28 U .S.C. § 1332 is unavailable because M s. Sophocleous acknowledges that both she and the hospital are citizens of Kansas. Federal question jurisdiction under 28 U.S.C. § 1331 depends on a right of action under some federal law. No federal law was mentioned in the complaint, and -2- those mentioned before the district court and on appeal do not provide for rights of action in this situation. M s. Sophocleous relies primarily on the Emergency M edical Treatment and Active Labor Act ( EM TALA ), 42 U.S.C. § 1395dd, which is neither a federal malpractice nor a negligence statute. Scott v. Hutchinson Hosp., 959 F. Supp. 1351, 1357 (D. Kan. 1997). Her allegations do not support claims that would be cognizable under EM TALA, such as failing to conduct an appropriate medical screening or failing to further examine and treat a person whom the hospital has determined has an emergency medical condition. Id. M s. Sophocleous s unsupported citation of the Fifth Amendment for the first time on appeal will not create a federal question here. See Cum mings v. Norton, 393 F.3d 1186, 1190 (10th Cir. 2005) (noting the general rule that issues not raised below are waived on appeal ). And while 28 U.S.C. § 1343 provides jurisdiction over civil rights claims, M s. Sophocleous has not alleged any facts that would give rise to a legally-cognizable civil rights violation. Therefore, the district court correctly dismissed these claims for lack of jurisdiction and failure to state a claim for which relief could be granted. 2 2 The district court found that dismissal of M s. Sophocleous s state law claims also was appropriate because she failed to comply with the notice requirement of Kansas Statutes Annotated § 12-105b(d). See generally Kan. Stat. Ann. § 12-105b(d) ( No person may initiate an action against a municipality unless the claim has been denied in whole or part [after notice is filed]. ) On appeal, it is not clear whether M s. Sophocleous challenges this district court (continued...) -3- Accordingly we AFFIRM the district court s order dismissing M s. Sophocleous s complaint. Entered for the Court Jerome A. Holmes Circuit Judge 2 (...continued) ruling. Indeed, M s. Sophocleous asserts that the district court erred in misinterpreting her complaint as being founded on state law claims. See Aplt. Br. at 2. In any event, we need not reach this issue because, even if notice were properly given, the district court would have been without jurisdiction to hear any of M s. Sophocleous s state law claims. -4-

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