Opinion
No. 08-5349.
Filed On: May 7, 2009.
BEFORE: Garland, Griffith, and Kavanaugh, Circuit Judges.
ORDER
Upon consideration of the motion to appoint counsel or amicus curiae; the motion for summary affirmance, the opposition thereto and motion for summary reversal, the response thereto and reply in support of summary affirmance, and the reply in support of summary reversal, which contains a request for judicial notice, it is
ORDERED that the motion for appointment of counsel or amicus curiae be denied. With the exception of defendants appealing or defending in criminal cases, appellants are not entitled to appointment of counsel when they have not demonstrated sufficient likelihood of success on the merits. It is
FURTHER ORDERED that the motion for summary affirmance be granted and the motion for summary reversal be denied. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court properly reviewed this case under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, because appellant's amended complaint did not sue any federal employees in their individual capacities. The amended complaint's reference to "et al." was not sufficient to name all of the defendants from appellant's original complaint. See Fed.R.Civ.P. 10(a).
The district court properly concluded that the majority of appellant's FTCA claims were either time-barred or not properly presented to the agency. See Simpkins v. District of Columbia Government, 108 F.3d 366, 371 (D.C. Cir. 1997); Bembenista v. United States, 866 F.2d 493, 499 (D.C. Cir. 1989). The doctrine of equitable estoppel is not applicable to appellant's case, because he presented no evidence that some extraordinary circumstances prevented him from filing his claims before the statute of limitations had run out. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2008).
With respect to the only claim appellant properly exhausted, the district court correctly determined that he failed to present expert testimony, as required by Tennessee law, see Tarpeh-Doe v. U.S., 28 F.3d 120, 123 (D.C. Cir. 1994), to establish the proper standard of care and demonstrate that appellee's actions fell below that standard.See Norris v. East Tn. Children's Hosp., 195 S.W.3d 78, 86-87 (Tenn.Ct.App. 2005). Aside from being improperly raised, see Singelton v. Wulf, 428 U.S. 106, 120 (1976) ("It is the general rule. . .that a federal appellate court does not consider an issue not passed upon below."), appellant's contention that under the doctrines of res ipsa loquitur and common knowledge his claims do not require expert testimony fails because even if these doctrines were applicable, expert testimony would still be necessary to prove that the alleged medical malpractice on the part of the appellee was the proximate cause of appellant's injury.See Meek v. HealthSouth Rehab. Ctr., 2006 WL 2106001, at *3 (Tenn.Ct.App. July 28, 2006).
Finally, the district court did not abuse its discretion when it dismissed the John Does from appellant's complaint, because appellant did not serve the summons upon the individuals designated as "John Doe" within the appropriate time frame. See Fed.R.Civ.P. 4(m). Nor has appellant shown that he suffered any prejudice from the various other rulings of the district court that he challenges on appeal. See United States v. Microsoft Corp., 253 F.3d 34, 100 (D.C. Cir. 2001) (circuit court will not disturb district court's management of its docket "except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant"). It is
FURTHER ORDERED that appellant's request for judicial notice be denied. See Fed.R.Evid. 201(b).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed.R.App.P. 41(b); D.C. Cir. Rule 41.