United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE United States District Judge.
for consideration the motion of defendant, United States of
America, for summary judgment. Plaintiff, Dennis Garcia, has
failed to respond to the motion, which is ripe for ruling.
The court, having considered the motion, the record, the
summary judgment evidence, and applicable authorities, finds
that the motion should be granted.
brings this action pursuant to the Federal Tort Claims Act
("FTCA"), raising claims of medical malpractice.
Plaintiff says that he suffered severe eye pain and headaches
unnecessarily for years, from 2 012 until January 2 016, when
his right eye was removed. Doc. 1.
of the Motion
says that plaintiff's failure to designate an expert to
establish the standard of care and breach thereof is fatal to
56(a) of the Federal Rules of Civil Procedure provides that
the court shall grant summary judgment on a claim or defense
if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986) . The movant bears the initial
burden of pointing out to the court that there is no genuine
dispute as to any material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 325 (1986). The movant can
discharge this burden by pointing out the absence of evidence
supporting one or more essential elements of the nonmoving
party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial."
Id. at 323. Once the movant has carried its burden
under Rule 56(a), the nonmoving party must identify evidence
in the record that creates a genuine dispute as to each of
the challenged elements of its case. Id. at 324;
see also Fed.R.Civ.P. 56(c) ("A party-asserting
that a fact ... is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in
the record ...."). If the evidence identified could not
lead a rational trier of fact to find in favor of the
nonmoving party as to each essential element of the nonmoving
party's case, there is no genuine dispute for trial and
summary judgment is appropriate. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 597
(1986). In Mississippi Prot. & Advocacy Sys., Inc. v.
Cotten, the Fifth Circuit explained:
Where the record, including affidavits, interrogatories,
admissions, and depositions could not, as a whole, lead a
rational trier of fact to find for the nonmoving party, there
is no issue for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
standard for granting a motion for summary judgment is the
same as the standard for rendering judgment as a matter of
law.Celotex Corp., 477 U.S. at 323. If the record taken
as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for
trial. Matsushita, 475 ...