Emilio Noyola v. Stiles

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United States Court of Appeals For the Eighth Circuit ___________________________

No. 21-1941 ___________________________

Emilio Noyola

lllllllllllllllllllllPlaintiff - Appellant

Stiles, Physician Assistant, FCI Forrest City; Ward, Physician Assistant, FCI Forrest City; John Elam, Lieutenant, FCI Forrest City; Odems, Lieutenant, FCI Forrest City; United States of America; Nichols, Officer, FCI Forrest City; United States Bureau of Prisons

lllllllllllllllllllllDefendants - Appellees ____________

Appeal from United States District Court for the Eastern District of Arkansas - Delta ____________

Submitted: November 16, 2021 Filed: November 24, 2021 [Unpublished] ____________

Before GRUENDER, SHEPHERD, and KOBES, Circuit Judges. ____________

PER CURIAM.

Federal inmate Emilio Noyola appeals the district court’s1 adverse grant of summary judgment in his Federal Tort Claims Act (FTCA) action. Upon de novo review, see Williams v. Wells Fargo Bank, N.A., 901 F.3d 1036, 1039 (8th Cir. 2018), we conclude that summary judgment was properly granted, as Noyola failed to provide medical expert testimony in support of his claim of medical negligence. See Ark. Code Ann. § 16-114-206(a) (requiring expert testimony regarding standard of care, breach thereof, and proximate causation when alleged negligence is not within jury’s comprehension as matter of common knowledge); Wright v. United States, 892 F.3d 963, 966 (8th Cir. 2018) (in FTCA claim, applicable tort law is law of place where act or omission occurred); Mitchell v. Lincoln, 237 S.W.3d 455, 460 (Ark. 2006) (rejecting argument that laymen could understand that internist should follow specialist’s recommendations; absent expert testimony demonstrating why recommendations should be followed, jury could not know how, why, or whether failure to follow recommendations caused plaintiff’s harm).

We lack jurisdiction to review the magistrate judge’s orders denying Noyola’s motions for appointment of counsel, as he did not appeal those orders to the district court. See Williams, 901 F.3d at 1042 (when appellant fails to object to magistrate judge’s non-dispositive order before district court, appellate court cannot review order). As Noyola does not argue the merits of his claims against the other defendants, those claims are deemed waived. See Waters v. Madson, 921 F.3d 725, 744 (8th Cir. 2019).

The judgment is affirmed. See 8th Cir. R. 47B. ______________________________

1 The Honorable Brian S. Miller, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern District of Arkansas.

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