IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41216 Summary Calendar

WALI MUHAMMED,

Plaintiff-Appellant,

versus

WADLEY REGIONAL MEDICAL CENTER FOUNDATION, doing business as Wadley Regional Medical Center; ROBERT L. MACK, M.D., also known as Texarkana Radiology Associates; DIRECTOR OF RADIOLOGY, Director of Radiology at Wadley (Name Unknown),

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:97-CV-8 --------------------

October 22, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant (# 19148-009) Wali Muhammed filed this diversity

action against Wadley Regional Medical Center (Wadley) and its

Director of Radiology, Dr. Robert L. Mack. Muhammed alleged that

when he was a Wadley outpatient on or about March 30, 1995,

Associate Radiologist Dr. William R. Beaty negligently erred in

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-41216 -2-

evaluating MRI results and in diagnosing his condition. This

allegedly resulted in Muhammed’s not being treated for his

illness and his becoming a paraplegic. Muhammed has sought to

hold Wadley and Dr. Mack liable for Dr. Beaty’s alleged

negligence.

The district court granted summary judgment to Dr. Mack on

all of Muhammed’s claims against him. The court granted summary

judgment to Wadley relative to one of Muhammed’s claims and

dismissed his other claims against Wadley. The court also denied

Muhammed’s belated motion to amend his pleading, to allege a

claim against Dr. Beaty. We AFFIRM the district court’s

judgment.

Muhammed contends that the district court reversibly erred

by dismissing his action as against Wadley. He asserts that the

primary issue is whether Wadley violated 42 U.S.C. § 1395dd,1 by

failing to provide the proper medical screening and diagnostic

testing and by releasing him before his condition stabilized.

Section 1395dd “was not intended to be used as a federal

malpractice statute, but instead was enacted to prevent ‘patient

dumping,’ which is the practice of refusing to treat patients who

are unable to pay.” Marshall v. East Carroll Parish Hosp. Serv.

Dist.,

(5th Cir. 1998). “Accordingly, an

EMTALA ‘appropriate medical screening examination’ is not judged

1 Section 1395dd is known as the Emergency Medical Treatment and Action Labor Act (EMTALA), and as the Anti-Dumping Statute. No. 98-41216 -3-

by its proficiency in accurately diagnosing the patient’s

illness, but rather by whether it was performed equitably in

comparison to other patients with similar symptoms.”

Muhammed never has suggested that Wadley discriminated

against him because he was unable to pay. Furthermore, he has

not suggested that his examination was not “performed equitably

in comparison to other patients with similar symptoms.”

Marshall,

. Because there is no indication that

Muhammed could remedy these deficiencies if he were permitted to

amend his supplemental pleading, the district court did not err

by effectively dismissing his EMTALA claim with prejudice. See

Jacquez v. Procunier,

(5th Cir. 1986).

Muhammed contends that the district court violated Article

III of the Constitution by allowing the magistrate judge to rule

on Muhammed’s request to amend his complaint to allege the

§ 1395dd claim. This lacks merit because the magistrate judge

only recommended granting Wadley’s motion to strike his

supplemental pleading. The district court made the dispositive

ruling, upon adopting the magistrate judge’s initial report and

recommendation. This procedure was in accordance with

(b)(1)(A) and the district court’s standard referral order.

Muhammed contends that the district court erred by granting

summary judgment to Dr. Mack, because several genuine issues of

material fact exist. As the district court held, Dr. Mack met

his burden to “point out the absence of evidence supporting the No. 98-41216 -4-

nonmoving party’s case.” Skotak v. Tenneco Resins, Inc.,

(5th Cir. 1992) (citation and quotation marks

omitted). Since Dr. Mack met his burden, he was entitled to

summary judgment unless Muhammed “[went] beyond the pleadings and

designate[d] specific facts showing that there is a genuine issue

for trial.” Tubacex, Inc. v. M/V RISAN,

(5th

Cir. 1995). “To meet this burden, the nonmovant must identify

specific evidence in the record, and articulate the precise

manner in which that evidence support[s] [his] claim[s].” Stults

v. Conoco, Inc.,

(5th Cir. 1996) (citation and

quotation marks omitted).

However, Muhammed does not now attempt to show that he

presented sufficient proof in the district court to defeat Dr.

Mack’s motion for summary judgment. Muhammed does not even

advert to Dr. Mack’s evidence, which the district court found

sufficient to support summary judgment on his behalf.

Muhammed asserts that the district court erred by refusing

to permit discovery prior to ruling on summary judgment, without

specifying which ruling he is referring to. If Muhammed meant

this assertion to be a discrete appellate point, then he has

abandoned it by not briefing it. See Al-Ra’id v. Ingle,

(5th Cir. 1995).

Muhammed contends that the district court’s failure to issue

a scheduling order, pursuant to Fed. R. Civ. P. 16(b), was

reversible error. He is not entitled to relief on this point No. 98-41216 -5-

because he has failed to demonstrate how the absence of a

scheduling order may have prejudiced him, i.e., adversely

affected any of his substantial rights. See

(harmless error).

Muhammed contends that he is entitled to relief because he

was denied mediation, the magistrate judge having denied his two

motions therefor. Because Muhammed did not appeal the magistrate

judge’s rulings to the district court, however, this court lacks

jurisdiction of his mediation claim. See Colburn v. Bunge

Towing, Inc.,

(5th Cir. 1989).

Muhammed contends that the district court reversibly erred

by denying him leave to amend his complaint to add Dr. Beaty as a

defendant, on grounds that Dr. Beaty is an indispensable party;

the district court did not issue a scheduling order; and Dr.

Beaty is primarily responsible for Muhammed’s physical condition.

Muhammed also asserts conclusionally that none of the parties

would have suffered if the court had allowed the amendment.

Rule 15(a), Fed. R. Civ. P., states that “leave [to amend]

shall be freely given when justice so requires.” Whether “to

grant leave is within the discretion of the court, although if

the court lacks a substantial reason to deny leave, its

discretion is not broad enough to permit denial.” State of

Louisiana v. Litton Mortgage Co.,

(5th Cir.

1995) (citations and quotation marks omitted). No. 98-41216 -6-

Rule 15(a) does not contain a “time limit for permissive

amendment, [but] [a]t some point[,] time delay on the part of a

plaintiff can be procedurally fatal. In such a situation, the

plaintiff must meet the burden of showing that the delay was due

to oversight, inadvertence, or excusable neglect. . . .”

(citations and quotation marks omitted).

Muhammed filed his said motion to amend almost one year

after the two-year Texas statute of limitations for medical

malpractice had run. Tex. Rev. Civ. Stat. Ann. art. 4590i,

§ 10.01 (West Supp. 1999). Thus, if leave to amend were granted

and the amendment related back to the date of filing of the

complaint, a time-barred claim would be revived. Such a

relation-back would not be proper because “the institution of an

action against one [alleged tortfeasor would not serve] to

provide notice of the litigation to the other,” and because

Muhammed did not make any mistake concerning Dr. Beaty’s identity

as having participated in the relevant episode. See Jacobsen v.

Osborne,

(5th Cir. 1998).

Furthermore, Muhammed has not attempted to explain why he

delayed so long. Nor has he attempted to explain why he omitted

to include a claim against Dr. Beaty in the two amended pleadings

which the district court allowed him to file. See Whitaker v.

City of Houston, Texas,

(5th Cir. 1992).

Finally, Dr. Beaty was not an indispensable party, as

Muhammed asserts he was. See Fed. R. Civ. P. 19(a). No. 98-41216 -7-

Accordingly, the district court did not abuse its discretion in

denying Muhammed leave to amend to allege a claim against Dr.

Beaty. See Litton Mortgage Co.,

; Jacobsen,

. Whitaker,

.

JUDGMENT AFFIRMED.