James Johnson v. United States ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ELLIS JOHNSON, No. 12-16304
Plaintiff - Appellant, D.C. No. 3:10-cv-00647-LB
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Laurel Beeler, Magistrate Judge, Presiding**
Submitted May 13, 2015***
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
James Ellis Johnson appeals pro se from the district court’s summary
judgment in his Federal Tort Claims Act (“FTCA”) action alleging medical
malpractice in connection with treatment provided by the Department of Veterans
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Affairs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Ford v. City of Yakima, 706 F.3d 1188, 1192 (9th Cir. 2013) (per curiam) (cross-
motions for summary judgment). We may affirm on any basis supported by the
record, Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009), and we
affirm.
The district court properly granted summary judgment for defendant on
Johnson’s premature discharge claim because Johnson failed to raise a genuine
dispute of material fact as to whether defendant’s alleged breach of duty caused
any of Johnson’s injuries. See Conrad v. United States, 447 F.3d 760, 767 (9th
Cir. 2006) (in an FTCA action, the law of the state in which the alleged tort
occurred applies); Johnson v. Superior Court, 49 Cal. Rptr. 3d 52, 58 (Ct. App.
2006) (elements of medical malpractice claim under California law and expert
evidence requirement); see also Miranda v. Bomel Constr. Co., Inc., 115 Cal. Rptr.
3d 538, 545-46 (Ct. App. 2010) (in a personal injury action, causation must be
proven within a reasonable medical probability based upon competent expert
testimony; mere possibility alone is insufficient).
The district court properly granted summary judgment for defendant on
Johnson’s remaining claims because Johnson failed to raise a genuine dispute of
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material fact as to at least one element of his claims. See Johnson, 49 Cal. Rptr.
3d at 58.
The district court did not abuse its discretion in its evidentiary rulings. See
Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 813 (9th Cir. 2002)
(standard of review; reversal is appropriate for an evidentiary error at summary
judgment only when the error is prejudicial).
The district court did not abuse its discretion by denying Johnson’s motion
for reconsideration because Johnson failed to establish grounds for such relief.
See Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
Cir. 1993) (standard of review and grounds for reconsideration under Fed. R. Civ.
P. 59(e) and 60(b)); see also N.D. Cal. Civ. L.R. 7-9 (requirements for motions to
reconsider); Hinton v. Pac. Enters., 5 F.3d 391, 395-96 (9th Cir. 1993) (standard of
review for the application of a local rule).
The district court did not abuse its discretion by denying Johnson’s motions
to compel responses to interrogatories. See Preminger v. Peake, 552 F.3d 757,
768 n.10 (9th Cir. 2008) (standard of review); see also Laub v. U.S. Dep’t of
Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (noting the district court’s broad
discretion in discovery matters and “actual and substantial prejudice” requirement).
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The district court did not abuse its discretion by denying Johnson’s motion
for recusal under 28 U.S.C. § 455 because Johnson did not establish a ground for
recusal. See 28 U.S.C. § 455(b)(3); United States v. Johnson, 610 F.3d 1138,
1147 (9th Cir. 2010) (discussing grounds for recusal under 28 U.S.C. § 455).
Moreover, to the extent that the motion was brought under 28 U.S.C. § 144, there
was no error in failing to refer the motion to another judge because Johnson failed
to support his motion with a legally sufficient affidavit. See 28 U.S.C. § 144
(“timely and sufficient affidavit” requirement); id. § 1746 (“unsworn declaration”
requirement).
We reject Johnson’s contentions concerning the deposition of his treating
physician, the manner in which the district court conducted the hearing on
summary judgment, the alleged conspiracy to undermine his litigation efforts, and
defendant’s alleged failure to engage in meaningful settlement discussions.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
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