Ford v. Surprise Family Urgent Care Center, LLC ( 2013 )

FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY FORD, a married man, No. 12-17129
Plaintiff - Appellant, D.C. No. 2:10-cv-01920-SRB
v.
MEMORANDUM*
SURPRISE FAMILY URGENT CARE
CENTER, LLC; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Johnny Ford appeals pro se from the district court’s orders in his action
alleging racial discrimination under 42 U.S.C. § 1981 and § 2000a, and medical
negligence under Arizona state law. We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal
under Fed. R. Civ. P. 12(b)(6)); Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1144
(9th Cir. 2006) (summary judgment). We affirm.
The district court properly dismissed Ford’s claim under 42 U.S.C. § 2000a
because defendant Surprise Family Urgent Care Center does not qualify as a
“public accommodation” as defined in the statute. See 42 U.S.C. § 2000a(b).
The district court properly granted summary judgment on Ford’s § 1981
claim because Ford failed to raise a genuine dispute of material fact as to the fourth
element of his prima facie claim of discrimination, that is, whether services
remained available to similarly-situated individuals who were not members of his
protected class. See Lindsey, 447 F.3d at 1144 (plaintiff must satisfy the initial
burden of establishing a prima facie case of racial discrimination).
The district court properly granted summary judgment on Ford’s medical
negligence claim because Ford failed to produce the required expert testimony
concerning the “degree of care, skill and learning expected of a reasonable, prudent
health care provider in the profession or class to which he belongs within the state
acting in the same or similar circumstances.” Ariz. Rev. Stat. Ann. § 12-563(1);
see Seisinger v. Siebel, 203 P.3d 483, 492-93 (Ariz. 2009) (en banc) (explaining
that, except in situations where it is a matter of common knowledge, “the standard
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of care normally must be established by expert medical testimony” and that failure
to produce the required expert testimony mandates judgment for defendant).
The district court did not abuse its discretion in denying Ford’s motion for
reconsideration because Ford failed to establish grounds for such relief. See Sch.
Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.
1993) (setting forth standard of review and grounds for reconsideration under Fed.
R. Civ. P. 59(e) and 60(b)).
We reject Ford’s contentions that he was denied due process and equal
protection of the law.
AFFIRMED.
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