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 2023-03

Maricela Ramirez v. Joshua Kornegay ( 2023 )


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  •                                                                               FILED
NOT FOR PUBLICATION
MAR 23 2023
UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARICELA RAMIREZ,                                No.   21-35645
Plaintiff-Appellant,               D.C. No. 3:20-cv-00152-JR
v.
MEMORANDUM*
JOSHUA KORNEGAY, M.D.; SARAH
GOMEZ, M.D.; ADDRIENNE HUGHES,
M.D.; LARA JESIC, FNP; MATTHEW
NOBLE, M.D.; VERDA DEW, LCSW;
SUSAN YODER, RN BSN; GREG
MOAWAD; KARYN THRAPP, RN BSN;
ERIC BROWN; OREGON
DEPARTMENT OF JUSTICE; STATE
OF OREGON; OREGON HEALTH AND
SCIENCE UNIVERSITY; DOES, 1 to
100, Inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 22, 2023**
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges
Maricela Ramirez appeals from the district court’s order granting summary
judgment in favor of the defendants in her civil rights action. We have jurisdiction
pursuant to
    28 U.S.C. § 1291
    . We review the summary judgment de novo, Leslie
v. Grupo ICA,
    198 F.3d 1152
    , 1157 (9th Cir. 1999), and affirm.
The district court did not err by considering Ramirez’s litigation history or
the medical records, which were properly submitted by the defendants during
summary judgment.
The state, state agencies, and state officials1 sued for damages in their
official capacities are entitled to Eleventh Amendment immunity and cannot be
sued as “persons” under
    42 U.S.C. § 1983
    . Will v. Michigan Dep’t of State Police,
    491 U.S. 58
    , 71 (1989); Brown v. Oregon Dep’t of Corr.,
    751 F.3d 983
    , 988-89
(9th Cir. 2014).
Ramirez filed her original complaint on January 27, 2020. Therefore, any
federal civil rights and state common law claims for events occurring before
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
The state defendants are the State of Oregon, the Oregon Department of
Justice, and state agency officials Thrapp and Brown.
2
January 27, 2018 are barred by the two-year statutes of limitations. Cooper v. City
of Ashland,
    871 F.2d 104
    , 105 (9th Cir. 1989) (per curiam);
    Or. Rev. Stat. § 12.110
    (1);
    Or. Rev. Stat. § 30.275
    (9). All of the claims alleging that the hospital
defendants2 discriminated against Ramirez in public accommodations in violation
of Oregon Revised Statutes § 659A.403 for treatment occurring before January 27,
2019 are barred by the one-year statute of limitations set forth in Oregon Revised
Statutes § 659A.875(4).
Summary judgment was proper for all of the defendants because Ramirez
failed to offer any evidence to support any of her claims and to rebut the medical
evidence produced by the hospital defendants. Her own subjective beliefs and
wholly conclusory allegations do not satisfy the requirement that she come forward
with evidence to support her claims during summary judgment. Lujan v. Nat’l
Wildlife Fed’n,
    497 U.S. 871
    , 888 (1990).
The mere fact that the district court ruled against Ramirez does not establish
bias. Leslie,
    198 F.3d at 1160
    . The district court did not abuse its discretion by
denying Ramirez’s requests for appointment of counsel. See Palmer v. Valdez,
    560 F.3d 965
    , 970 (9th Cir. 2009) (setting forth the standard for appointment of
2
The hospital defendants are Oregon Health and Science University, a public
hospital, and its medical staff, including defendants Hughes, Jesic, Moawad, Dew,
Kornegay, Gomez, Noble, and Yoder.
3
counsel). Nor did it abuse its discretion by denying leave to file a third amended
complaint at the summary judgment stage of the case. See AmerisourceBergen
Corp. v. Dialysist West, Inc.,
    465 F.3d 946
    , 951 (9th Cir. 2006) (“[A] district court
need not grant leave to amend where the amendment: (1) prejudices the opposing
party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is
futile”). Nor did the district court abuse its discretion by denying Ramirez’s
motion for the appointment of a Rule 706 expert. See Walker v. Am. Home Shield
Long Term Disability Plan,
    180 F.3d 1065
    , 1070-71 (9th Cir. 1999).
Appellant’s Motion to File Substitute Brief (Dkt. Entry No. 34) is
GRANTED. The Clerk of Court shall file the substitute reply brief (Dkt. Entry No.
35) to replace the original reply brief (Dkt. Entry No. 33).
AFFIRMED.
4