Minny Frank v. Cascade Healthcare Community , 688 F. App'x 461 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MINNY FRANK, No. 14-35188
Plaintiff-Appellant, D.C. No. 6:11-cv-06402-AA
v.
MEMORANDUM*
CASCADE HEALTHCARE
COMMUNITY, INC., agent of St. Charles
Medical Center; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Minny Frank appeals pro se from the district court’s summary judgment in
her 42 U.S.C. § 1983 action alleging federal and state law claims in connection
with psychiatric emergency services she received at a hospital. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo summary judgment and
qualified immunity. Hughes v. Kisela, 841 F.3d 1081, 1084 (9th Cir. 2016). We
affirm.
The district court properly granted summary judgment on Frank’s § 1983
damages claims against defendants Namanny and Macdonnell because they are
entitled to qualified immunity for the alleged Fourth Amendment and Fourteenth
Amendment violations. See Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(explaining that “qualified immunity protects government officials from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known”
(citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Frank’s § 1983
claims against defendants Cascade Healthcare Community, Inc. (d/b/a St. Charles
Medical Center), Palmer, Timms, Ryan, Violet, Huffman, Lancaster, McBride,
Beutler, and Nelson because Frank failed to raise a genuine dispute of material fact
as to whether these private defendants were acting under color of state law. See
Kirtley v. Rainey, 326 F.3d 1088, 1092-96 (9th Cir. 2003) (describing criteria used
in evaluating whether a defendant is a state actor).
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The district court properly granted summary judgment on Frank’s
negligence per se claim because Frank failed to raise a genuine dispute of material
fact as to whether defendants violated any applicable statute or rule during the
provision of her medical care. See Buoy v. Kim, 221 P.3d 771, 779 (Or. Ct. App.
2009) (elements of a negligence per se claim under Oregon law); see also Abraham
v. T. Henry Constr., Inc., 249 P.3d 534, 537 n.5 (Or. 2011) (“[N]egligence per se
is . . . simply shorthand for a negligence claim in which the standard of care is
expressed by a statute or rule.”).
The district court properly granted summary judgment on Frank’s medical
negligence and negligent infliction of emotional distress (“NIED”) claims because
Frank failed to raise a genuine dispute of material fact as to whether defendants
breached a duty of care owed to her. See Creasey v. Hogan, 637 P.2d 114, 122
(Or. 1981) (medical negligence claim under Oregon law requires proof “of what is
proper conduct by practitioners in the community or a similar community under
circumstances similar to those which confronted the defendant”); Simons v. Beard,
72 P.3d 96, 103 (Or. Ct. App. 2003) (medical NIED claim under Oregon law
requires that “the defendant care provider breached a specific duty to be aware of
and guard against particular adverse psychological reactions or consequences to
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medical procedures” (citation and internal quotation marks omitted)).
The district court properly granted summary judgment on Frank’s claim of
intentional infliction of emotional distress (“IIED”) because Frank failed to raise a
genuine dispute of material fact as to whether defendants intended to inflict severe
emotional distress on her or that defendants’ conduct constitutes an extraordinary
transgression of the bounds of socially tolerable conduct. See McGanty v.
Staudenraus, 901 P.2d 841, 849 (Or. 1995) (en banc) (requirements of an IIED
claim under Oregon law).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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