Sam Jones v. Deaconess Billings Clinic

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAM E. JONES, No. 08-35654
Plaintiff - Appellant, D.C. No. 1:06-cv-00015-BLG-
RFC
v.
DEACONESS BILLINGS CLINIC; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Sam E. Jones appeals pro se from the district court’s order dismissing
without prejudice his action alleging medical malpractice and a violation of the
Hill-Burton Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review
*
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).
RA/Research
de novo, Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995), and we
affirm.
The district court properly dismissed Jones’s medical malpractice claims
because the record indicates that he failed to exhaust his administrative remedies
required under state law. See Mont. Code Ann § 27-6-791 (“No malpractice claim
may be filed in any court against a health care provider before an application is
made to the panel and its decision is rendered.”).
The district court properly dismissed Jones’s claim under the Hill-Burton
Act because he failed to allege facts suggesting that the clinic, rather than a third
party, discriminated against him. See 42 C.F.R. § 124.9 (providing that medical
facilities receiving federal grants shall not discriminate based on race, inter alia);
see also Caviness v. Horizon Cmty. Learning Ctr, 590 F.3d 806, 812 (9th Cir.
2010) (claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged).
Jones did not object to he magistrate judge’s order denying his motion for a
transfer of venue and thus forfeited his right to challenge it on appeal. See
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1173-74 (9th Cir. 1993)
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(concluding that a party who fails to timely object to a magistrate judge’s
nondispositive order forfeits the right to raise the issue on appeal).
Jones’s remaining contentions are unpersuasive.
AFFIRMED.
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