Opinion
3:20-cv-152-JR
05-03-2021
MARICELA RAMIREZ, Plaintiff, v. JOSHUA KORNEGAY, M.D., et al., Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Pro se plaintiff, Maricela Ramirez, brings this action against various medical providers alleging violation of her civil rights, breach of fiduciary duty, violation of the Emergency Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd), and intentional infliction of emotional distress. Defendants Oregon Health and Science University (OHSU), Adrienne Hughes, M.D., Lara Jesic, FNP, Greg Moawad, Verda Dew, LCSW, Joshua Kornegay, M.D., Sarah Gomez, M.D., Matthew Noble, M.D., and Susan Yoder, RN, BSN (collectively the OHSU defendants) move for summary judgment as to all claims against them. Defendants Eric Brown, Oregon Department of Justice, State of Oregon, and Karyn Thrapp (collectively referred to as the State defendants) also move for summary judgment as to all claims against them. For the reasons stated below, the motions should be granted.
STANDARDS
A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . ..” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
It is the responsibility of the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Keiffer v. Pernsteiner, 967 F.2d 527 (9th Cir. 1992). In order for a party to avoid summary judgment, such facts must be supported by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Fed R. Civ. P. 56(c)(1)(A). Where an affidavit or declaration is relied on to oppose a summary judgment motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed R. Civ. P. 56(c)(4). Where the party opposing summary judgment is proceeding pro se, the court “must consider as evidence . . . all of [that party's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the party] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
BACKGROUND
A. Allegations
In her second amended complaint, plaintiff alleges:
discrimination on the basis of race in a place of public accommodations brought pursuant to the provisions of Title II of the Civil Rights Act of 1964 Public Accommodations); 42 U.S. Code § 1983; Civil action for deprivation of rights; Retaliation; Breach of Fiduciary Duty; Civil Conspiracy; Fraud; Intentional Infliction of Emotional Distress; Elder Abuse. Plaintiff alleges that Defendants have engaged in, and continues to engage in, a pattern and practice of intentional and systemic discrimination on the basis of race against her. Defendants' discriminatory practices include, but are not limited to, discrimination in a place of public accommodations as alleged in this Complaint. Moreover, Plaintiff alleges that Defendants have engaged in, and continue to engage in, a pattern of breach of fiduciary duty and fraudulent concealment of Plaintiff's life-threatening medical condition.Second Amended Complaint (ECF #10) at ¶ 1.
Plaintiff further alleges that beginning in April 2018 she sought medical care at OHSU suffering from “acute and severe kidney failure, liver and gall bladder diseases, cancer, etc., ” and that the OHSU defendants intentionally discriminated against plaintiff on the basis of her Mexican race by denying appropriate screening and care. Id. at ¶¶ 13, 26, 28-30. Plaintiff alleges similar treatment at OHSU on April 20, 2018, April 29, 2018, January 3, 2020, January 8, 2020; as well as November 13, 2006, and November 27, 2006. Id. at ¶¶ 14-19, 31-32.
Plaintiff alleges that on June 22, 2018, defendant Thrapp of the Oregon Health Authority discriminated against plaintiff on the basis of her Mexican race by declining to properly investigate her complaint against OHSU. Id. at ¶ 23. Plaintiff similarly alleges that on January 14, 2019, defendant Eric Brown of the Oregon Medical Board, discriminated against plaintiff on the basis of her Mexican race by declining to properly investigate OHSU doctors Kornegay and Gomez. Id. at ¶ 24.
B. Prior Litigation
On October 24, 2011, plaintiff filed a complaint against OHSU, various doctors working at OHSU, as well as the Oregon Medical Board of Medical Examiners. Case No. 3:11-cv-1277-AA Complaint dated October 24, 2011. In that action, plaintiff alleged OHSU discriminated against her in 2005 and 2006 because of her Mexican American race and denied her adequate medical care. Upon review of plaintiff's application to proceed In Forma Pauperis, the Court noted deficiencies regarding the allegation supporting jurisdiction for her state law claims, that her federal claims were time-barred, and dismissed the complaint. Order of Dismissal dated November 18, 2011. Plaintiff appealed and the Ninth Circuit affirmed the dismissal.
In July 2012, plaintiff filed a similar action against a Vancouver, Washington clinic and individual providers alleging denial of adequate medical care on the basis of her race in 2009. Third Amended Complaint in Case No. CV12-5630-RBL in the Western District of Washington. The Washington Court granted summary judgment in favor of defendants and dismissed the complaint. Order Dated July 12, 2013. On appeal the Ninth Circuit affirmed.
The Washington Court concluded that “plaintiff has failed to make a sufficient showing on essential elements of her claims on which she has the burden of proof. Among other things, plaintiff has failed to submit competent medical evidence regarding her physical condition or that this condition was caused as a result of defendants' alleged negligence and/or discrimination. While plaintiff has repeated a number of allegations of negligence and discrimination, these allegations are conclusory and nonspecific and are not sufficient to defeat a motion for summary judgment.” Id. at pp. 4-5.
On August 14, 2012, plaintiff filed a complaint against Dr. Raymond Petrillo and the Northwest Renal Clinic alleging that defendants, in August 2010, deliberately misdiagnosed and denied adequate medical care resulting in permanent kidney failure because of her race in violation of the Civil Rights Act. Complaint in Case No. 3:12-cv-1472-ST. The Court dismissed the complaint on September 19, 2012, because the Northwest Renal Clinic was not a place of public accommodation for purposes of the Civil Rights Act. Order dated September 19, 2012. On Appeal, the Ninth Circuit affirmed the dismissal.
In October 2013, plaintiff filed another action in the Western District of Washington alleging PeaceHealth Southwest Medical Center and various doctors employed there “deliberately misdiagnosed and deliberately denied adequate medical care resulting in permanent kidney failure and failure of other internal organs and cancer.” See Amended Complaint at ¶ 12 in Case No. 3:13-cv-5873-RJB. Plaintiff further alleged defamatory statements were put in her medical records to prevent her from receiving adequate medical care and prevent her claims of medical malpractice. Id. Plaintiff alleged defendants denied her adequate treatment because of her disability and Mexican American race. Id. at ¶ 39. On May 23, 2014, the Washington Court granted summary judgment in favor of defendants finding that defendants presented expert medical evidence of the adequacy of care and lack of discriminatory intent and plaintiff's conclusory statements to the contrary were insufficient to defeat summary judgment. Order dated May 23, 2014 at p. 11, 13. 15. On appeal, the Ninth Circuit affirmed.
Also in October 2013, plaintiff filed an action against Legacy Good Samaritan Medical Center, Legacy Emmanuel Medical Center, and individual affiliated doctors alleging she “was deliberately discriminated against in a place of public accommodations because of her race and disability and was denied adequate medical care for treatment of her kidney failure, other internal organs failure, symptoms of cancer and nerve damage” related to medical care between October 2009 and April 2012. First Amended Complaint in Case No. 3:13-cv-1772-AC at ¶ 15. On November 7, 2014, the Court issued a Findings and Recommendation recommending granting summary judgment in favor of defendants due to the unrebutted expert medical evidence demonstrating plaintiff's medical care was appropriate and noting that plaintiff failed to produce any evidence suggesting she suffers from kidney failure, other organ failure, or cancer. Findings and Recommendation dated November 7, 2014 at pp. 12-13, adopted December 16, 2014. On appeal, the Ninth Circuit affirmed.
In May 2014, plaintiff filed an action against Adventist Medical Center and affiliated individual providers again alleging inadequate care predicated on race in Multnomah County Case No. 14CV5474. Declaration of Lindsey H. Duncan, Ex. 6 (ECF 38-6). The Court dismissed plaintiff's claims against one defendant for want of prosecution and granted summary judgment in favor of the remaining defendants. That decision was affirmed on appeal. Ramirez v. Adventist Med. Ctr., 273 Or.App. 821 (2015), rev. den., 358 Or. 611 (2016), cert. denied, 137 S.Ct. 74 (2016).
In May 2017, plaintiff filed an action against Adventist Medical Center and affiliated individual providers as well as the Oregon State Board of Nursing, the Oregon Department of Justice, the Oregon Health Authority, the Oregon Department of Health and Human Services, and Metro West Ambulance Service alleging:
Defendants have engaged in, and continue to engage in, a pattern and practice of intentional and systemic discrimination on the basis of race against her. Defendants' discriminatory practices include, but are not limited to, discrimination in a place of public accommodations as alleged in this Complaint. Moreover, Plaintiff alleges that Defendants have engaged in, and continue to engage in, a pattern of breach of fiduciary duty and fraudulent concealment of Plaintiff's life-threatening medical condition.Second Amended Complaint (ECF #10) in case No. 3:17-cv-831-SI) at ¶ 1.
The Court dismissed the claims against defendants after consideration of several dispositive motions. Order dated September 12, 2017 (dismissing State defendants based on the Eleventh Amendment); Order dated October 24, 2017 (dismissing Adventist defendants on claim preclusion based on the Multnomah County action and as time-barred); Order dated February 7, 2018 (granting summary judgment finding no facts upon which a reasonable juror could conclude there was violation of plaintiff's civil rights or in support of any other alleged violation); Order dated March 27, 2018 (finding no evidence that plaintiff was treated differently from other patients, refused service, or otherwise discriminated against because of, or on the basis of, her race or ethnicity and that plaintiff submitted no expert evidence that defendants violated the standard of care, or that any such violation caused plaintiff any injury). On appeal, the Ninth Circuit affirmed finding the appeal to be frivolous.
C. Care Provided in this Case
While plaintiff offers her own conclusory allegations of conspiracy to “cover-up worsening kidney failure, other internal organs diseases or failure, cancer and nerve damage, ” the admissible evidence in the record provided through defendants' experts reveals normal lab results and adequate care.
See Plaintiff's Opposition to OHSU Defendants' Motion for Summary Judgment (ECF #65) at p. 1. In addition, plaintiff asserts the State defendants “conspired to cover-up that Plaintiff has worsening kidney failure, other internal organ diseases or failure, cancer and nerve damage.” Plaintiff's Opposition to State Defendants' Motion for Summary Judgment (ECF #75) at p. 3.
During plaintiff's visits to OHSU on April 15 through May 6, 2018, physical exams, chart reviews, and lab tests revealed normal results (except for occasional slightly abnormal creatinine plasma, chloride plasma, and alkaline phosphate), lack of renal dysfunction or any other dysfunction, and refusal on plaintiff's part, at times, to submit to further exams or testing. See Declaration of Lindsey Duncan at Exs. 9, 10, 11, 12 (ECF #s 39-2, 39-3, 39-4, 39-5).
During visits to OHSU on January 3, 8, and 9, 2020, exams were again all found to be normal, and plaintiff again refused some exams. Declaration of Lindsey Duncan at Exs. 13, 14, 15 (ECF #s 39-6, 39-7, 39-8).
Plaintiff submitted internal grievances to OHSU on May 2, 2018, May 15, 2018, and May 30, 2018, which were acknowledged by OHSU. Declaration of Lindsey Duncan at Exs. 16, 17, 18, 19, 20 (EXF #s 39-9, 39-10, 39-11, 39-12, 39-13). On July 16, 2018, after investigating the complaints, OHSU determined that the care provided since 2010 was appropriate, plaintiff's lab results were normal, and that there were no findings of any active medical issue or progressing condition except hematuria (blood in urine). Declaration of Lindsey Duncan at ¶ 22 (ECF #39-15).
On July 31, 2018, plaintiff submitted a grievance to OHSU disagreeing with the above findings. Declaration of Lindsey Duncan at ¶ 23 (ECF # 39-16). On August 21, 2018, OHSU responded that after further review it affirmed its previous findings and was unable to substantiate any allegations of misconduct or discrimination. Id. at ¶ 25 (ECF #39-18). Plaintiff appealed these findings to the OHSU Appeals Administrator. Id. at Ex. 26 (ECF #39-19). On September 12, 2018, the appeals administrator explained the test results were not subject to interpretation and spoke for themselves and concluded there was no evidence of discrimination. Id. at Ex. 27 (ECF # 39-20).
Plaintiff asserts that the State defendants declined to investigate plaintiff's complaints against OHSU.
DISCUSSION
Plaintiff asserts claims against OHSU for: (1) violations of the Emergency Medical and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd; (2) violation of Or. Rev. Stat. 659A.403; (3) violations of 42 U.S.C. §§ 1981, 1983; and (4) intentional infliction of emotional distress (IIED). Plaintiff asserts claims against OHSU defendants Kornegay, Gomez, Hughes, Noble, Dew, Yodar, and Moawad alleging violation of her right to substantive due process under 42 U.S.C. § 1983, violation of Or. Rev. Stat. 659A.403, violation of 42 U.S.C. § 1981, breach of fiduciary duty, and intentional infliction of emotional distress. Against the State defendants, plaintiff asserts claims for violations of 42 U.S.C. § 1983 and intentional infliction of emotional distress. As noted above, plaintiff's claims are all predicated on an alleged vast conspiracy to cover-up serious lifethreatening medical conditions through misdiagnosis and misrepresentation of her medical record because of her race. Consequently, plaintiff also asserts a claim for civil conspiracy against most individual defendants.
In a supplemental response to the motions for summary judgment, plaintiff also asserts a claim under the Eighth Amendment. Beside the inapplicability of this constitutional provision to plaintiff's circumstances, it is not pleaded in the complaint and therefore plaintiff cannot raise it in summary judgment briefing.
A. Statute of Limitations
Federal courts refer to state law to determine the statute of limitations for claims brought under 42 U.S.C. § 1983. Harding v. Galceran, 889 F.2d 906, 907 (9th Cir. 1989). The forum state's personal injury statute of limitations is the applicable limitations period for Section 1983 claims. Id. In Oregon, that time period is two years. ORS 12.110(1); Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (“Oregon's two-year statute of limitation for personal injury actions applies to actions under 42 U.S.C. § 1983.”). A Section 1983 action is commenced when the complaint is filed. Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002).
For purposes of plaintiff's state common law claims, the applicable limitations period is also two years. Or. Rev. Stat. § 30.275(9) (“[A]n action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”).
Plaintiff initiated this action on January 27, 2020. Accordingly, any claims based on actions occurring prior to January 27, 2018 are time-barred. Moreover, the statute of limitations for claims under Or. Rev. Stat. 659A.403 is one year. Or. Rev. Stat. § 659A.875(4). Thus, any acts occurring prior to January 27, 2019 for purposes of this statutory claim are time-barred.
In addition, the state law claims in this case are governed by the Oregon Tort Claims Act which requires notice of claims within 180 days after the alleged loss or injury. Or. Rev. Stat. § 30.275(2)(b). Plaintiff submitted her tort claims notice to OHSU on October 15, 2018 related to care services provided on April 15, 18, 20, and 29, 2018. Declaration of Lindsey Duncan at ¶ 28 (ECF # 39-21). The pleading and proof of notice sufficient to satisfy the requirements of ORS 30.275 is a mandatory requirement and a condition precedent to recovery under the Oregon Tort Claims Act. Urban Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 40, 549 P.2d 657, 660 (1976). Accordingly, any state law claims against Drs. Kornegay and Gomez are barred because they provided care on April 15, 2018, more than 180 days prior October 15, 2018.
In addition, plaintiff's state law claims related to defendant Thrapp's alleged refusal to investigate allegations against OHSU occurred on June 22, 2018. Second Amended Complaint (ECF #10) at ¶ 23. The tort claims notice regarding defendant Thrapp was not received by the State until February 27, 2019. Declaration of Becky Hawkins (ECF #50) at Ex. 1. Accordingly, this claim is also barred for failure to provide timely notice. Plaintiff also failed to provide tort claim notice with respect to defendant Oregon Department of Justice, and thus all state law tort claims against it are barred.
B. Section 1983
1. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution bars citizens' suits against states in federal court. A state is immune from suit in federal court unless Congress has abrogated the state's immunity by appropriate federal legislation, or the state itself has waived it. Virginia Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the absence of consent, a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.”). Here, the state of Oregon has not waived sovereign immunity and consented to suit, and Congress has not abrogated state sovereign immunity for Section 1983 claims. See Braunstein v. Arizona Department of Transportation, 683 F.3d 1177, 1188 (9th Cir. 2012). Accordingly, the State and the Oregon Department of Justice are immune from any Section 1983 claims.
Moreover, a Section 1983 claim against a state or state agency is not allowed. Will v. Mich. Dept of State Police, 491 U.S. 58, 71 (1989).
2. Insufficient Facts to Support a Section 1983 Claim
Plaintiff asserts a “fundamental right to have safe medical care which meets the standard of care and does not necessarily place plaintiff in extreme danger of loss of life which is protected under the substantive liberty provisions of the 14th Amendment.” Plaintiff's Opposition to OHSU Defendants' Motion for Summary Judgment (ECF #65) at p. 6. Plaintiff also asserts the “OHSU defendants covered-up that plaintiff has kidney failure, liver and gallbladder disease or failure etc., and that OHSU defendants failed to follow policies, practices and procedures for treatment of kidney failure that requires hospitalization.” Id.
At best, plaintiff alleges negligent medical care. There are no allegations, much less evidentiary support, that any defendant placed plaintiff into a life-threatening position sufficient to trigger substantive due process protections. The allegations are that defendants failed to adequately treat an already existing condition adequately which are insufficient to demonstrate a constitutional injury. See Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (“Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.”).
Moreover, as noted above, plaintiff fails to present sufficient evidence beyond her own conjecture, that the level of care received was inadequate or that she even suffers from the now decades-long multiple organ failure. Plaintiff presents no evidence of significant abnormal lab or exam results or even medical opinion that the provided care was substandard. Plaintiff also fails to present evidence that the care was so grossly inadequate that it shocks the conscience thus raising the failure to provide care to one of constitutional magnitude. There is insufficient evidence to support a Section 1983 claim, based on substantive due process, against the OHSU defendants. Summary judgment should be granted on those claims.
In addition, plaintiff's claims that the State defendants failed to investigate also does not rise to the level of a constitutional injury. Cf. Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (Finding no instance where the courts have recognized inadequate investigation as sufficient to state a civil rights claim unless there was another recognized constitutional right involved). Plaintiff fails to provide sufficient evidence of a constitutional violation committed by the State defendants. Accordingly, the State defendants should be granted summary judgment as to the section 1983 claims against them.
To the extent plaintiff seeks to assert a violation of her right to equal protection, she presents no evidence of different treatment, by any defendant, provided to similarly situated comparator individuals of a race different than her own. Generally, to maintain an equal protection claim, a plaintiff must “show adverse treatment of individuals compared with other similarly situated individuals and that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Miner v. Clinton Cty., 541 F.3d 464, 474 (2d Cir.2008). To succeed on a class-of-one claim, a plaintiff must establish that (i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.” Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59-60 (2d Cir. 2010). Accordingly, to the extent plaintiff asserts an equal protection claim, summary judgment should be granted in favor of defendants.
3. Qualified Immunity
Even if plaintiff could produce evidence of a constitutional violation, defendants would be entitled to qualified immunity. Plaintiff cites no case law regarding a non-custodial patient receiving inadequate care or a failure to investigate that care to alert defendants to the unconstitutionality of their actions. See Hamby v. Hammond, 821 F.3d 1085, 1091 (9th Cir. 2016) (a plaintiff must prove that precedent at the time the officials acted would have made clear to them that their actions violated the Constitution). For this additional reason, the Court should grant summary judgment in favor of defendants as to the claims under section 1983.
C. Section 1981
Racial discrimination is prohibited in the making and enforcement of contracts. 42 U.S.C. § 1981. However, plaintiff presents no evidence of a contractual relationship or attempted contractual relationship with the OHSU defendants. Accordingly, summary judgment as to this claim should be granted in favor of the OHSU defendants.
Plaintiff's medical care is covered by Medicare through Regency Blue Cross Blue Shield and they contract with her medical providers.
D. Emergency Medical and Active Labor Act
The complaint itself establishes exams were conducted and lab tests performed when plaintiff presented at OHSU on multiple occasions unless she refused such exams and tests. The unrebutted medical evidence establishes plaintiff's exams and labs were normal indicating no serious medical issues requiring immediate treatment. Congress enacted EMTALA because it “was concerned that hospitals were ‘dumping' patients who were unable to pay, by either refusing to provide emergency medical treatment or transferring patients before their conditions were stabilized.” Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255 (9th Cir.1995). Thus, EMTALA prohibits hospitals from refusing essential emergency care after determining such is required. There is insufficient evidence in the record to demonstrate plaintiff had an emergency medical condition determined by OHSU after an appropriate screening and that OHSU subsequently refused service. Accordingly, the Court should grant summary judgment as to this claim. See James v. Sunrise Hosp., 86 F.3d 885 (9th Cir. 1996) (EMTALA applies only when an individual comes to an emergency room, and, after appropriate medical screening examination, the hospital determines that individual has an emergency medical condition). Accordingly, summary judgment should be granted in favor of OHSU on this claim.
Or. Rev. Stat. § 659A.403 prohibits discrimination in places of public accommodation. As noted above, plaintiff has not rebutted the evidence of adequate medical care and has not presented evidence that she received disparate treatment. The Court should grant summary judgment in favor of the OHSU defendants on this claim.
F. Breach of Fiduciary Duty
Regardless of whether any defendants owed plaintiff a special duty regarding her medical care, plaintiff fails to prevent evidence of a breach of any duty to provide such care. Plaintiff provides no evidence the medical providers misdiagnosed her condition and thus failed to provide adequate treatment. Accordingly, the Court should grant summary judgment in favor of the OHSU defendants as to this claim.
G. Intentional Infliction of Emotional Distress
An IIED claim requires plaintiff to prove three elements: (1) that defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress; (2) that defendants engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe emotional distress. McGanty v. Staudenraus, 321 Or. 532, 543, 550, 901 P.2d 841 (1995). Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be considered on a case-by-case basis, based on the totality of the circumstances. Courts consider whether the offensiveness of the conduct “exceeds any reasonable limit of social toleration which is a judgment of social standards rather than of specific occurrences.” House v. Hicks, 218 Or.App. 348, 358-59, 179 P.3d 730, 736 (2008).
Again, as noted above, the medical evidence in this case fails to establish inadequate treatment. Under the totality of the circumstances the conduct of the OHSU defendants in treating plaintiff and the conduct of the State defendants in investigating the complaints against OHSU simply does not rise to the level of an extraordinary transgression beyond the bounds of socially tolerable conduct as a matter of law. Accordingly, the Court should grant summary judgment in favor of all defendants as to this claim.
Plaintiff asserts, without support, the State defendants “submitted declarations in bad faith and fabricated evidence against plaintiff and stigmatized plaintiff to unduly influence the Court to dismiss plaintiff's complaint.” Plaintiff's Opposition to State Defendants' Motion for Summary Judgment (ECF #75) at p. 5. The Court should decline to find any violation of Fed.R.Civ.P. 56(h) as there is no evidence to support bad faith.
I. Amend
Plaintiff requests the Court grant her request to file a motion for leave to amend. At this stage, after discovery has closed, and plaintiff has failed to adduce adequate evidence to support any of her claims, the Court should decline to permit further amendment at this late stage of the litigation.
CONCLUSION
The OHSU defendants' motion for summary judgment (ECF #37) should be granted. The State defendants' motion for summary judgment (ECF #48) should be granted. All named defendants should be dismissed. In addition, the deadline for serving defendants under Fed.R.Civ.P. 4(m) has passed. Accordingly, the Court should also dismiss the Doe defendants and a judgment should be entered.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.