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Grant v. Alperovich

United States District Court, Ninth Circuit

December 10, 2013



ROBERT S. LASNIK, District Judge.


This matter comes before the Court on "Defendant Michael K. Hori, M.D.'s Motion for Summary Judgment Dismissal." Dkt. # 50. Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact that would preclude the entry of judgment as a matter of law. L.A. Printex Indus., Inc. v. Aeropostale, Inc. , 676 F.3d 841, 846 (9th Cir. 2012). The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion" ( Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986)) and identifying those portions of the materials in the record that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)(1)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to identify specific factual disputes that must be resolved at trial. Hexcel Corp. v. Ineos Polymers, Inc. , 681 F.3d 1055, 1059 (9th Cir. 2012). The mere existence of a scintilla of evidence in support of the non-moving party's position will not preclude summary judgment, however, unless a reasonable jury viewing the evidence in the light most favorable to the non-moving party could return a verdict in its favor. United States v. Arango , 670 F.3d 988, 992 (9th Cir. 2012).

Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows:[1]


A. Background Facts

In June 2009, Plaintiff underwent gastric bypass surgery. Dkt. # 50-1 at 10. Shortly after her surgery, Plaintiff was treated for an esophageal yeast infection with two prescription antifungal medications. Id. at 7, 10. In the following six weeks, Plaintiff sought care for nausea, vomiting, and abdominal pain several times. Id. at 10. She made several trips to the emergency room and was admitted at St. Francis Hospital for treatment related to these symptoms. Id. at 4. Even though an endoscopy revealed no indication of an ongoing esophageal yeast infection, Plaintiff remained concerned that this yeast infection was causing her pain. Id. at 7-8, 10.

After Plaintiff was hospitalized a second time with complaints of nausea and vomiting, the surgeon who performed the gastric bypass, Defendant Dr. Claudio Alperovich, asked Dr. Hori to provide an infectious disease consultation. Id. at 10. Dr. Hori performed a physical examination of Plaintiff on August 2, 2009. Id. at 11. During his exam, he noted the presence of a hematoma, but found no signs of an infection. Id. at 10. Nevertheless, Dr. Hori recommended blood and urine tests to rule out any possibility of infection. Id . In his report, Dr. Hori explained that even though there were no signs of an ongoing infection, "the patient is thoroughly convinced that this is the case, and a rational discussion could not dissuade her at this point, and I doubt it ever will." Id . Dr. Hori examined Plaintiff again two days later and concluded that there was no evidence of an invasive infection, but an infection could not be ruled out definitively. Id. at 13. Based on this conclusion, he prescribed additional antifungal medicine.

B. Procedural History

On June 15, 2012, Plaintiff sued Dr. Hori and the other named defendants for negligence and medical malpractice in King County Superior Court. Dkt. # 53-1 at 4-14. The state court granted Dr. Hori's motion for summary judgment on November 9, 2012. Dkt. # 50-1 at 15-16.

Plaintiff filed this lawsuit against defendants the same day that she filed her state court action. Dkt. # 1. On February 21, 2013, all but two defendants filed dispositive motions in this case. Dkt. # 50; Dkt. # 53, Dkt. # 54, Dkt. # 55, Dkt. # 59, Dkt. # 61. Recognizing that "[r]esponding to six dispositive motions on the same day would be a daunting task for a licensed attorney, much less a plaintiff appearing pro se, " the Court granted Plaintiff's request for additional time in which to respond to the motions and renoted defendants' dispositive motions. Dkt. # 82.

One week after defendants filed their dispositive motions, Plaintiff sought leave to file a third amended complaint. Dkt. # 62. In her third amended complaint, Plaintiff asserts that defendants violated (1) Title II and Title III of the Americans with Disabilities Act ("ADA"); (2) Title II, Title VI, and Title XI of the Civil Rights Act; (3) the Age Discrimination Act of 1975; (4) the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"); and (5) the Mental Health Bill of Rights, 42 U.S.C. § 9501. Id. at 3-4. Under the liberal pleading standard afforded pro se plaintiffs, Haines v. Kerner , 404 U.S. 519, 520-21 (1972), Plaintiff's third amended complaint also appears to assert claims under 42 U.S.C. § 1983, 42 U.S.C. § 1985, as well as claims of libel, slander, defamation, and health care fraud. Dkt. # 62. The Court granted Plaintiff's motion to amend in part, accepting Plaintiff's third amended complaint as the operative pleading, but dismissing the claim asserted under the Mental Health Bill of Rights. Dkt. # 92 at 2-3.

C. Civil Rights Act

Defendant argues that Plaintiff's claim under 42 U.S.C. § 1983 must be dismissed because there is no evidence of state action. Dkt. # 50 at 7. The Court agrees. To prevail on a §1983 claim Plaintiff must show that she suffered a violation of rights protected by the Constitution or created by federal statute and that the violation was proximately caused by a person acting under color of state law. Crumpton v. Gates , 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff has not shown that Dr. Hori was acting under color of ...

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