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Grant v. Alperovich

United States District Court, W.D. Washington, Seattle

April 2, 2014



ROBERT S. LASNIK, District Judge.


This matter comes before the Court on "Defendant Michele Pulling, M.D.'s Motion for Summary Judgment." Dkt. # 201. 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:


A. Background Facts

In June 2009, Plaintiff underwent gastric bypass surgery without complication at St. Francis Hospital in Federal Way, Washington. Dkt. # 3-1 at 10. Shortly after surgery, she was treated for an esophageal yeast infection with two prescription antifungal medications. Id. at 6. During the months following surgery, Plaintiff saw several doctors and was hospitalized for concerns related to dehydration, id., nausea, and vomiting, id. at 10. An endoscopy in July 2009 revealed a hernia, but no evidence of an oral yeast infection. Dkt. # 3-1 at 7.

In October 2009, Dr. Michele Pulling prescribed an antidepressant for Plaintiff to reduce the spasms in her esophagus to help it heal. See Dkt. # 3-2 at 6, 9. Plaintiff contends that Dr. Pulling misrepresented the purpose of the medication. Specifically, she claims that Dr. Pulling told her the medicine would relax her throat muscles, even though, according to Plaintiff, Dr. Pulling merely wanted Plaintiff to take an antidepressant. Dkt. # 62 at 10-11. Plaintiff alleges that Dr. Pulling's conduct 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 of 1964; (3) the Age Discrimination Act of 1975; and (4) the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). 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, and claims of libel, slander, defamation, and health care fraud. Dkt. # 62.

B. Plaintiff's Request for Continuance

As a preliminary matter, Plaintiff presents a vague request to deny Defendant's motion or delay ruling on it so that she may have an opportunity to conduct discovery related to her claims. See Dkt. # 204 at 5, 12. Rule 56(d) allows a party opposing a motion for summary judgment to request a continuance to conduct additional discovery to support her opposition. Fed.R.Civ.P. 56(d). However, "[a] party requesting a continuance pursuant to Rule 56([d]) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City & Cnty. of San Francisco , 441 F.3d 1090, 1100 (9th Cir. 2006). "The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists and that it would prevent summary judgment." Nidds v. Schindler Elevator Corp. , 113 F.3d 912, 921 (9th Cir. 1996) (internal citations omitted). Plaintiff has not met this burden.

Plaintiff's request to conduct discovery does not identify the particular facts she seeks to uncover, whether the information exists, or whether the facts would be sufficient to defeat summary judgment. For example, Plaintiff asserts generally that she "has a right to get answers through legal discovery investigations and depositions from this State Agent acting in her duty." Dkt. # 204 at 5. Similarly, she argues that "[s]ummary judgment should not ordinarily be granted before the completion of discovery, especially in cases involving constitutional and civil rights claims." Id. at 12. These statements are insufficient to satisfy her burden under Fed.R.Civ.P. 56(d) and therefore, her request for a continuance is DENIED.

C. Claims Under the Civil Rights Act of 1964

1. 42 U.S.C. § 1983

To establish a §1983 claim Plaintiff must show (1) the deprivation of a right protected by the Constitution or a federal statute, and (2) that the deprivation was committed by a person acting under color of state law. Chudacoff v. Univ. Med. Center of S. Nevada , 649 F.3d 1143, 1149 (9th Cir. 2011). Dr. Pulling contends that Plaintiff ...

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