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Ramirez v. Hart

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

May 23, 2014

MARICELA RAMIREZ, Plaintiff,
v.
JOHN L HART, PEACEHEALTH SOUTHWEST MEDICAL CENTER, SO YUN PARK GRACE, JOY ERICKSON, SOUTHWEST MEDICAL GROUP — FISHER'S LANDING, DOES 1-100, Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the court on Defendants' Motion for Summary Judgment. Dkt. 28. The court has reviewed the relevant documents and the remainder of the file herein.

PROCEDURAL HISTORY

On October 2, 2013, plaintiff filed a civil complaint against Dr. John L. Hart, D.O.; Peacehealth Southwest Medical Center aka Southwest Washington Medical Center; So Yun Park Grace, M.D.; Joy Erickson, P.A.; Southwest Medical Group-Fisher's Landing aka Peacehealth Medical Group, and Does 1 to 100, inclusive. Dkt. 1-1, Dkt. 3. On November 27, 2013, plaintiff filed a First Amended Complaint for Damages. Dkt. 9. The complaint alleges claims against defendants for (1) medical malpractice, by failing to diagnose and treat her kidney disease, other internal organ failure and gastro esophageal reflux disease; (2) discrimination in a place of public accommodation, in violation of Title II and Title VII of the Civil Rights Act of 1964, on the basis of her Mexican-American ethnicity, by denying her adequate medical care; and (3) discrimination on the basis of disability under the Americans with Disabilities Act and the Rehabilitation Act by denying her adequate medical care. Dkt. 9.

MOTION FOR SUMMARY JUDGMENT

On April 28, 2014, defendants filed a motion for summary judgment, contending that (1) most of plaintiff's medical malpractice claims are time barred by the three-year statute of limitations of RCW 4.16.350(3); and that plaintiff's medical treatment met applicable standards of care and was not a proximate cause of plaintiff's alleged injuries; (3) any claim under Title VII of the Civil Rights Act is time barred; plaintiff was not in an employment relationship with defendants; she had not met the notice requirement of such a claim; and her claim for monetary damages is not available under Title VII; (4) any claim under the Title II of the Civil Rights Act is without merit because there is no admissible evidence that defendants discriminated against plaintiff based on her Mexican-American race or ethnicity; (5) any claim under Section 504 of the Rehabilitation Act should be dismissed because most of the claim is time barred by the three year statute of limitations period of RCW 4.16.080(2); such a claim cannot be brought against individual defendants; and there is no evidence that defendants intentionally or with deliberate indifference discriminated against plaintiff based on her alleged disability; and (6) any claim for discrimination under the ADA is without merit because most of the claim is time barred by the three year statute of limitations period of RCW 4.16.080(2); monetary damages is not a available under Title III of the ADA; and there is no admissible evidence that defendants discriminated against plaintiff because of her disability. Dkt. 28. Defendants request that the court award costs, disbursements, and attorney's fees incurred in connection with plaintiff's federal claims under 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 2000a-3(b), 29 U.S.C. § 794a(b) an 42 U.S.C. § 12205. Dkt. 28, at 19.

On April 29, 2014, the court issued a Notice, informing plaintiff of the requirements to respond to a motion for summary judgment. Dkt. 32. In that Notice, the court informed plaintiff that defendants were requesting attorney's fees in connection with their motion for summary judgment, and plaintiff was advised that she should address this issue in her response to the motion for summary judgment. Dkt. 32.

On May 16, 2014, plaintiff filed a response to defendants' motion for summary judgment. Dkt. 34. Plaintiff first requests that the court deny, defer, or continue defendants' motion for summary judgment until discovery has been completed. Dkt. 34, at 1-2. Plaintiff further argues that (1) this motion is premature and that expert testimony is not required because defendants' gross deviation from ordinary care is easily recognized; (2) defendants are jointly and severally liable for causing plaintiff's kidney failure, failure of other internal organs, and cancer; (3) the claims for discrimination in a place of public accommodation have merit, apparently because 42 U.S.C. § 1981 and 42 U.S.C. § 1983 prohibit discrimination; and (4) she is entitled to equitable tolling of the statute of limitations in regard to the medical malpractice claims because of fraud and intentional concealment. Plaintiff also objects to results of blood tests and medical records from various health care providers (Dkt. 34, at 14-6) and to defendants' expert witness evidence (Dkt. 34, at 16-17). Plaintiff contends that she is not a serial litigator. "Plaintiff objects to Defendants' statement that Plaintiff is a serial litigator. Plaintiff is not a serial litigator. Plaintiff is a person of integrity and filed lawsuits against Defendants and other health care providers to bring them to justice for the ongoing physical and psychological harm that they caused her and for defaming her character. Moreover, Plaintiff has never been compensated for her internal organs damages and for cancer damages." Dkt. 34, at 17. In support of her opposition, plaintiff filed various documents related to her complaint to the Washington Human Rights Commission and to her medical care. Dkt. 34-1.

On May 22, 2014, defendants filed a reply, contending that plaintiff has not met the standard under Fed.R.Civ.P. 56(d) to deny, defer, or continue the motion for summary judgment; plaintiff has not provided expert testimony in support of her medical malpractice claim; there is no admissible evidence to support plaintiff's claims for discrimination based upon her race or alleged disability; the majority of plaintiff's claims are time-barred; and plaintiff should not be permitted to amend her claims under 42 U.S.C. §§ 1981 and 1983. Dkt. 36.

LEGAL STANDARD

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at triale.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra ). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

If defendants raise an issue, based upon the pleadings, the burden shifted to plaintiff to make a sufficient showing on all essential elements of plaintiff's claim, on which plaintiff has the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 323-325 (burden of moving party in summary judgment motion may be met by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case; once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial). In so doing, the nonmoving party must rely exclusively on admissible evidence to establish such specific facts in opposition to the moving party's motion. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). Plaintiff's own self-serving statements, conclusions, and opinions are insufficient to defeat a motion for summary judgment. See Fed.R.Civ.P. 56(e)(2); Coverdell v. Dept. of Social & Health Svcs., 834 F.2d 758, 769 (9th Cir. 1987); CR 56(e), Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-61, 753 P.2d 517 (1988).

REQUEST PURSUANT TO FED.R.CIV.P. 56(d)

Plaintiff has requested that the court deny, defer, or continue defendants' motion for summary judgment until discovery has been completed. Dkt. 34, at 1-2. Plaintiff contends that, as a result of a conspiracy planned by defendants, she has been unable to complete discovery; and that "as a result of the unlawful and unethical tactics planned by Defendants to make impossible for Plaintiff to obtain diagnosis for her kidney failure, other internal organs failure and cancer, Plaintiff has been unable to complete discovery." Dkt. 34, at 2.

Fed.R.Civ.P. 56(d) provides as follows:

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.

A party requesting a continuance, denial, or other order under Rule 56(d) must demonstrate: (1) it has set forth in affidavit form the specific facts it hopes to elicit from further discovery; (2) the facts sought exist; and (3) the sought-after facts are essential to oppose summary judgment. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008); California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The rule requires (a) a timely application which (b) specifically identifies (c) relevant information, (d) where there is some basis for believing that the information sought actually exists. Employers Teamsters Local Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004). 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. Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n. 6 (9th Cir. 2001); Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). The movant "must make clear what information is sought and how it would preclude summary judgment." Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998). Denial of a Rule 56(d) application is proper where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation. State of Cal., on Behalf of California Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779-80 (9th Cir. 1998). Failing to meet this burden is grounds for the denial of a Rule 56(d) motion. Pfingston v. Ronan Eng. Co., 284 F.3d 999, 1005 (9th Cir. 2002).

Plaintiff has not met the standard to support her request that the court deny, defer, or continue defendants' motion for summary judgment until discovery has been completed. Plaintiff's conclusory statements regarding a conspiracy, and unlawful and unethical tactics are not sufficient to meet her burden under Fed.R.Civ.P. 56(d).

Plaintiff's request that the court deny, defer, or continue defendants' motion for summary judgment until discovery has been completed should be denied.

DISCUSSION

When a plaintiff proceeds pro se, the district court is required to afford plaintiff the benefit of any doubt in ascertaining what claims plaintiff raised in the complaint and argued to the district court. Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008), citing Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001); see also Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988)(pleadings of pro se civil rights plaintiff to be construed liberally, affording plaintiff benefit of any doubt). In this case, the court has construed the complaint liberally in an attempt to interpret the claims that plaintiff is bringing and the factual basis for any such claims. It appears that plaintiff is alleging federal question jurisdiction pursuant to the following provision of the first amended complaint:

SECOND CAUSE OF ACTION-DISCRIMINATION IN A PLACE OF PUBLIC ACCOMMODATION ON THE BASIS OF RACE AND DISABILITY

(For Discrimination in a Place of Public Accommodations on the basis of race under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e and following) against Defendants JOHN HART, D.O., SO YUN PARK GRACE, M.D. AND JOY ERICKSON, P.A. For Discrimination in a Place of Public Accommodations on the basis of disability under Section 504 of the Rehabilitation Act, 29, [sic] U.S.C. § 794(a) and under Americans with Disabilities Act, U.S.C. § 12101 et seq. ) against Defendants JOHN HART, D.O. SO YUN PARK GRACE, M.D. AND JOY ERICKSON, P.A.)

Dkt.9, at 18. The court will analyze plaintiff's claims under Titles II and VI of the Civil Rights Act of 1964, and claims under the Americans with Disabilities Act and the Rehabilitation Act.

1. Discrimination under Title VII of Civil Rights Act of 1964

Plaintiff apparently alleges that defendants violated Title VII of the Civil Rights Act by discriminating against her on the basis of race or ethnicity when they failed to diagnose and treat her kidney disease, other internal organ failure and gastro esophageal reflux disease. The factual allegations involve plaintiff's medical treatment from 2006 until October 15, 2010. Dkt. 9. The complaint states that "[i]n March 2012, Plaintiff started suffering of [sic] symptoms of esophageal cancer and head cancer, which has caused her more severe pain and worsened her condition and her disability." Dkt. 9, at 11.

Under Title VII of the Civil Rights Act of 1964, it is unlawful "for an employer- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §2000e-2(a)(1).

Time Limit. To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir.2002). Under Title VII, a plaintiff must exhaust administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge. 42 U.S.C. § 2000e-5(b); see also B.K.B., 276 F.3d at 1099. Title VII contains a maximum 300day statute of limitations. See 42 U.S.C. § 2000e-5(e)(1)(requiring filing of a charge with the Equal Employment Opportunity Commission within 300 days after the alleged unlawful employment practice occurred, if the aggrieved person initially instituted proceedings with a state or local authority). Even assuming that plaintiff filed a timely charge with the EEOC or the appropriate state entity, and even if she somehow alleged an unlawful employment practice, she did not file this action within the 300 days set forth by statute. Plaintiff has not set forth an adequate basis for equitable tolling of the time period. The claim is subject to dismissal on this basis alone.

Failure to State a Claim. Even more significant, however, is that plaintiff's claim of discrimination under Title VII fails to state a claim. This complaint relates to medical care, not to employment. Plaintiff's Title VII claims should be dismissed.

2. Discrimination under Title II of Civil Rights Act of 1964

Plaintiff apparently alleges that defendants violated Title II of the Civil Rights Act by discriminating against her on the basis of race or ethnicity when they failed to diagnose and treat her kidney disease, other internal organ failure and gastro esophageal reflux disease.

Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, provides as follows:

All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

42 U.S.C. § 2000a(a).

Notice. The enforcement provision of Title II contains a notice provision, which prohibits a plaintiff from bringing a civil action "before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority, " if such state has a law "prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice." 42 U.S.C. § 2000a-3(c).

The State of Washington has a law prohibiting discrimination based on race in places of public accommodation, and the Washington Human Rights Commission has authority to grant relief from such discrimination. See RCW 49.60.030(1)(b); RCW 49.60.120(4); RCW 49.60.215(1); RCW 49.60.230. Because there is a Washington state law prohibiting racial discrimination in places of public accommodation and an agency authorized to grant relief for such conduct, a plaintiff bringing a civil action for a Title II claim of racial discrimination in the State of Washington must first file written notice with the Washington Human Rights Commission at least thirty days before brining any action in federal court. Defendants contend that plaintiff failed to allege that she provided the required notice before filing suit. In support of her response, plaintiff submitted a copy of a December 28, 2010 complaint to the Washington State Human Rights Commission, alleging that she was discriminated against because of her national origin. Dkt. 34-1, at 3. Assuming that plaintiff properly filed a complaint with the Washington Human Rights Commission, her Title II claim should not be dismissed on the basis that she failed to provide the required notice.

Money Damages. Plaintiff's first amended complaint requests damages and "such further and other relief as this court deems just and proper." Dkt. 9, at 22.

Title II recognizes a private cause of action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other such order. 42 U.S.C.§ 2000a-3(a). Title II does not provide for a private right of action for money damages. See Grant v. Alperovich, 2014 WL 1317611, at *2 (W.D. Wash. March 27, 2014).

Plaintiff has requested damages for alleged violation of her rights. Such a claim is not cognizable under Title II, and the claim should be dismissed.

Evidence of Discrimination. The court has reached this issue as an alternative basis for dismissing the claim.

Defendants have provided an expert opinion of David R. Ruiz, M.D., who reviewed the medical records and determined that there was no evidence that defendants "denied Ms. Ramirez adequate medical care or mistreated her because of her Mexican-American race or her alleged disability." Dkt. 30, at 3. Defendants have raised an issue regarding this claim; the burden shifted to plaintiff to make a sufficient showing on all essential elements of her claim, on which she has the burden of proof. Plaintiff has provided evidence that she is a member of a protected class based upon her Mexican-American ethnicity. Plaintiff has not provided evidence that she was discriminated against in a place of public accommodation on account of her race or ethnicity. Her conclusory statement that she was discriminated against on the basis of her race or ethnicity is insufficient to raise an issue of fact regarding this claim. The Title II Civil Rights claim should be dismissed because plaintiff has not supported her claim by any competent evidence. See Fed.R.Civ.P. 56(c)(1).

For the above reasons, the Title II claim should be dismissed.

4. Section 504 of Rehabilitation Act

Plaintiff apparently claims that defendants discriminated against her on the basis of her disability by denying her medical care.

Rehabilitation Act § 504 forbids organizations that receive federal funding, including public schools, from discriminating against people with disabilities. 29 U.S.C. § 794(b)(2)(B); Mark H., 513 F.3d at 929; Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th Cir.2002). Section 504 provides that "no otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a); see also 34 C.F.R. § 104.4. If an organization that receives federal funds violates Rehabilitation Act § 504 intentionally or with deliberate indifference, it may be liable for compensatory damages. See Mark H., 513 F.3d at 930, 938.

Statute of Limitations. The statute of limitations for a claim under the Rehabilitation Act is provided by analogous state law. Douglas v. Cal. Dept. of Youth Auth., 271 F.3d 812, 823 n. 11 (9th Cir. 2001). A claim under the Washington Law Against Discrimination, which prohibits disability discrimination, must be brought within three years under the general statute of limitations for personal injury actions in RCW 4.16.080(2). Antonius v. King County, 153 Wn.2d 256, 262 (2004).

Plaintiff's Rehabilitation Act claim concerns the same conduct that underlies her medical malpractice claim. The Rehabilitation Act claim was not filed within the three year period of limitations. Plaintiff has not forth sufficient basis for equitable tolling. With the exception of alleged contact by Dr. Park Grace and Ms. Erickson on October 15, 2010, the Rehabilitation Act claims are barred by the statute of limitations.

Claims Against Individual Defendants. Regarding the claims against Dr. Park Grace and Ms. Erickson for their conduct on October 15, 2010, those claims should be dismissed because Section 504 of the Rehabilitation Act does not provide for suits against individual defendants in their individual capacities. Chester v. University of Washington, 2012 WL 3599351, at *4 (W.D. Wash. August 21, 2012).

Evidence of Discrimination. The court has reached this issue as an alternative basis for dismissing the claim. Defendants have provided an expert opinion of David R. Ruiz, M.D., who reviewed the medical records and determined that there was no evidence that defendants "denied Ms. Ramirez adequate medical care or mistreated her because of her Mexican-American race or her alleged disability." Dkt. 30, at 3. Defendants have raised an issue regarding this claim; the burden shifted to plaintiff to make a sufficient showing on all essential elements of plaintiff's claim, on which plaintiff has the burden of proof. Plaintiff has not provided evidence in support of this claim. The Section 504 Rehabilitation Act claim should be dismissed because plaintiff has not supported her claim by any competent evidence. See Fed.R.Civ.P. 56(c)(1).

5. Americans with Disabilities Act

Plaintiff apparently claims that defendants discriminated against her on the basis of her disability by denying her medical care.

42 U.S.C. § 12182(a) provides in relevant part that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."

Statute of Limitations. The statute of limitations for a claim under the Americans with Disabilities Act is provided by analogous state law. See Wilson v. Garcia 471 U.S. 261, 266-67 (1985); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 n. 2 (9th Cir. 2002). A claim under the Washington Law Against Discrimination, which prohibits disability discrimination, must be brought within three years under the general statute of limitations for personal injury actions in RCW 4.16.080(2). Antonius v. King County, 153 Wn.2d at 262.

Plaintiff's Americans with Disabilities Act claim concerns the same conduct that underlies her medical malpractice claim. Plaintiff has not shown that she is entitled to equitable tolling. With the exception of alleged contact by Dr. Park Grace and Ms. Erickson on October 15, 2010, all of the Rehabilitation Act claims are barred by the statute of limitations, and should, accordingly, be dismissed.

Money Damages. Plaintiff's first amended complaint requests damages and "such further and other relief as this court deems just and proper." Dkt. 9, at 22.

Title III of the ADA only recognizes a private cause of action for preventive relief, including application for a permanent or temporary injunction, restraining order, or other such order. 42 U.S.C. § 12188(a)(1); 42 U.S.C.§ 2000a-3(a). Title III does not provide for a private right of action for money damages. See Molski v. M.J. Cable, Inc., 481 F.3d 724, 730(9th Cir. 2007)("Monetary damages are not available in private suits under Title III of the ADA").

Plaintiff has requested damages for alleged violation of her rights. Such a claim is not cognizable under Title III of the ADA, and the claim should be dismissed.

Evidence of Discrimination. The court has reached this issue as an alternative basis for dismissal of the claim. Under Title II of the ADA, a plaintiff must show that: (1) he or she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of plaintiff's disability. Arizona ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666, 670 (9th Cir. 2010).

Defendants have provided an expert opinion of David R. Ruiz, M.D., who reviewed the medical records and determined that there was no evidence that defendants "denied Ms. Ramirez adequate medical care or mistreated her because of her Mexican-American race or her alleged disability." Dkt. 30, at 3. Defendants have raised an issue regarding this claim; the burden shifted to plaintiff to make a sufficient showing on all essential elements of plaintiff's claim, on which plaintiff has the burden of proof. Plaintiff has not provided evidence in support of this claim. The ADA claim should be dismissed because plaintiff has not supported her claim by any competent evidence. See Fed.R.Civ.P. 56(c)(1).

6. Medical Malpractice

Defendants contend that plaintiff's medical malpractice claim is barred to the extent that it is based on conduct that occurred before October 2, 2010; and that defendants' medical treatment of plaintiff met the applicable standards of care and was not a proximate cause of any of plaintiff's alleged injuries. Dkt. 28, at 8-9.

Plaintiff claims that defendants committed medical malpractice, by failing to diagnose and treat her kidney disease, other internal organ failure and gastro esophageal reflux disease. This cause of action for medical malpractice is governed by Washington law. See Paulson v. CNF, Inc., 559 F.3d 1061, 1080 (9th Cir. 2009)(applying state law to professional negligence claim); Bass v. First P. Networks, Inc., 219 F.3d 1052, 1055 n. 2 (9th Cir. 2000)("[A] federal court exercising supplemental jurisdiction over state law claims is bound to apply the law of the forum state to the same extent as if it were exercising its diversity jurisdiction.").

Under 28 U.S.C. § 1367, a federal court may assume supplemental jurisdiction over all other claims that are so related to claims in the action within the original jurisdiction so that they form part of the same case or controversy. The Court may decline to exercise this supplemental jurisdiction if (1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c).

The claims in this case raise issues of state law that substantially predominate over the claims over which this court has original jurisdiction. In fact, the claims plaintiff pled to support federal question jurisdiction are frivolous and without merit. Those claims are dismissed by this order. The court should decline to exercise supplemental jurisdiction over plaintiff's state law claims, and should dismiss those claims without prejudice.

7. Potential Claims

In her response to the motion for summary judgment, plaintiff referenced 42 U.S.C. § 1981 and 42 U.S.C. § 1983. To the extent plaintiff intends to plead claims under those provisions, any such claims are without merit. There is no factual basis supporting those claims; defendants are not state actors for purposes of Section 1983; and any such claims would be barred by the applicable three year statute of limitations. See Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987) and RCW 4.16.080(2). To the extent that plaintiff intends to plead claims under these provisions, those claims should be dismissed.

8. Attorney's Fees

In their motion for summary judgment, defendants requested attorney's fees incurred in defense of plaintiff's federal claims: 42 U.S.C. § 2000e-5(k), 42 U.S.C. § 2000a-3(b), 29 U.S.C. § 794a(b), and 42 U.S.C. § 12205. Dkt. 28, at 19. Plaintiff was informed that she should address this request in her response to the motion for summary judgment. In her response, plaintiff maintains that she is not a serial litigator; that she filed lawsuits against defendants and other health care providers to bring them to justice for the ongoing physical and psychological harm that they caused her and for defaming her character; and that she believes she should be compensated for the damage caused by defendants.

In civil rights cases, a district court may award attorney's fees to a prevailing defendant only in exceptional circumstances where the plaintiff's claims are frivolous, unreasonable, or groundless. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 418-22 (1978). A fee-shifting provision is distinguishable from a sanction. See Chambers v. NASCO, Inc., 501 U.S. 32, 52-53 (1991)(distinguishing fee-shifting rules from sanctions by stating that fee-shifting rules "embody a substantive policy, such as a statute which permits a prevailing party in certain classes of litigation to recover fees, " whereas sanctions are not outcome dependent).

Defendants have submitted information from other cases plaintiff has filed in federal court, against other medical providers, alleging substantially the same malpractice claims, and essentially the same claims upon which federal jurisdiction is based: Ramirez v. Orfali, et al, District of Oregon Case No. 11cv1277AA (Oregon defendants; dismissed); Ramirez v. Chow, et al, Western District of Washington, Case No. C12-5630RBL/JRC (Washington defendants; dismissed; affirmed by Ninth Circuit ); Ramirez v. Petrillo, et al, District of Oregon Case No. 12cv1472ST (Oregon defendants; dismissed; affirmed by Ninth Circuit); Ramirez v Parker, District of Oregon Case No. 13cv1772AC (Oregon defendants; pending).

The claims upon which federal jurisdiction is based in this case are substantially the same as those plaintiff pled in prior cases, and which were dismissed. Plaintiff's claims under the Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act are frivolous and fail to state a claim.

The court will exercise its discretion to deny defendants' request for attorney's fees in this case. The court has carefully analyzed the claims upon which plaintiff bases federal court jurisdiction. Plaintiff should be aware that, if she continues to file cases that assert federal question jurisdiction under 28 U.S.C. § 1331, based upon the same claims that this court has rejected, she may be subject to an award of costs and attorney's fees under the relevant statutes, and/or she may be subject to sanctions under Fed.R.Civ.P. 11.

8. Additional Considerations

Plaintiff initially filed a request to proceed in forma pauperis; the court denied that request and plaintiff paid the filing fee. In the event that plaintiff files an appeal in this case with the Ninth Circuit, and in the event that plaintiff requests to proceed in forma pauperis on appeal, the court should deny plaintiff's request to proceed in forma pauperis on appeal, without prejudice to plaintiff to file with the Ninth Circuit a request to proceed in forma pauperis.

Accordingly, it is hereby ORDERED that Plaintiff's request that the court deny, defer, or continue defendants' motion for summary judgment until discovery has been completed (Dkt. 34, at 1-2) is DENIED. Defendants' Motion for Summary Judgment (Dkt. 28) is GRANTED in the following respect: All claims under Titles II and VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act, 42 U.S.C. § 1981 and 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE. The court DECLINES to exercise supplemental jurisdiction over plaintiff's state law claims, and those claims are DISMISSED. Defendants' request for attorney's fees is DENIED. In the event that plaintiff files an appeal in this case with the Ninth Circuit, and in the event that plaintiff requests to proceed in forma pauperis on appeal, that request is DENIED, without prejudice to plaintiff to file with the Ninth Circuit a request to proceed in forma pauperis. Other than a Notice of Appeal, any document plaintiff files in this case in the future will be docketed by the Clerk but will not be acted upon by the court.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.


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