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