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Ramirez v. Parker

United States District Court, D. Oregon, Portland Division

November 7, 2014


Maricela Ramirez, Plaintiff, Pro se, Portland, OR.

For MD Melanie Parker, MD Stephanie Anderson, Legacy Good Samaritan Hospital & Medical Center, Legacy Emanual Medical Center, LMG Northeast, Defendants: Lindsey Harris Hughes, Sara A. Cassidey, LEAD ATTORNEYS, Keating Jones Hughes, P.C., Portland, OR.


JOHN V. ACOSTA, United States Magistrate Judge.


Plaintiff Maricela A. Ramirez (" Ramirez") alleges that Defendants Melanie Parker, M.D. (" Dr. Parker"), Stephanie Anderson, M.D. (" Dr. Anderson"), Legacy Good Samaritan Medical Center (" Good Samaritan"), Legacy Emanuel Medical Center (" Legacy Emanuel"), Legacy Medical Group Northeast (" LMG Northeast"), and Does 1 to 100 (collectively " Defendants") committed medical malpractice and discriminated against Ramirez on the basis of her Mexican-American heritage and physical disability. Defendants move for summary judgment on each of Ramirez's claims. Ramirez responded to Defendants motion, but also filed a motion for leave to amend. Her Proposed Amended Complaint (" PAC") omits several claims stated in her previous complaints and adds a new claim under 42 U.S.C. § 1981. The court should grant in part and deny in part Defendants' Motion for Summary Judgment and deny Ramirez's Motion for Leave to Amend.

Factual Background

Ramirez is a citizen of Oregon with her principal place of residence in Portland, Oregon. Her claims arise out of medical treatment she received from Defendants between October 2009 and April 2012. Ramirez alleges she was given insufficient medical care and was treated disparately because of her race and disability.

On October 7, 2009, Ramirez went to the Legacy Emanuel emergency room complaining of " itching and burning throughout her entire body, nausea, intolerance to most foods, severe abdominal pain, severe back pain, extreme weakness, etc." (First Am. Compl. at 5.)[1] Ramirez alleges the emergency-room staff was rude to her, and she was required to wait more than five hours without seeing a doctor while others who came in after her were admitted almost immediately. (First Am. Compl. at 5.) Ramirez does not allege whether she eventually saw a physician on that day, but telephoned the Legacy Emanuel patient relations department the following day to express her belief that she had been discriminated against on the basis of race and disability. (First. Am. Compl. at 5-6.)

On October 8, 2009, Ramirez sought medical attention at Good Samaritan, where she again complained of food intolerance, nerve irritation, body pain, and muscle weakness. (First Am. Compl. at 6.) Her doctor ordered blood tests, which came back normal. (First Am. Compl. at 6.) The attending emergency room doctor told Ramirez that the tests came back negative and released her with instructions to consume a primarily liquid diet to calm her digestive system. (First Am. Compl. at 6.) Ramirez alleges that she in fact suffered from organ failure and cancer and the attending emergency-room physician concealed her true diagnosis. (First Am. Compl. at 6.)

On July 26, 2011, Ramirez returned to Good Samaritan emergency room, where she was examined by Dr. Parker. (First Am. Compl. at 7.) Dr. Parker ordered blood tests, which again came back negative for any problem. (First Am. Compl. at 7.) Ramirez alleges Dr. Parker and Good Samaritan nurses " wouldn't listen to [her] and intentionally concealed that Plaintiff suffered [from] kidney failure, other internal organs failure, nerve damage and cancer and undermined her condition." (First Am. Compl. at 7.)

On April 25, 2012, Ramirez consulted with Dr. Anderson at LMG Northeast for symptoms similar to those she experienced at previous doctor visits. (First Am. Compl. at 8.) Ramirez alleges Dr. Anderson treated her rudely, " mocked her condition, " and " intentionally covered up that Plaintiff had ... organs failure, nerve damage and cancer and denied her adequate medical care." (First Am. Compl. at 8.) According to Ramirez, Defendants intentionally provided her medical care which fell below professional standards because she is a racial minority and suffers from a disability.

Procedural Background

Ramirez filed her original complaint on October 4, 2013, alleging medical malpractice, race discrimination under Title VII of the Civil Rights Act of 1964, and disability discrimination under section 504 of the Rehabilitation Act and Title III of the Americans with Disabilities Act (" ADA"). On December 31, 2013, Ramirez filed her First Amended Complaint, which also states claims for medical malpractice, race discrimination, and disability discrimination. Although Ramirez groups her claims together into only two causes of action, because she is a pro se plaintiff, the court will construe her claims liberally as asserting four separate causes of action.[2] Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (construing liberally a prose plaintiffs claims). Further, because her claims are based on four distinct incidents of medical treatment between October 2009 and April 2012, the court construes Ramirez to state four counts under each cause of action.

Defendants answered Ramirez's First Amended Complaint and moved for summary judgment. Shortly thereafter, the court issued and mailed Ramirez, who is appearing pro se, a summary judgment advice notice (the " Notice"). The notice advised Ramirez that:

When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials, as provided in Rule 56(c), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.

(Dkt. No. 52.)

Ramirez responded to Defendants' motion and argued Defendants were not entitled to summary judgment, but nonetheless moved for leave to amend her claims. Her PAC, which is attached as an exhibit to her Motion for Leave to File Second Amended Complaint (" Motion for Leave to Amend"), retains her claims for medical malpractice, omits her previously asserted claims under the Civil Rights Act, section 504 of the Rehabilitation Act, and the ADA, and adds a claim for race discrimination under 42 U.S.C. § 1981.

Legal Standards

I. Motion for Summary Judgment

A court should grant a motion for 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 bears the burden of establishing that no issue of fact exists and that the nonmovant cannot prove one or more essential elements of a claim or defense. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant meets his burden, the nonmovant must " go beyond the pleadings [] by her own affidavits ... [to] designate specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks omitted). Conclusory allegations which are unsupported by factual material such as affidavits and documentary evidence are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

On summary judgment, the court is bound to view all facts in a light most favorable to the nonmovant and must draw all justifiable inferences in the nonmovant's favor. Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). Further, where the nonmoving party to a motion for summary judgment is a prose litigant, the court must " construe liberally the filings and motions." Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).

II. Motion for Leave to Amend

Under Rule 15 " a patty may amend its pleadings only with the opposing party's written consent or the court's leave." The court should " freely give leave when justice so requires." Fed.R.Civ.P. 15. However, the court need not grant leave to amend where the amendment " (1) prejudices the opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile." AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). Futility can, by itself, justify denial of a motion for leave to amend. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). Amendment is futile " only if no set of facts can be proved ... that would constitute a valid and sufficient claim or defense." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988).


Two motions are before the court, one by each side. First, the court will determine whether Defendants are entitled to summary judgment on the claims stated in Ramirez's First Amended Complaint. Second, the court will determine whether Ramirez may have leave to amend her complaint.

I. Defendants' Motion for Summary Judgment

Defendants move for summary judgment on all of Ramirez's claims. Ramirez defends the merits and procedural propriety of her claims. In addition, Ramirez asks the court to defer ruling on Defendants' motion for summary judgment to allow her to complete discovery and obtain expert evidence.

A. Ramirez's request to Defer Ruling and Complete Discovery

Ramirez asks the court to delay ruling on the merits of Defendants' Motion for Summary Judgment until discovery is complete. Under Rule 56(d), " [i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition" to a motion for summary judgment, the court may defer ruling on the motion or allow additional time to complete the discovery necessary to respond to the movant's arguments. Ramirez moved separately to delay resolution of Defendants' summary judgment motion in her Motion to Modify the Summary Judgment under advisement date (Dkt. No. 57).

Ramirez had ample time to complete discovery in this case, but failed to use the time provided. Ramirez filed her suit on October 4, 2013, and in a March 27, 2014 minute order, the court ordered that discovery be completed by July 28, 2014. Ramirez had almost ten months to serve Defendants with interrogatories, requests for production, and deposition requests. However, there is no evidence Ramirez made any effort to conduct discovery before discovery deadlines lapsed; in fact, she admitted at oral argument that she had not provided Defendants with any discovery requests within the discovery period. Further, Ramirez produced no evidence that her efforts would yield discoverable material were the court to grant her additional time in which to conduct discovery.

Moreover, this is not the first case in which Ramirez has attempted to defer and delay proceedings. In two cases Ramirez filed in the Western District of Washington, she made similar motions to stay, both of which were denied for lack of evidence entitling Ramirez to a stay. Motion to Stay, Ramirez v. Chow et al., Case No. 3:12-cv-05630 JRC (W. D. Wash. June 13, 2013) ECF Nos. 62, 65; Motion to Stay by Plaintiff Maricela Ramirez, Ramirez v. Hart, 3: 13-cv-05873-RJB (W. D. Wash. March 25, 2014), ECF No. 24 at 1. The record in both of these cases shows Ramirez did not engage in discovery, as the only evidence she presented in opposition to Defendants' motions for summary judgments in those cases were her medical records, which were in her possession before filing suit. Response to Motion for Summary Judgment, Ramirez v. Chow et al., Case No. 3:12-cv-05630 JRC (W. D. Wash. May 13, 2013) ECF No. 49; Response to Motion for Summary Judgment, Ramirez v. Hart, 3:13-cv-05873-RJB (W. D. Wash. May 16, 2014) ECF No. 36. Ultimately, the court granted summary judgment for defendants in both of those cases. Ramirez has repeatedly filed lawsuits, failed to engage in any meaningful discovery, and then sought to delay proceedings without evidence to support her requests. Without evidence supporting her request, the court denies Ramirez's motion to delay ruling on Defendants' Motion for Summary Judgment.

B. Medical Malpractice.

Ramirez alleges she received substandard medical care from one or more defendants during medical appointments on October 7, 2009, October 8, 2009, July 26, 2011, and April 25, 2012. Defendants contend they are entitled to summary judgment on each claim because: (1) three of Ramirez's four claims are barred by the statute of limitations; and (2) Ramirez cannot prove at least one essential element to her malpractice claims. The court agrees with Defendants.

1. Statute of Limitations

Defendants first argue that three of Ramirez's four medical malpractice claims are barred by Oregon's two-year statute of limitations. In Oregon, " [a]n action to recover damages for injuries to the person arising from any medical, surgical or dental treatment ... shall be commenced within two years from the date when the injury is first discovered" or should have been discovered. Or. Rev. Stat. § 12.110(4). Further, under to the common-law " discovery rule, " the limitations period does not commence until the Plaintiff knows or should know of the causal relationship between his or her injury and the Defendant's conduct. Berry v. Branner, 245 Ore. 307, 308, 421 P.2d 996 (1966). However, regardless of when, or if, the Plaintiff discovers her injury, a medical ...

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