United States District Court, D. Oregon
Butler Pro se Plaintiff
Lyn Jones Katie M. Eichner, Lindsay Hart, Attorneys for
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Plaintiff Janell Butler brings this action alleging medical
malpractice claims against Oregon Health & Science
University (“OHSU”) and Dr. Kathryn Schabel.
Before the Court is Defendants' Motion for Summary
Judgment. See Mot. Summ. J, ECF 24. Defendants moves
for judgment as a matter of law on Plaintiff's claims on
the grounds that she failed to provide the statutorily
required notice to Defendants, did not file her case within
the two-year statute of limitations period, and because the
regulation which Plaintiff invoked as the basis for subject
matter jurisdiction does not provide her with a private cause
of action. Plaintiff has not responded to Defendants'
motion and has failed to raise any genuine issue of material
fact. Therefore, the Court grants summary judgment in
Defendants' favor and dismisses this case.
28, 2014, Dr. Schabel performed total knee replacement
surgery on Plaintiff. Schabel Decl. ¶ 3, ECF 23. On
October 8, 2014, Plaintiff received an x-ray evaluation in
response to her hip pain. Pl.'s Decl. Ex. 2 at 10, ECF.
6. Plaintiff began seeking treatment for lower back and hip
pain in October and December of 2014. Id. On January
22, 2015, Plaintiff requested that Oregon Health Plan approve
treatment for her back and hip pain. Id. That
request was denied on February 2, 2015, based on the medical
finding that Plaintiff's condition was below the required
diagnosis. Id. at 7. Plaintiff appealed, stating:
“I just had a total knee replacement which now that
it's fixed has thrown my right hip and back all out of
place. You can't fix one and not the other, it
doesn't help me with knee replacement.”
Id. at 18. Plaintiff's appeal was also denied.
Court previously granted Plaintiff's application to
proceed in forma pauperis and dismissed her
Complaint sua sponte after concluding that Plaintiff
had not demonstrated a basis for federal subject matter
jurisdiction. See, Op. & Order, Feb. 6, 2017,
ECF 7. Plaintiff filed an Amended Complaint which the Court
also dismissed sua sponte for the same reason.
See Am. Compl., ECF 9; Op. & Order, Mar. 3,
2017, ECF 10. Plaintiff then filed her Second Amended
Complaint on March 17, 2017. Second Am. Compl., ECF 12. OHSU
received service in this case on May 1, 2017. St. Clair Decl.
¶ 6, ECF 22. Dr. Schabel never received service. Schable
Decl. ¶¶ 4-5.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion and identifying those portions of
“‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)). Once the moving party
meets its initial burden of demonstrating the absence of a
genuine issue of material fact, the burden then shifts to the
nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed.
Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (quoting Horphag Research Ltd. v.
Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007)). The
nonmoving party must go beyond the pleadings and designate
facts showing an issue for trial. Bias v. Moynihan,
508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex,
477 U.S. at 324).
make three arguments in support of their motion. First, they
argue that Plaintiff has failed to provide the necessary tort
claim notice under Or. Rev. Stat. (“O.R.S.”)
§ 30.275. Second, Defendants argue that Plaintiff did
not file her claim within the two-year statute of limitations
period for medical malpractice cases under O.R.S. §
12.110(4). Finally, Defendants claim that the regulation
which Plaintiff cites, 45 C.F.R. § 690, does not provide
a basis for federal question jurisdiction.
Oregon Tort Claims Act provides that a plaintiff bringing an
action against a public body or employee of a public body
must give notice of the claim. O.R.S. § 30.275(1).
Notice of the medical malpractice claim must be given within
180 days after the plaintiff discovered or reasonably should
have discovered the basis for her claim. O.R.S. §
30.275(2)(b). In this case, the allegedly negligent surgery
occurred on July 28, 2014. Plaintiff began treatment for back
and hip pain stemming from that surgery in October of 2014.
Despite Plaintiff's awareness of her ...