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Ramirez v. Adventist Medical Center

United States District Court, D. Oregon

December 26, 2017

MARICELA RAMIREZ, Plaintiff,
v.
ADVENTIST MEDICAL CENTER, et al., Defendants.

          Maricela Ramirez. Plaintiff, pro se.

          Rodney K. Norton, Hart Wagner, LLP, 1000 SW Broadway, Portland, OR 97205. Stephanie C Kucera, Hart Wagner, LLP, 439 SW Umatilla Avenue, Redmond, OR 97756. Of Attorneys for Defendant Adventist Medical Center.

          Robert M. Keating, Kelly Frances Huedopohl, and Tamara X. Arthur, Keating Jones Hughes, P.C., One SW Columbia, Suite 800, Portland, OR 97258-2095. Of Attorneys for Defendants Tania Shaw, MD and Krista Swaninger, MD.

          Melissa J. Bushnick and Grant D. Stockton, Brisbee & Stockton LLC, 139 NE Lincoln Street, Hillsboro, OR 97123. Of Attorneys for Defendant Providence Health & Services - Oregon doing business as Providence St. Vincent Medical Center.

          Chelsea J. Glynn and Donald E. Templeton, Dunn Carney Allen Higgins & Tongue, LLP, 851 SW Sixth Avenue, Suite 1500, Portland, OR 97204-1357. Of Attorneys for Defendant Metro West Ambulance Service, Inc.

          OPINION AND ORDER

          MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE

         Plaintiff Maricela Ramirez (“Plaintiff”) brings this pro se lawsuit against Metro West Ambulance Service, Inc. (“Metro West”) and several other defendants, alleging medical malpractice, discrimination, retaliation, breach of fiduciary duty, fraud, and intentional infliction of emotional distress. Plaintiff alleges in her Second Amended Complaint (“Complaint”) the following claims against Metro West: (1) violation of 42 U.S.C. § 1981; (2) violation of Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a); (3) violation of Oregon Revised Statutes (“ORS”) § 659A.403; (4) conspiracy and fraudulent concealment under 18 U.S.C. § 1512; and (5) intentional infliction of emotional distress. Plaintiff alleges that Metro West paramedics discriminated against her on the basis of race. Before the Court is Metro West's motion for summary judgment. For the reasons stated below, the motion is granted.

         STANDARDS

         A party is entitled to 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 has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         It is the responsibility of the non-moving party to “set forth specific facts showing that there is a genuine issue for trial.” Keiffer v. Pernsteiner, 967 F.2d 527 (9th Cir. 1992). In order for a party to avoid summary judgment, such facts must be supported by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Fed R. Civ. P. 56(c)(1)(A). Where an affidavit or declaration is relied on to oppose a summary judgment motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed R. Civ. P. 56(c)(4). Where the party opposing summary judgment is proceeding pro se, the court “must consider as evidence . . . all of [that party's] contentions offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the party] attested under penalty of perjury that the contents of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).

         BACKGROUND

         Plaintiff has not attested to the veracity of any of her contentions, as she must in order for the court to consider those contentions as evidence. Although Plaintiff has submitted several exhibits, she has similarly not submitted any declaration attesting to the truth of those exhibits. Nonetheless, the Court will, for purposes of this motion, presume that all of Plaintiff's exhibits has been properly authenticated.

         On October 8, 2015, Plaintiff called 911. She was suffering from a nose bleed due to a garlic clove lodged in her nose. ECF 109 at 4; ECF 95 at 2; ECF 96 at 2; ECF 97 at 2. Two Metro West paramedics, Michelle Smith and Jacob Farmer, responded to the call and arrived at Plaintiff's home. When Plaintiff opened the door, Farmer told Plaintiff that if they took her to the hospital in an ambulance it would be expensive. Farmer and Smith both told Plaintiff that they had instructed another ambulance, which had also been called to Plaintiff's home, not to come.

         Because of the garlic clove in her nose, Plaintiff could only breathe through her left nostril, and was able to speak but only slowly.[1] ECF 109 at 10. Plaintiff asked that the paramedics remove the garlic from her nose, but they did not have the equipment or training to do so. ECF 96 at 2; ECF 97 at 2. Farmer checked Plaintiff's vitals and concluded that they were normal. ECF 96 at 2; ECF 97 at 2. Plaintiff alleges that her blood pressure was in fact very low, though she does not describe how she knew this. ECF 109 at 10. Both ...


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