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Ramirez v. Adventist Medical Center

United States District Court, D. Oregon

February 6, 2018


          Maricela Ramirez. Plaintiff, pro se.

          Rodney K. Norton, Hart Wagner, LLP, Stephanie C Kucera, Hart Wagner, LLP, Of Attorneys for Defendant Adventist Medical Center.

          Robert M. Keating, Kelly Frances Huedopohl, and Tamara X. Arthur, Keating Jones Hughes, P.C., Of Attorneys for Defendants Tania Shaw, MD and Krista Swaninger, MD.

          Michael T. Stone and Grant D. Stockton, Brisbee & Stockton, LLC, 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, Of Attorneys for Defendant Metro West Ambulance Service, Inc.

          John Clinton Geil, Oregon Department of Justice, Of Attorney for Defendants Oregon State Board of Nursing, Oregon Department of Justice, State of Oregon, Oregon Health Authority, Suzanne Meadows, Charla Stephenson, Peggy Lee, and Oregon Department of Health and Human Services.



         Plaintiff Maricela Ramirez (“Plaintiff”) brings this pro se lawsuit against various defendants, alleging medical malpractice, discrimination, retaliation, breach of fiduciary duty, fraud, and intentional infliction of emotional distress. Plaintiff's claims arise out of several encounters with medical providers. Before the Court are various motions by Plaintiff and several Defendants.


         A. Defendant Meadows and Stephenson's Motion for Summary Judgment (ECF 98)

         At the time of the events giving rise to this lawsuit, Defendant Charla Stephenson was a Complaint Intake Coordinator at the Oregon Health Authority and Defendant Suzanne Meadows was an Investigator at the Oregon Board of Nursing (collectively, “Individual State Defendants”). In her Second Amended Complaint (“SAC”), Plaintiff asserted the following claims against Stephenson and Meadows: (1) violation of 42 U.S.C. § 1983; (2) conspiracy and fraudulent concealment under 18 U.S.C. § 1512; (3) aiding and abetting breach of fiduciary duty; and (4) intentional infliction of emotional distress. Per the Court's Order (ECF 141), on December 26, 2017, Plaintiff filed a Third Amended Complaint (“TAC”). ECF 152. At the time Plaintiff filed her TAC, the Individual State Defendants had a pending motion for summary judgment (ECF 98) against Plaintiff's SAC.

         As explained by a leading treatise on civil procedure:

Defendants should not be required to file a new motion to dismiss simply because an amended pleading was introduced while their motion was pending. If some of the defects raised in the original motion remain in the new pleading, the court may simply consider the motion as being addressed to the amended pleading.... To hold otherwise would be to exalt form over substance.

         Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1476. Because the claims against the Individual State Defendants in Plaintiff's TAC mirror those in Plaintiff's SAC, and because the same principle would apply to a motion for summary judgment as a motion to dismiss, the Court construes the Individual State Defendants' pending motion for summary judgment (ECF 98), and Plaintiff's responsive brief, as against Plaintiff's TAC.

         1. 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).

         2. Background[1]

         In July 2012, Plaintiff sought treatment at a health clinic and was seen by Nurse Practitioner Lawrence Maldanado. ECF 111-1 at 7. In a complaint that Plaintiff filed with the Oregon Health Authority, Plaintiff claimed that Maldanado covered up Plaintiff's actual medical condition and treated Plaintiff in an unethical manner. ECF 111-1 at 7. Meadows reviewed Plaintiff's complaint and obtained and reviewed records and notes relating to Maldanado's treatment of Plaintiff. Meadows wrote a report and submitted her findings to the Oregon State Board of Nursing. Meadows did not see any evidence that Maldanado had violated any laws or rules. The Board of Nursing, by vote, determined that Plaintiff's complaint against Maldanado should be dismissed. ECF 100 at 2. According to Plaintiff, Meadows told Plaintiff that the Oregon State Board of Nursing had investigated the results of Plaintiff's blood work taken during Plaintiff's visit with Maldanado, that Plaintiff's blood work was normal, that the Oregon State Board of Nursing decided not to take disciplinary action against Maldanado, and that Plaintiff should consult a psychiatrist.[2]

         Separately, on October 8, 2015, Plaintiff sought treatment at Providence St. Vincent Medical Center (“Providence”). A doctor removed a foreign object from Plaintiff's nostril. According to Plaintiff, she was told that her blood pressure was very low. Plaintiff alleges that Providence discriminated against her on the basis of her race, deliberately misdiagnosed her, and refused to hospitalize her or provide any other treatment. Plaintiff filed a complaint against Providence with the Oregon Health Authority (“OHA”). OHA informed Plaintiff by letter that a complaint investigation was not warranted. ECF 111-1 at 12. Stephenson approved the letter sent to Plaintiff. Id. Plaintiff wrote to Stephenson, objecting to OHA's decision. ECF 111-1 at 16-17. Plaintiff explained that she believed that she should have been admitted to the hospital. Four days later, Stephenson wrote to Plaintiff again, explaining that “[t]here are no laws that require a hospital to admit as an inpatient every patient who presents to the emergency department.” ECF 111-1 at 18. Further, Stephenson explained that medical decision-making and physician conduct was not within the jurisdiction of the Oregon Health Authority and that Plaintiff's concerns would be more properly addressed by the Oregon Medical Board. Stephenson provided Plaintiff with contact information for the Oregon Medical Board. ECF 111-1 at 18.

         Plaintiff further alleges that at some point the Individual State Defendants each accessed Plaintiff's medical records from various medical providers and learned that they had to “cover up” Plaintiff's actual medical condition, as a retaliatory act against a prior discrimination claim that Plaintiff made against a medical provider. Plaintiff, however, has no personal knowledge of these alleged facts, and they are not supported by any evidence in the record.

         3. ...

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