United States District Court, D. Oregon
Maricela Ramirez. Plaintiff, pro se.
K. Norton, Hart Wagner, LLP, Stephanie C Kucera, Of Attorneys
for Defendant Adventist Medical Center.
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, Of Attorneys for Defendant Metro West
Ambulance Service, Inc.
Clinton Geil, Oregon Department of Justice, Of Attorney for
Defendants State of Oregon, Oregon Department of Justice,
Oregon State Board of Nursing, Oregon Health Authority,
Suzanne Meadows, and Charla Stephenson.
AMENDED OPINION AND ORDER
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE.
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.
Defendant Meadows and Stephenson's Motion for Summary
Judgment (ECF 98)
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.
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
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
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).
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).
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.
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.
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.