                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MYA M TRACY, a single person; M T, a             No. 10-36107
minor, by and through his mother, Mya M.
Tracy,                                           D.C. No. 3:09-cv-05588-RJB

              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

JENNIFER KNIGHT; JOHN DOE
KNIGHT; MULTICARE HEALTH
SYSTEMS,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert J. Bryan, Senior District Judge, Presiding

                       Argued and Submitted August 2, 2011
                               Seattle, Washington

Before: SCHROEDER and M. SMITH, Circuit Judges, and FOGEL, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jeremy D. Fogel, District Judge for the United States
District Court for the Northern District of California, sitting by designation.
      Mya Tracy, as an individual and on behalf of her minor child, M.T.

(collectively the Tracys), appeals the district court’s order granting summary

judgment to defendants MultiCare Health System (MultiCare) and its former

employee, Jennifer Knight. The Tracys sued Knight and MultiCare for violations

of 42 U.S.C. § 1983 and the Washington state tort of outrage, after Knight

allegedly excluded Mya from M.T.’s medical examination.

      The parties do not dispute that R.C.W. 4.16.080 provides the three-year

statute of limitations governing Mya’s claim arising under 42 U.S.C. § 1983. The

same statute of limitations also governs Mya’s state law claim. See Milligan v.

Thompson, 953 P.2d 112, 115 (Wash. Ct. App. 1998). Because Mya filed suit

more than three years after her claims arose, and tolling does not apply, the district

court properly granted summary judgment as to Mya.

      Summary judgment was also appropriate with respect to M.T.’s § 1983

claim because even if the panel assumes that defendants were state actors they

were entitled to qualified immunity since they did not violate a clearly-established

federal right. See Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). We have

recognized that a child’s right to have a parent present during a medical

examination is not absolute, and a parent may be asked to wait nearby if there is a

valid reason for excluding them. M.T. did not have the absolute right to have Mya


                                           2
present in the examination room when Mya consented to the exam, hospital

employees were concerned that Mya would interfere with the investigation, and

Mya was allowed to wait in a nearby waiting room. Wallis v. Spencer, 202 F.3d

1126, 1142 (9th Cir. 2000). There is no allegation that the examination itself was

improperly conducted.

      The state law claim of outrageous conduct is also without merit. The record

shows that the exclusion of the mother from the examination was not unreasonable,

much less outrageous. See Birklid v. Boeing Co., 904 P.2d 278, 286 (Wash. 1995).

      Appellees’ request for sanctions is denied.

      AFFIRMED.




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