                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         JUN 26 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

KEVIN DONAVON ATKINSON,                          No.    16-55146

                Plaintiff-Appellant,             D.C. No. 3:14-cv-00016-JLS-JMA

 v.
                                                 MEMORANDUM*
UNITED STATES GOVERNMENT,

                Defendant-Appellee.

                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and LEAVY and SILVERMAN, Circuit
Judges.

      Kevin Donavon Atkinson appeals pro se from the district court’s judgment

dismissing his Federal Tort Claims Act action alleging negligent infliction of

emotional distress and intentional infliction of emotional distress arising out of

treatment provided at a Veteran’s Affairs health center. We have jurisdiction


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R. Civ. P.

12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm.

      The district court properly dismissed Atkinson’s claim for negligent

infliction of emotional distress because Atkinson failed to establish that defendant

owed him a duty of care. See Marlene F. v. Affiliated Psychiatric Med. Clinic,

Inc., 770 P.2d 278, 281 (Cal. 1989) (setting forth elements of a negligent infliction

of emotional distress claim under California law); Burgess v. Superior Court, 831

P.2d 1197, 1200-03 (Cal. 1992) (discussing duty of care).

      The district court properly dismissed Atkinson’s claim for intentional

infliction of emotional distress because Atkinson failed to establish that

defendant’s conduct was extreme and outrageous conduct. See Potter v. Firestone

Tire and Rubber Co., 863 P.2d 795, 819 (Cal. 1993) (discussing elements of an

intentional infliction of emotional distress claim under California law).

      AFFIRMED.




                                          2                                    16-55146
