                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 21 2016

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JERRY A. MENCHU,                                  No. 14-35614

               Plaintiff-Appellant,               D.C. No. 3:12-cv-02075-ST

 v.
                                                  MEMORANDUM*
LEGACY HEALTH; et al.,

               Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                          Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

      Jerry A. Menchu appeals pro se from the district court’s summary judgment

in his action alleging federal and state law racial discrimination claims arising out

of defendants’ decision to ban him from their premises. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Guatay Christian Fellowship v.

          *
             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).
County of San Diego, 670 F.3d 957, 970 (9th Cir. 2011). We affirm.

      The district court properly granted summary judgment on Menchu’s racial

discrimination claims because Menchu failed to raise a genuine dispute of material

fact as to whether defendants’ decision to ban him from their premises was based

on Menchu’s race. See 42 U.S.C. § 2000a (Title II of the 1964 Civil Rights Act

(“the Act”) prohibits discrimination in places of public accommodation “on the

ground of race, color, religion, or national origin”); § 2000d (Title VI of the Act

prohibits discrimination in connection with any federally-funded program or

activity based on “race, color, religion, sex, or national origin”); Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 (9th Cir. 2008) (“§ 1981

creates a cause of action only for those discriminated against on account of their

race or ethnicity.”); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536-38 (9th Cir.

1992) (racial or other select class-based animus is an element of a § 1985(3)

conspiracy claim); King v. Greyhound Lines, 656 P.2d 349, 351 (Or. Ct. App.

1982) (Oregon Revised Statute 659A.403 (formerly section 30.670) “proscribes

serving customers of one race in a manner different from those of another race.”).

      The district court properly granted summary judgment on Menchu’s state

law claim for intentional infliction of emotional distress (“IIED”) because Menchu

failed to raise a genuine dispute of material fact as to whether defendants intended


                                           2                                      14-35614
to inflict severe emotional distress on Menchu or that defendants’ conduct was

extreme or outrageous under the circumstances. See McGanty v. Staudenraus, 901

P.2d 841, 849 (Or. 1995) (setting forth elements of an IIED claim under Oregon

law).

        The district court properly granted summary judgment on Menchu’s state

law claim for negligent infliction of emotional distress (“NIED”) because Menchu

failed to raise a genuine dispute of material fact as to whether his relationship with

defendants gave rise to a distinct, legally protected interest. See Stevens v. First

Interstate Bank of Cal., 999 P.2d 551, 554 (Or. Ct. App. 2000) (to recover for

NIED under Oregon law, a plaintiff must demonstrate a relationship with

defendants that gives rise to “some distinct legally protected interest beyond

liability grounded in the general obligation to take reasonable care not to cause a

risk of foreseeable harm (citation and internal quotation marks omitted)).

        AFFIRMED.




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