                           NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       APR 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 MINNY FRANK,                                    No.    14-35188

                  Plaintiff-Appellant,           D.C. No. 6:11-cv-06402-AA

   v.
                                                 MEMORANDUM*
 CASCADE HEALTHCARE
 COMMUNITY, INC., agent of St. Charles
 Medical Center; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                             for the District of Oregon
                      Ann L. Aiken, District Judge, Presiding

                             Submitted April 11, 2017**

Before:       GOULD, CLIFTON, and HURWITZ, Circuit Judges.

        Minny Frank appeals pro se from the district court’s summary judgment in

her 42 U.S.C. § 1983 action alleging federal and state law claims in connection

with psychiatric emergency services she received at a hospital. We have


        *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo summary judgment and

qualified immunity. Hughes v. Kisela, 841 F.3d 1081, 1084 (9th Cir. 2016). We

affirm.

      The district court properly granted summary judgment on Frank’s § 1983

damages claims against defendants Namanny and Macdonnell because they are

entitled to qualified immunity for the alleged Fourth Amendment and Fourteenth

Amendment violations. See Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(explaining that “qualified immunity protects government officials from liability

for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known”

(citation and internal quotation marks omitted)).

      The district court properly granted summary judgment on Frank’s § 1983

claims against defendants Cascade Healthcare Community, Inc. (d/b/a St. Charles

Medical Center), Palmer, Timms, Ryan, Violet, Huffman, Lancaster, McBride,

Beutler, and Nelson because Frank failed to raise a genuine dispute of material fact

as to whether these private defendants were acting under color of state law. See

Kirtley v. Rainey, 326 F.3d 1088, 1092-96 (9th Cir. 2003) (describing criteria used

in evaluating whether a defendant is a state actor).

                                          2                                   14-35188
      The district court properly granted summary judgment on Frank’s

negligence per se claim because Frank failed to raise a genuine dispute of material

fact as to whether defendants violated any applicable statute or rule during the

provision of her medical care. See Buoy v. Kim, 221 P.3d 771, 779 (Or. Ct. App.

2009) (elements of a negligence per se claim under Oregon law); see also Abraham

v. T. Henry Constr., Inc., 249 P.3d 534, 537 n.5 (Or. 2011) (“[N]egligence per se

is . . . simply shorthand for a negligence claim in which the standard of care is

expressed by a statute or rule.”).

      The district court properly granted summary judgment on Frank’s medical

negligence and negligent infliction of emotional distress (“NIED”) claims because

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

breached a duty of care owed to her. See Creasey v. Hogan, 637 P.2d 114, 122

(Or. 1981) (medical negligence claim under Oregon law requires proof “of what is

proper conduct by practitioners in the community or a similar community under

circumstances similar to those which confronted the defendant”); Simons v. Beard,

72 P.3d 96, 103 (Or. Ct. App. 2003) (medical NIED claim under Oregon law

requires that “the defendant care provider breached a specific duty to be aware of

and guard against particular adverse psychological reactions or consequences to

                                          3                                    14-35188
medical procedures” (citation and internal quotation marks omitted)).

      The district court properly granted summary judgment on Frank’s claim of

intentional infliction of emotional distress (“IIED”) because Frank failed to raise a

genuine dispute of material fact as to whether defendants intended to inflict severe

emotional distress on her or that defendants’ conduct constitutes an extraordinary

transgression of the bounds of socially tolerable conduct. See McGanty v.

Staudenraus, 901 P.2d 841, 849 (Or. 1995) (en banc) (requirements of an IIED

claim under Oregon law).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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