Foley v. Donaldson

85 F. App'x 580

Opinion

MEMORANDUM

Footnotes

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Oregon state prisoner Ronald R. Foley appeals pro se the district court’s order denying his requests for compensatory and punitive damages in his diversity action against attorney Rebecca Donaldson alleging negligence and malpractice for failure to file a 28 U.S.C. § 2255 motion on Foley’s behalf. We have jurisdiction under 28 U.S.C. § 1291, and review for abuse of discretion. See School Dish No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255,1262 (9th Cir.1993) (reviewing motion to alter or amend the judgment); Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir.1986) (reviewing motion for default judgment). We affirm.

The district court entered a default judgment against Donaldson for $12,991.34 in actual damages and applicable statutory interest. Foley contends that the district court erred by denying his requests for compensatory and punitive damages. We disagree.

The district court did not abuse its discretion by denying Foley’s request for damages for emotional distress he suffered as a result of his lawyer’s failure to file a section 2255 motion because Foley’s complaint did not support recovery for emotional distress damages under Oregon law. See Hilt v. Bernstein, 75 Or.App. 502, 707 P.2d 88, 94-95 (1985).

The district court properly exercised its discretion by denying Foley’s request for punitive damages because there was no clear and convincing evidence that Donaldson acted with malice or a reckless and outrageous indifference to a highly unreasonable risk of harm. See Or.Rev.Stat. § 18.537(1).

Foley’s remaining contentions also lack merit.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.