Jeffery Harris v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2024
• Docket: 21-16644
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEFFERY J. HARRIS, No. 21-16644

Plaintiff-Appellant, D.C. No. 4:19-cv-00248-DCB

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Submitted July 16, 2024**

Before: SCHROEDER, VANDYKE, and KOH, Circuit Judges.

Jeffery J. Harris appeals pro se from the district court’s summary judgment

in his Federal Tort Claims Act (“FTCA”) action alleging negligence and battery in

connection with medical treatment provided by the Department of Veterans

Affairs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo cross-

* 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). motions for summary judgment. Hamby v. Hammond, 821 F.3d 1085, 1090 (9th

Cir. 2016). We affirm.

The district court properly granted summary judgment on Harris’s claims

alleging negligence in the treatment of his medical issues because Harris failed to

raise a genuine dispute of material fact as to whether the medical treatment he

received breached the applicable standard of care. See Conrad v. United States,

447 F.3d 760, 767 (9th Cir. 2006) (in a FTCA action, the law of the state in which

the alleged tort occurred applies); Seisinger v. Siebel, 203 P.3d 483, 492-93

(Ariz. 2009) (explaining the elements of a medical malpractice claim under

Arizona law and that, except in situations where it is a matter of common

knowledge, “the standard of care normally must be established by expert medical

testimony,” and failure to produce the required expert testimony mandates

judgment for defendant).

The district court properly granted summary judgment on Harris’s battery

claim because Harris failed to raise a genuine dispute of material fact as to whether

the medical procedures at issue were performed without his consent. See Duncan

v. Scottsdale Med. Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003) (explaining the

elements of a battery claim under Arizona law and that a health care provider

commits a common law battery on a patient only if a medical procedure is

performed without the patient’s consent).

2 21-16644 The district court did not abuse its discretion in denying Harris’s post-

judgment motion because Harris failed to set forth any basis for relief. See Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th

Cir. 1993) (setting forth standard of review and grounds for reconsideration under

Federal Rules of Civil Procedure 59(e) and 60(b)).

We reject as without merit Harris’s contention that the district court erred in

denying his cross motion for summary judgment.

Harris’s pending motions for an extension of time to file a reply brief are

denied.

AFFIRMED.

3 21-16644