Kevin Atkinson v. United States Government

692 F. App'x 830

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 26, 2017
• Docket: 16-55146
• Status: Unpublished

Opinion

MEMORANDUM **

Kevin Donavon Atkinson appeals pro se from .the district court’s judgment dismiss ing 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 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., 48 Cal.3d 583, 257 Cal.Rptr. 98, 770 P.2d 278, 281 (1989) (setting forth elements of a negligent infliction of emotional distress claim under California law); Burgess v. Superior Court, 2 Cal.4th 1064, 9 Cal.Rptr.2d 615, 831 P.2d 1197, 1200-03 (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., 6 Cal.4th 965, 25 Cal.Rptr.2d 550, 863 P.2d 795, 819 (1993) (discussing elements of an intentional infliction of emotional distress claim under California law).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.