Paul Fletcher v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 17-35936
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL HARTSON FLETCHER, No. 17-35936

Plaintiff-Appellant, D.C. No. 6:15-cv-00104-DLC

v. MEMORANDUM* UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Paul Hartson Fletcher appeals pro se from the district court’s summary

judgment in his Federal Tort Claims Act (“FTCA”) action alleging medical

malpractice. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Hutchinson v. United States, 838 F.2d 390, 392 (9th Cir. 1988). We affirm.

* 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). The district court properly granted summary judgment because Fletcher

failed to adduce expert testimony and therefore failed to raise a genuine dispute of

material fact as to whether defendant committed medical malpractice. See Jackson

v. United States, 881 F.2d 707, 712 (9th Cir. 1989) (substantive state law applies in

FTCA actions); Beehler v. E. Radiological Assocs., P.C., 289 P.3d 131, 136 (Mont.

2012) (setting forth elements of a negligence claim under Montana law and

declining to apply the “common knowledge” exception to the expert testimony

requirement); Griffin v. Moseley, 234 P.3d 869, 875 (Mont. 2010) (“[A] plaintiff

has the burden in a medical malpractice case of presenting evidence on the medical

standard of care ‘by expert medical testimony unless the conduct complained of is

readily ascertainable by a layman.’” (citation omitted)).

The district court did not abuse its discretion by denying Fletcher’s motions

for appointment of counsel because Fletcher did not demonstrate any exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and “exceptional circumstances” requirement).

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.

2 17-35936