Angela Olinghouse v. United States , 684 F. App'x 616 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGELA OLINGHOUSE, No. 15-35301
Plaintiff-Appellant, D.C. No. 3:14-cv-05871-RBL
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Angela Olinghouse appeals pro se the district court’s judgment dismissing
her action, alleging, among other claims, negligent supervision and training claims.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s determination of subject matter jurisdiction. Gager v. United States, 149
*
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).
F.3d 918, 920 (9th Cir. 1998). We affirm.
The district court properly dismissed for lack of subject matter jurisdiction
Olinghouse’s action against the United States because Olinghouse failed to exhaust
administrative remedies under the Federal Tort Claims Act (“FTCA”). See 42
U.S.C. § 233 (the FTCA is the exclusive remedy for actions arising “from the
performance of medical, surgical, dental, or related functions . . . by any
commissioned officer or employee of the Public Health Service”); see also 28
U.S.C. § 2675(a) (a party must file an administrative claim before filing an action
under the FTCA); Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (“The
requirement of an administrative claim is jurisdictional.”). To the extent that, as
Olinghouse argues, her claims for negligent training and supervision did not relate
to the performance of “medical . . . or related functions” under 42 U.S.C. § 233,
such claims were barred by the sovereign immunity doctrine. See Valdez v. United
States, 56 F.3d 1177, 1179 (9th Cir. 1995) (explaining that “[a] party may bring an
action against the United States only to the extent that the government waives its
sovereign immunity” and that the FTCA represented “a limited waiver of that
sovereign immunity for tort claims arising out of the conduct of a government
employee acting within the scope of his or her employment”); Nurse v. United
States, 226 F.3d 996, 1001 (9th Cir. 2000) (claims of negligent supervision and
training “fall squarely within the discretionary function exception” to the FTCA).
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The district court did not abuse its discretion in denying Olinghouse’s
motion to extend discovery because Olinghouse failed to show diligence in pursuit
of the expert discovery that was required to oppose a motion for summary
judgment on her medical malpractice claim. See Brae Transp., Inc. v. Coopers &
Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986) (setting forth standard of review and
explaining that the district court does not abuse discretion by denying further
discovery if the movant “fails to pursue discovery diligently before summary
judgment”).
The district court did not abuse its discretion in denying Olinghouse’s
request for an appointment of counsel. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (setting forth standard of review and exceptional circumstances
requirement for appointment of counsel).
We reject as without merit Olinghouse’s contention that the district court
judge was biased.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All requests set forth in Olinghouse’s opening brief are denied.
AFFIRMED.
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