Opinion
No. 16-55146
06-26-2017
KEVIN DONAVON ATKINSON, Plaintiff-Appellant, v. UNITED STATES GOVERNMENT, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 3:14-cv-00016-JLS-JMA MEMORANDUM Appeal from the United States District Court for the Southern District of California
Janis L. Sammartino, District Judge, Presiding Before: THOMAS, Chief Judge, and LEAVY and SILVERMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Kevin Donavon Atkinson appeals pro se from the district court's judgment dismissing 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., 770 P.2d 278, 281 (Cal. 1989) (setting forth elements of a negligent infliction of emotional distress claim under California law); Burgess v. Superior Court, 831 P.2d 1197, 1200-03 (Cal. 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., 863 P.2d 795, 819 (Cal. 1993) (discussing elements of an intentional infliction of emotional distress claim under California law).
AFFIRMED.