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NOT FOR PUBLICATION


UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITSAMUEL W WANI Plaintiff-Appellant v GEORGE FOX UNIVERSITY et al Defendants-Appellees and PROVIDENCE MEDICAL GROUP DefendantNo19-35355 DC No317-cv-010

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1 NOT FOR PUBLICATION UNITED STATES CO
NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SAMUEL W. WANI, Plaintiff - Appellant, v. GEORGE FOX UNIVERSITY; et al., Defendants - Appellees, and PROVIDE N CE MEDICAL GROUP, Defendant. No. 19 - 35355 D.C. No. 3:17 - cv - 01011 - YY MEMORANDUM * Appeal from the United States District Court for the District of Oregon Youlee Yim You, Magistrate Judge, Presiding * * Submitted M a r c h 3 1 , 202 1 * * * Before: FERNANDEZ, SILVERMAN, AND N.R. SMITH, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36 - 3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. 636(c) . *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). FILED APR 1 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS 2 19 - 35355 Samuel W. Wani appeals pro se from the district court’s judgment in his action alleging federal and state law claims arising out of an injury sustained while attending George Fox University (“GFU”) as a student a thlete and an incident of cyberbullying . We have jurisdiction under 28 U.S.C. 1291. We review de no

2 vo. Hamby v. Hammon , 821 F.3d 1085, 1
vo. Hamby v. Hammon , 821 F.3d 1085, 1090 (9th Cir. 2016) (summary judgment); Yakima Valley Mem’l Hosp . v. Wash . Dep’t of Health , 654 F.3d 919, 925 (9th Cir. 2011) (judgment on the pleadings) . We affirm. The district court properly granted judgment on the pleadings for Fix - Gonzalez on Wani’s cyberbull y ing claim because Oregon’s cyberbullying statue does not create any statutory cause of action. See Or . Rev. Stat. 339.364. The district court properly granted judgment on the pleadings for Fix - Gonzalez and the individual GFU defendants (“GFU Defendants”) 1 on Wani’s racial harassment and racial discrimination claim s because these defendants are individual s . See 42 U.S.C. 2000d ( statute applies only to “program or activity receiving federal assistance”). The district court properly granted judgment on the pleadings for GFU on Wani’s racial harassment claim because Wani failed to allege fact s sufficient to show a hostile environment. See Monteiro v. Tempe Union High Sch . Dist. , 158 1 The individual GFU defendants are: Gregg Boughton; Chris Casey; John Bates; Ian Sanders; Gabe Haberly; Craig Taylor; Dave Johnstone; Mark Pothoff; and Sarah Taylor. 3 19 - 35355 F.3d 1022, 1033 (9th Cir. 1998) (setting forth the definition of a hostile environment and delineating the test for a Title VI violation). The dist

3 rict court pro perly dismissed Wani
rict court pro perly dismissed Wani’s negligence claims against GFU and the GFU defendants arising from these defendants ’ alleged failure to address his injury because Wani failed to allege facts sufficient to show these defendants breached a duty of care while he was a student at GFU. See Brenn e n v. City of Eugene , 591 P.2d 719 , 722 (Or. 1979) ( setting forth elements of negligence and breach of duty of care claims ). The district court properly dismissed Wani’s intentiona l infliction of emotional distress (“IIED”) claims against GFU and the GFU defendants because Wani failed to allege facts sufficient to show the se defendants intended to inflict severe emotional distress. See Dawson v. Entek Intern. , 630 F.3d 928 , 941 (9t h Cir. 2011) (setting forth the three - part test for IIED under Oregon law ). The district court properly granted judgment on the pleadings for Fix - Gonzalez on Wani’s IIED claim because Wani failed to allege that Fix - Gonzalez’s actions “ were sufficiently gr ievous to constitute a transgression of the bounds of socially tolerable conduct .” I d. The district court properly dismissed Wani’s claim for negligent infliction of emotional distress (“NIED”) against GFU and the GFU defendants because Wani failed to allege facts sufficient to show whether his relationship with the se 4 19 - 35355 defendants

4 gave rise to a distinct, legally prot
gave rise to a distinct, legally protected interest. See Stevens v. First Interstate Bank of Cal. , 999 P.2d 551, 554 ( Or. App. 2000) (to recover for NIED under Oregon law, a plaintiff must demonstrate a relationship with defendants that gives rise to “some distinct legally protected interest beyond liability gr ounded in the general obligation to take reasonable care not to cause a risk of foreseeable harm’’ (citation and internal quotation marks omitted)). The district court properly granted defendant Fix - Gonzalez’s motion for judgment on the pleadings on Wani’ s NIED claim because Wani failed to allege his relationship with Fix - Gonzalez created a distinct, legally protected interest. See i d. The district court properly granted summary judgment on Wani’s Title VI racial discrimination claims because Wani faile d to raise a genuine dispute of material fact as to whether GFU w as deliberately indifferent to known peer harassment or disparate treatment in medical care. See Monteiro , 158 F.3d at 1033 ( “When a district is deliberately indifferent to its students’ rig ht to a learning environment free of racial hostility and discrimination, it is liable for damages under Title VI.” ( citation and internal quotation marks omitted ); see also Flores v. Morgan Hill Unified Sch . Dist. , 324 F.3d 1130, 1135 (9th Cir. 2003) (“De liberate indifference is found if the school admin

5 istrator responds to known peer harassm
istrator responds to known peer harassment in a manner that is . . . clearly unreasonable.” (internal citation omitted) ). 5 19 - 35355 The district court properly dismissed Wani’s Health Insurance Portability and Accountability Act (“ HIPAA ”) claims against defendants Taylor and Boughton because HIPAA does not allow a private civil action for money damages. See Garmon v. County of Los Angeles , 828 F.3d 837, 847 (9th Cir. 2016) (HIPAA itself provides no private righ t of action). The district court properly dismissed Wani’s breach of contract claim against GFU because Wani failed to allege facts sufficient to show the existence of a contract. See Slover v. Or . State Bd . of Clinical Soc . Workers , 927 P.2d 1098 , 1101 - 02 ( Or. App. 1996) ( set ting forth the elements of breach of contract under Oregon law ). The district court properly granted summary judgment on Wani ’ s negligence claim against defendant Croy because Wani failed to raise a genuine dispute of material fact that defendant Croy had a duty of care to Wani and that Croy breached that duty. See Brenn e n , 591 P.2d at 722 (outlining the elements required to show negligence under state law). The district court properly granted summary judgment on Wani ’s negligence claim against defendant s Boughton and Casey because Wani failed to provide expert testimony

6 regarding the standard of care and ca
regarding the standard of care and causation. See Baughman v. Pina , 113 P.3d 459 , 460 ( Or. App. 2005) (expert testimony is required to establish caus ation); see also Getchell v. Mansfield , 489 P.2d 953 , 179 ( Or. 1971) (expert 6 19 - 35355 testimony is required to determine what reasonable practice is in the community). The district court properly granted summary judgment for defendant GFU on the remaining vicarious liability and negligent hiring claims because the underlying claims against defendants Boughton and Casey failed. See Schmidt v. Slader , 327 P.3d 1182, 1185 - 86 (Or. App. 2014) (outlining the elements of vicarious liability) ; see a lso Brenn e n , 591 P.2d at 722 (outlining the elements required to show negligence under state law) . The district court did not abuse its discretion by dismissing Wani ’s second amended complaint without leave to amend because amendment would have been futi le. See Cervantes v. Countrywide Home Loans , 656 F.3d 1034, 1040 - 41 (9th Cir. 2011) (setting forth standard of review and explaining that a district court may deny leave to amend if amendment would be futile). The district court did not abuse its discreti on in denying Wani’s motion to compel discovery because Wani failed to establish that denial would result in actual and substantial prejudice . See Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002) (setting f

7 orth standard of review and explaining t
orth standard of review and explaining that a district court’s “decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant” (citation and internal quotation marks omitted)). The di strict court did not abuse i ts discretion by denyin g Wani ’s motion for 7 19 - 35355 rec onsideration because Wani failed to establish any basis for relief. See Sch. Dist. No. 1J , Multnomah Cty., Or. v. ACandS, Inc. , 5 F.3d 1255, 1262 - 63 (9th Cir. 1993) ( standard of rev iew and discussing grounds for reconsideration). The district court did not abuse its discretion by denying Wani’s motion for recusal because Wani presented no basis for recusal. See Glick v. Edwards , 803 F.3d 505, 508 (9th Cir. 2015) (setting forth standard of review and grounds for recusal); see also Liteky v. United States , 510 U.S. 540, 555 (1994) (explaining that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion”). We do not consider matters not specifically and distinctly raised in the opening brief. See Padgett v. Wright , 587 F.3d 983, 985 n.2 (9th Cir. 2009) . Wani’s motion for an evidentiary hearing (Docket Entry No. 31) and any related requests set forth in his supplemental pleadings regarding the motion (Docket Entry No. 35 ) are denied. AFFI