NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN DONAVON ATKINSON, No. 16-55146
Plaintiff-Appellant, D.C. No. 3:14-cv-00016-JLS-JMA
v.
MEMORANDUM*
UNITED STATES GOVERNMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and LEAVY and SILVERMAN, Circuit
Judges.
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
*
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).
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.
2 16-55146