NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZELDA TRAHAN, Estate of P.G., deceased minor,

Plaintiff

- Appellant,

v. CLAYTON DUBLIER & RICE; et al.,

Defendants

- Appellees. No. 14

- 35366

D.C. No. 2:13

- cv - 02111

- RAJ

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding Argued and Submitted July 13, 2018 Seattle, Washington Before: CLIFTON and NGUYEN, Circuit Judges, and BATTAGLIA, ** District Judge. Zelda Trahan filed suit against Defendants Clayton Dublier & Rice, American Medical Response, Emergency Medical Services Corporation, Envision Healthcare Corpora tion, King County of Washington State, Medic 8 of King

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Anthony J. Batt aglia, United States District Judge for the Southern District of California, sitting by designation. 

# FILED

JUL 30 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 14

- 35366

County Medic One, and Harborview Medical Center of Washington. Ms. Trahan alleges that her daughter, Purpose Goldsmith, while in a medical crisis, was transported to Harborview Medical Center instead o f the hospital closest to her home in violation of 42 U.S.C. § 1395dd, the Emergency Medical Treatment and Active Labor Act (EMTALA) and 42 U.S.C. § 1983. The district court sua sponte dismissed Ms. Trahan’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B ), finding that she had failed to state a claim under the EMTALA, her EMTALA claims were untimely under the Act’s two

- year statute of limitations, and that the EMTALA could not be pursued under § 1983. Ms. Trahan timely appealed. We review de novo the dist rict court’s decision to dismiss Ms. Trahan’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted. See Barren v. Harrington , 152 F.3d 1193, 1194 (9th Cir. 1998). To determine whether a statute may be enforced via § 1983, the Supreme Court has delineated that the “crucial consideration is what Congress intended.” Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 252 (2009) (citation omitted). Thus, the “critical qu estion, then, is whether Congress meant the judicial remedy expressly authorized by [the statute] to coexist with an alternative remedy available in a § 1983 action.” City of Rancho Palos Verdes v. Abrams , 544 U.S. 113, 120

- 21 (2005).3 14

- 35366

Here, “the provisio n of an express, private means of redress” in the EMTALA is “an indication that Congress did not intend to leave open a more expansive remedy under § 1983.” See id. at 121 (“Thus, the existence of a more restrictive private remedy for statutory violations has been the dividing line between those cases in which we have held that an action would lie under § 1983 and those in which we have held that it would not.”). Furthermore, allowing a plaintiff to employ § 1983 as a vehicle to circumvent the EMTALA’s two

- year statute of limitations “would be inconsistent with Congress’ carefully tailored

scheme.” Smith v. Robinson , 468 U.S. 992, 1012

- 1 3 (1984), superseded by statute on other grounds as stated in Fry v. Napoleon C omm. Schs. , 137 S. Ct. 743, 746 (2017). Thus , we conclude that the EMTALA’s comprehensive enforcement scheme demonstrates Congress’ intent that the EMTALA be the exclusive means for remedying discrimination in emergency medical treatment. Nevertheless, even if we had agreed with Ms. Trahan on this issue, Ms. Trahan has no viable claim under the EMTALA. The EMTALA clearly states that if an individual seeks emergency care from a hospital with an emergency room and if that hospital participates in the Medicare program, then “the hospital must provide for an appropriate medical screening examination within the capability of the hospital’s emergency department . . . to determine whether or not an emergency medical condition . . . exists.” 42 U.S.C. § 1395dd(a). Thus, as the4 14

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EMTALA only provides a form of redress against a participating hospital, the only proper Defendant in this matter is Harborview Medical Center. Ms. Trahan argues in her Reply Brief that Defendant Medic One is a “participating hospital” for EMTALA purp oses. However, as this argument was first raised in her Reply Brief, it is waived. Eberle v. City of Anaheim , 901 F.2d 814, 818 (9th Cir. 1990). Furthermore, we find this argument meritless as Medic One is an ambulance transport company and the EMTALA is clear that it only applies to participating hospitals with an emergency department. See Eberhardt v. City of Los Angeles , 62 F.3d 1253, 1255 (9th Cir. 1995) (highlighting that the EMTALA was enacted to address the issue of hospitals “dumping” patients who

were u nable to pay by refusing to provide them emergency medical treatment or transferring them before their medical condition is stabilized). As to Harborview, Ms. Trahan’s complaint does not adequately allege that Harborview provided her daughter a substanda rd medical screening examination. See Jackson v. East Bay Hosp. , 246 F.3d 1248, 1256 (9th Cir. 2001) (explaining that a medical screening is appropriate “if it provides a patient with an examination comparable to the one offered to other patients presentin g similar symptoms [

. ] ”) (citation omitted) ; see also Vargas v. Del Puerto Hosp. , 98 F.3d 1202, 1205 (9th Cir. 1996) (explaining that a merely slight or de minimis deviation from a hospital’s screening policy is insufficient to establish a violation of the EMTALA).5 14

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Moreover, Ms. Trahan does not allege that Harborview directed Medic 8 to another hospital. See Arrington v. Wong , 237 F.3d 1066, 1072 (9th Cir. 2001) (finding that a defendant hospital could have violated the EMTALA by diverting the plaintiff in a non - hospital owned ambulance to a more distant facility when it was not alleged that it was in diversionary status). Furthermore, any allegations revolving around Medic 8's decision to transport Ms. Trahan’s daughter to Harborview, instead of to a close r facility, are outside the scope of the EMTALA as 42 C.F.R. § 489.24(b)(4) requires Ms. Trahan’s daughter to be on hospital property for the EMTALA to be triggered. Accordingly, there are no allegations

that would make H arborview liable under the EMTALA a nd we find any

amendment to be futile. As there is no remaining viable federal claim, we find the district court did not err in declining to take supplemental jurisdiction over Ms. Trahan’s state law causes of action. 28 U.S.C. §1367(c)(3).

AFFIRMED.