                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ZELDA TRAHAN, Estate of P.G., deceased          No.    14-35366
minor,
                                                D.C. No. 2:13-cv-02111-RAJ
                Plaintiff-Appellant,

 v.                                             MEMORANDUM*

CLAYTON DUBLIER & RICE; et al.,

                Defendants-Appellees.

                   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 Corporation, 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. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
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 of 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 district 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 question, 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).


                                         2                                     14-35366
      Here, “the provision 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, 1012-13 (1984), superseded by statute

on other grounds as stated in Fry v. Napoleon Comm. 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 the


                                          3                                      14-35366
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 purposes. 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 unable 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 substandard 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 presenting 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).


                                          4                                    14-35366
      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 closer 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 Harborview liable under the EMTALA and 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.




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