PS5-024                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-4049
                                      ____________

                                  ROBERT MCCANN,
                                              Appellant

                                             v.

                      KENNEDY UNIVERSITY HOSPITAL, INC.
                       __________________________________

                     On Appeal from the United States District Court
                                for the District of New Jersey
                               (D.C. Civ. No. 1-12-cv-01535)
                      District Judge: Honorable Jerome B. Simandle
                       __________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 9, 2014

              Before: CHAGARES, JORDAN and GARTH, Circuit Judges

                               (Filed: December 19, 2014)
                                      ____________

                                        OPINION*
                                      ____________


PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
           Appellant Robert McCann appeals from an order of the District Court granting

summary judgment to Kennedy University Hospital. For the reasons that follow, we will

affirm.

          McCann filed suit pro se in the United States District Court for the District of New

Jersey, alleging violations of the Emergency Medical Treatment and Active Labor Act

(“EMTALA”), 42 U.S.C. § 1395dd(a), by the hospital’s emergency room staff on

December 21 and December, 22, 2011. In a one-paragraph complaint, McCann stated

that he came to the hospital in severe pain, at approximately 11:00 p.m., but because he

was uninsured, treatment was refused, and/or significantly delayed. In his complaint he

stated that he was “in excruciating pain” and was left “lying on the floor,” where “staff

walked over him without offering any assistance.” McCann sought money damages in

the amount of $450,000. After the hospital answered the complaint and denied the

allegations, discovery ensued. McCann was deposed, and eventually the hospital

complied with McCann’s discovery requests. Specifically, the hospital provided McCann

with copies of emergency room medical records from his treatment on both December 21

and December 22. Although the records indicated that McCann spent the night in the

emergency room before finally being discharged, nothing in those records indicated that

he had been left lying on the floor of the emergency room.

          As discovery progressed further, McCann filed a motion for sanctions due to the

hospital’s delay in providing him discovery and a motion for the alleged spoliation of

emergency room videotape recordings from December 21 and December 22. In response

to a discovery request, counsel for the hospital had advised McCann that the videotape

                                                2
recordings from the dates of his visit to the emergency room no longer existed because as

a general practice they are recorded over every 21 days due to limited hard drive space.

McCann argued in his spoliation motion that the hospital should have known that the

videotape recordings were discoverable material evidence and should have sought to

preserve them. The hospital responded to McCann’s motion by arguing that it had no

duty to preserve the videotape recordings because it did not know about McCann’s

complaints until it was contacted by the state Department of Health in March 2012, by

which time they had been recorded over.

       The Magistrate Judge to whom the case was referred, see 28 U.S.C. §

636(b)(1)(A), granted McCann’s request for money sanctions for the discovery delay and

awarded him $406.25, commenting that “[t]his case should have been straightforward

litigation but it has become unduly complicated and drawn out, primarily due to … [the

hospital’s] disproportional discovery requests, its failure to timely produce relevant

discovery, and its practice of producing discovery in dribs and drabs.” See Magistrate

Judge’s Order, 1/23/14, Docket Entry No. 95. The Magistrate Judge noted that McCann

had argued that he put the hospital on notice of his intent to sue almost immediately after

his visit to the emergency room, and that the hospital, although initially denying that it

had notice, eventually produced in discovery a copy of the email McCann sent to the

hospital on December 23, 2011, and also eventually produced several emails that hospital

personnel had exchanged among themselves referring to McCann’s December 23 email.

       In an order filed on January 24, 2014, the Magistrate Judge denied McCann’s

motion for sanctions due to spoliation of the emergency room videotape recordings. The

                                              3
Magistrate Judge acknowledged the potential relevance of the recordings, but noted that

the hospital’s duty was limited to preserving what it knows, or reasonably should know,

will likely be requested in reasonably foreseeable litigation. In McCann’s case, and

based on his December 23 email, it was not unreasonable for the hospital to believe that

he intended to sue based on the care he was provided in his treatment room which he

believed was inferior to that which would have been provided to someone with

insurance.1 The Magistrate Judge reasoned that videotape recordings of the emergency

room lobby were not relevant to this particular complaint. See McCann v. Kennedy

University Hosp., Inc., 2014 WL 282693, at *6 (D.N.J. January 24, 2014) (“While it is

clear that plaintiff’s December 23, 2011 email triggered defendant’s duty to preserve

relevant evidence concerning [his] claims for substandard medical care, … prior to the

January 11/12, 2012 tape-over of the emergency room tapes, it was not reasonably

foreseeable that the videotapes would be requested in connection with the claims raised

in plaintiff’s email … due to the fact that the focus of [the] litigation threat was … his

medical treatment … [and] not what happened in the emergency room lobby.”).2 The

Magistrate Judge also concluded that there was no evidence of bad faith on the hospital’s

part. See id. at *7. After the Magistrate Judge denied McCann’s motion for

reconsideration, he appealed to this Court, see C.A. No. 14-2968. We dismissed the

appeal as jurisdictionally defective because the order was not final for purposes of 28

1
  This email stated in pertinent part: “This correspondence shall serve as my notification
of my intent to sue your hospital, Dr. Constantine Tsgratos and Nurse Diana Hollop for
discrimination and their unfair and inhumane treatment of me while in your hospital, and
for pain and suffering.”
2
  Due to privacy concerns, there are, of course, no cameras in the treatment rooms.
                                              4
U.S.C. § 1291. We also noted that McCann did not first seek the District Court’s review

of the orders. 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any

pretrial matter under this subparagraph (A) where it has been shown that the magistrate

judge’s order is clearly erroneous or contrary to law.”). After we dismissed his appeal as

jurisdictionally defective, McCann did not seek review of these discovery orders from the

District Court. McCann did request that the Magistrate Judge recuse himself. The

Magistrate Judge declined this request and McCann did not appeal to the District Court.

       At the close of discovery, the hospital moved for summary judgment. McCann

submitted written opposition to the motion. The District Court then awarded summary

judgment to the hospital in an order entered on September 11, 2014. The District Court

noted that relief under EMTALA is limited; it does not create a federal cause of action for

malpractice, and, thus, if there was no genuine dispute over a material fact concerning

whether the hospital provided McCann with appropriate medical screening to determine

whether he presented with an emergency medical condition, then summary judgment for

the hospital was warranted. The District Court found that the summary judgment

evidence established that McCann, who ultimately was diagnosed with and treated for a

perianal abscess, was screened in accordance with the hospital’s regular procedures and

was treated no differently than any other patient in the hospital’s emergency room who

presented with similar complaints.

       McCann appeals. We have jurisdiction under 28 U.S.C. § 1291. In his Informal

Brief, McCann argues that the District Court incorrectly decided the facts of his case by

ignoring that the hospital destroyed critical evidence (the videotape recordings) that

                                             5
would have supported his claims; ignoring the state Department of Health’s citation of

wrongdoing, and awarding him only $401.00 in sanctions when the hospital improperly

delayed discovery. See Informal Brief, at ¶ 5. McCann also contended that the

Magistrate Judge was biased in favor of the hospital and thus should have recused

himself.

       We will affirm. Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. Pro. 56(a). “Only disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of summary

judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the

record taken as a whole could not lead a rational trier of fact to find for the non-moving

party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). We review a District Court’s grant of summary

judgment de novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007).

       EMTALA governs the examination and treatment for emergency medical

conditions and requires a hospital with an emergency department to perform, to the extent

of its capability, a medical screening examination of any individual who comes to the

emergency department to determine whether or not the individual presents an

“emergency medical condition.” 42 U.S.C. § 1395dd(a). An “emergency medical

condition” manifests itself “by acute symptoms of sufficient severity (including severe

pain) such that the absence of immediate medical attention could reasonably be expected

to result in: (i) placing the health of the individual…in serious jeopardy; (ii) serious

                                              6
impairment to bodily functions; or (iii) serious dysfunction of any bodily organ or part.”

Id. at § 1395dd(e)(1)(A)(i)-(iii). Under EMTALA, a hospital is prohibited from delaying

an appropriate medical screening in order to inquire about an individual’s insurance

status, see id. at § 1395dd(h). The statute requires hospitals to provide medical screening

and stabilizing treatment to individuals seeking emergency care for emergency medical

conditions without regard to the patient’s insurance status. See Torretti v. Main Line

Hosps., Inc., 580 F.3d 168, 173 (3d Cir. 2009) (EMTALA prohibits the practice known

as “patient dumping”). It provides monetary penalties as a means of enforcement, see id.

at § 1395dd(d)(1)(A), and “[l]iability is determined independently of whether any

deficiencies in the screening or treatment provided by the hospital may be actionable as

negligence or malpractice.” Torretti, 580 F.3d at 174.

       The hospital, through the medical records, established that McCann presented at

the emergency room at 10:32 p.m. on December 21, 2011, and was seen 14 minutes later

at 10:46 p.m. by a triage nurse. The triage notes indicate that McCann complained of

rectal bleeding which began one week prior. McCann also complained that he injured his

right knee the previous Wednesday while at a casino. At 10:49 p.m., three minutes after

his triage evaluation, another nurse completed a head-to-toe assessment, noting that

McCann described intermittent aching in his lower back, which he rated as “6” out of

“10” on a pain scale, as well as rectal bleeding and pain from his buttocks to his lower

back. He also complained of pain in his right knee. At 12:08 a.m. on December 22,

2011, a nurse noted that McCann was at the entrance of the emergency room fully

clothed. He was angry because of the delay in treatment. Twenty-four minutes later, at

                                             7
12:34 a.m., McCann was readmitted with the same complaints. At 12:44 a.m., a triage

nurse again recorded his vital signs. This nurse noted that McCann complained of severe

hemorrhoid pain, and also right knee pain from a slot machine falling on his knee three

days prior. At 1:39 a.m., an x-ray of McCann’s knee was completed, which showed no

acute injury. At 3:26 a.m., McCann was examined by Dr. Costandinos Tsagaratos, who

treated him for an anal fissure. Dr. Tsagaratos notified the attending physician, Dr. Karen

D. Sobers–Brown, about McCann’s condition and she eventually treated McCann for a

perianal abscess. She noted “purulent drainage” and she “expressed the remaining

contents” of the abscess and applied saline to the area, after which McCann felt better.

She prescribed pain medication and antibiotics. Shortly thereafter, McCann was

discharged around 7:00 a.m. on December 22, 2011 in stable condition.

       The District Court concluded, and we agree, that all of this care amply

demonstrated for summary judgment purposes that the hospital’s screening examination

was not so cursory that it would fail “to identify acute and severe symptoms that alert the

physician of the need for immediate medical attention to prevent serious bodily injury.”

Jackson v. East Bay Hosp., 246 F.3d 1248, 1256 (9th Cir. 2001). The uncontradicted

evidence in the record supports the District Court’s determination that there was no

genuine issue for trial with respect to whether the emergency room staff provided an

appropriate medical screening to determine whether McCann was experiencing an

emergency medical condition, and whether they then supplied stabilizing medical

treatment. Importantly, McCann did not argue or show that his perianal abscess was an

“emergency medical condition.” See 42 U.S.C. § 1395dd(e)(1)(A).

                                             8
       Once the moving party has properly supported its motion for summary judgment,

the nonmoving party must “do more than simply show there is some metaphysical doubt

as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. McCann did not

present any evidence that the screening procedures applied to him were substandard

and/or applied in a manner that discriminated against him on the basis of his self-pay

status. In his Informal Brief, he contends that the District Court failed to consider a state

Department of Health document in awarding summary judgment to the hospital that, in

his view, establishes a violation of EMTALA. The District Court noted McCann’s

reference to this document and his assertion that it was “in the possession of the court.”

McCann v. Kennedy University Hosp., Inc., 2014 WL 4541534, at *1 n.1 (D.N.J.

September 11, 2014). The District Court went on to hold that the rules of civil procedure

require the opponent of a motion for summary judgment to cite evidence in the record in

support of his argument, and that McCann’s mere reference to the Department of Health

document was insufficient to satisfy the rules of civil procedure. See id. (“The Court is

not required to sift through Plaintiff’s previous filings to identify these documents, which

may or may not exist, where Plaintiff has provided no citations to facts that would be

admissible in evidence, as required by Rule 56(c), Fed.R.Civ.P.”).

       We cannot agree with McCann that the District Court erred in declining to

consider the state Department of Health document under the circumstances presented

here. Rule 56(c)(1)(A) provides that “[a] party asserting that a fact … is genuinely

disputed must support the assertion by: (A) citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or

                                              9
declarations, stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Fed. R. Civ. Pro. 56(c)(1)(A).

The rule specifically provides that, if these materials are not cited, the court “may” but

“need not” consider them. Fed. R. Civ. Pro. 56(c)(3). McCann did not attach the state

Board of Health document to his opposition to the hospital’s motion for summary

judgment, see Docket Entry Nos. 94, 98, nor did he cite to an item in the record where it

could be found. District Courts are not required to search through the record for evidence

to support a party’s assertion of the existence of a genuine issue of material fact. See

American Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896 (5th Cir.

2013) (“Rule 56 does not impose upon the district court a duty to sift through the record

in search of evidence to support a party’s opposition to summary judgment.”). We note

that, in this case, McCann attached the Department of Health document to his original

opposition to the hospital’s motion for summary judgment, see Docket Entry No. 70-2.

Unfortunately, the hospital withdrew its original motion for summary judgment because

it was filed before the close of discovery, and when the hospital refiled the motion,

instead of relying on his original opposition, McCann filed new opposition, see Docket

Entry Nos. 94, 98, and omitted the document. Accordingly, the District Court correctly

concluded that the document was never made part of the summary judgment record and

thus it cannot demonstrate the existence of a genuine issue for trial, see American Family

Life Assur. Co., 714 F.3d at 897.3


3
  In any event, we doubt that the document would have persuaded the District Court that
there was a genuine factual dispute concerning whether EMTALA had been violated.
                                             10
       We also reject as unpersuasive McCann’s argument that the District Court ignored

that the hospital destroyed critical evidence – the emergency room videotape recordings -

- that would have supported his claim. Here, pursuant to 28 U.S.C. § 636(b)(1)(A), the

Magistrate Judge was authorized to decide nondispositive pretrial matters finally.

McCann’s motion for sanctions due to spoliation of the emergency room videotape

recordings was a nondispositive pretrial matter. Pursuant to Federal Rule of Civil

Procedure 72(a), a party opposed to a magistrate judge’s order may serve and file

objections to the order within 14 days of service of the order. “The district judge in the

case must consider timely objections and modify or set aside any part of the order that is

clearly erroneous or is contrary to law.” Fed. R. Civ. Pro. 72(a). The spoliation motion

was denied by the Magistrate Judge, and McCann did not appeal this order to the District

Court. The matter of the emergency room videotape recordings was thus not properly

before the District Court, and the evidence itself, which no longer existed, obviously was

not part of the summary judgment record. Accordingly, the District Court did not err in

“ignoring” that the hospital did not preserve the emergency room videotape recordings

from December 21 and December 22 in awarding summary judgment to the hospital. Cf.

According to this report, the Department of Health apparently concluded that McCann’s
right to “expect and receive appropriate assessment, management and treatment of pain,”
as provided for in N.J. Admin. Code § 8:43G-4.1(31) (patient rights enumerated), was
violated in part because he did not receive morphine sulfate for his perianal abscess pain
until 6:55 a.m. on December 22. The issue, however, was not whether the state patient
bill of rights was violated; rather, the issue under the federal EMTALA statute was
whether McCann, who ultimately was diagnosed with and treated for a perianal abscess,
was screened in accordance with the hospital’s regular procedures to determine whether
or not he presented with an “emergency medical condition,” and treated the same as
every other patient in the hospital’s emergency room, including those with health
insurance, who presented with similar complaints.
                                             11
Continental Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 250-51 (3d Cir. 1998)

(party failing to appeal to district court magistrate judge’s order in nondispositive matter

may not raise objection to it on appeal to circuit court).4

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment in favor of the hospital and against McCann.




4
 For similar reasons, we also decline to review the Magistrate Judge’s order awarding
McCann “only” $401 in sanctions for the hospital’s discovery abuses, and the order
denying McCann’s motion to recuse the Magistrate Judge.
                                              12
