NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAKENZIE PAULY, No. 22-16655

Plaintiff-Appellant, D.C. No. 3:18-cv-05387-SI

v. MEMORANDUM*

STANFORD HEALTH CARE, FKA

Stanford Hospital and Clinics,

Defendant-Appellee,

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Submitted March 18, 2024** San Francisco, California

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

Plaintiff-Appellant Makenzie Pauly appeals pro se from the district court’s

summary judgment in favor of Defendant-Appellee Stanford Health Care (SHC) on

Pauly’s five claimed violations of the federal Emergency Medical Treatment and

* 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). Active Labor Act of 1986, 42 U.S.C. § 1395(dd) (EMTALA). We have jurisdiction

pursuant to 28 U.S.C. § 1291. “We review de novo a district court’s ruling on a

summary judgment motion.” Cottonwood Env. L. Ctr. v. Edwards, 86 F.4th 1255,

1260 (9th Cir. 2023). “We review the district court's rulings concerning discovery,

including the imposition of discovery sanctions, for abuse of discretion.” See

Goodman v. Staples The Off. Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011).

We affirm.

1. The district court did not err in granting summary judgment for SHC on

Pauly’s five EMTALA claims.

First, Dr. Gates’s unrebutted notes and testimony, showing that the specialized

pediatric hospital did not have space available for Pauly, defeated the alleged

violation of EMTALA’s so-called “reverse-dumping” provision, 42 U.S.C.

§ 1395dd(g). Dr. Gates testified in the capacity of a lay witness, not an expert, based

on his personal experience inquiring whether the pediatric hospital had available

capacity in December 2008. See Goodman, 644 F.3d at 819 (“Generally speaking,

treating physicians are . . . a species of percipient witness. They are not specially

hired to provide expert testimony; rather, they are hired to treat the patient and may

testify to and opine on what they saw and did.”).

Second, Dr. West’s unrebutted declaration, opining that SHC’s medical

screening was appropriate, defeated Pauly’s second claim, alleged violation of

2 EMTALA’s requirement to provide an appropriate medical screening, 42 U.S.C.

§ 1395dd(a). Dr. West’s declaration met the “low” bar for relevance because it

“logically advance[d] a material aspect” of SHC’s case, Messick v. Novartis Pharms.

Corp., 747 F.3d 1193, 1196 (9th Cir. 2014), and Pauly has not challenged Dr. West’s

extensive qualifications or provided any other appropriate basis on which to question

Dr. West’s reliability.

Third, 42 U.S.C. § 1395dd(d)(1)(C) outlines an exception to a circumstance

when a civil monetary penalty will not be imposed under EMTALA, not a separate

claim. See Logan v. U.S. Bank Nat’l Ass’n, 722 F.3d 1163, 1173 (9th Cir. 2013)

(holding that when a court is unable to “infer a congressional intent to create a private

right of action from the language of the statute, the statutory structure, or any other

source,” the court must conclude that no private right of action exists).

Finally, the district court correctly granted summary judgment for SHC on

Pauly’s fourth and fifth claims, alleged violations of EMTALA’s stabilization and

transfer requirements, 42 U.S.C. § 1395dd(b)(1). SHC presented evidence that

Pauly’s pain had lasted for more than two months, she was given extensive testing

with negative results, and her vital signs were stable. Pauly does not offer any

evidence suggesting that her health or bodily functions were reasonably expected to

be in serious jeopardy without treatment or that SHC was aware of such. See

Jackson v. E. Bay Hosp., 246 F.3d 1248, 1257 (9th Cir. 2001) (“[A]ctual knowledge

3 of the emergency medical condition by the hospital [is] a condition precedent to”

EMTALA’s stabilization and transfer requirements.) In fact, Pauly’s condition did

not worsen, she did not require additional emergency treatment, and her symptoms

eventually subsided. Because Pauly did not present any evidence rebutting SHC’s

evidence, the district court properly granted summary judgment for SHC. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

2. The district court did not abuse its discretion in denying Pauly’s motions to

compel. First, Pauly does not show why the district court’s denial of her request for

third party records, peer review reports, and a complete copy of her medical records

was in error or that the denial caused her prejudice. See Laub v. U.S. Dep’t of

Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“A district court is vested with broad

discretion to permit or deny discovery, and a decision to deny discovery will not be

disturbed except upon the clearest showing that the denial of discovery results in

actual and substantial prejudice to the complaining litigant”). Second, Pauly did not

raise her argument that SHC failed to produce census reports before the district court.

Therefore, we consider it waived. See Momox-Caselis v. Donohue, 987 F.3d 835,

842 (9th Cir. 2021). Third, the rest of the evidence Pauly claims she was denied—

SHC’s record-retention policy, the original medical transfer program call record, a

recording of the transfer call, SHC’s EMTALA policy for pediatric pain patients,

and a medical records audit trail—were either provided to her during discovery or

4 any issues related to production were addressed by both the magistrate judge

presiding over discovery and the district judge. In sum, Pauly had multiple

opportunities to contest SHC’s discovery compliance, two judges carefully

considered Pauly’s arguments, and both judges ultimately rejected them. On appeal,

she does not demonstrate why those decisions were incorrect. Under these

circumstances, Pauly does not offer this court any basis for setting aside the district

court’s evidentiary determinations. See In re Anonymous Online Speakers, 661 F.3d

1168, 1176 (9th Cir. 2011) (stating that “a district court has wide latitude in

controlling discovery and that decisions governing discovery are highly fact-

intensive”) (internal quotation marks and citation omitted).

3. The district court did not abuse its discretion in denying Pauly’s motion for

discovery sanctions because Pauly failed to demonstrate any sanctionable conduct.

See Fed. R. Civ. P. 37(c)(1) (describing possible sanctions for a party’s failure to

disclose); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th

Cir. 2001) (“[W]e give particularly wide latitude to the district court’s discretion to

issue sanctions under Rule 37(c)(1).”) (internal citation omitted).

AFFIRMED.

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