FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         April 23, 2019
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 ANTHONY D. WARD,

       Plaintiff - Appellant,

 v.                                                        No. 18-1308
                                                  (D.C. No. 1:18-CV-00232-LTB)
 LUTHERAN MEDICAL CENTER;                                    (D. Colo.)
 AMANDA E. KAO, M.D.; KEVIN
 FLYNN, M.D.; BRIDGETT LAURO,
 M.D.; JANE DOE TRAVELER NURSE 1;
 JANE DOE TRAVELER NURSE 2;
 LESLIE PRATT, R.N., (Patient
 Representative); LYNNE WEST, R.N.,
 (Risk Management); SCOTT MINER,
 Medical Director of the ED, FACEP;
 JANE DOE TRIAGE NURSE, RN;
 JOHN/JANE DOE, Clinical Manager of
 the ED; HALL & EVANS, LLC, Law
 Firm; CHAD GILLIAM, Esq.; KRISTINA
 RICHARDS; DEPARTMENT OFFICE OF
 JEFFERSON COUNTY
 COMMISSIONER(S), in their official
 capacity; OFFICE OF COLORADO
 DEPARTMENT OF PUBLIC HEALTH &
 ENVIRONMENT; GRANT WICKLUND,
 President and CEO of Exempla Lutheran
 Medical Center,

       Defendants - Appellees.
                      _________________________________

                                ORDER AND JUDGMENT*

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
                       _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                 _________________________________

      Anthony Ward, proceeding pro se,1 appeals the dismissal of the civil suit he

filed under 42 U.S.C. § 1983, the Privacy Act, the Emergency Medical Treatment and

Active Labor Act, and state law. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we affirm in part, reverse in part, and remand.

                                   I. Background

      On October 10, 2016, Mr. Ward sought emergency medical treatment at

Lutheran Medical Center (“Lutheran”) in Jefferson County, Colorado, for abdominal

pain, diarrhea, nausea, and difficulty breathing, which he attributed to food poisoning

or an accidental drug overdose. Hospital personnel performed an EKG and a CT scan

before discharging him. Within eight hours of his discharge, Mr. Ward was admitted

to Denver Health Medical Center in acute renal failure.

      In June 2017, Mr. Ward filed a grievance with Lutheran regarding the

treatment he received on October 10, 2016. In July 2017, he contacted the Colorado

Department of Public Health and the Environment (CDPHE) to complain about the




estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
       Because Mr. Ward is proceeding pro se, we construe his filings liberally, but
we do not act as his advocate. Yang v. Archuleta, 

, 927 n.1 (10th Cir.
2008).
                                           2
treatment, how his grievance was handled, and the denial of his requests for access to

the hospital’s operating procedures, insurance information, and legal counsel.

      On January 29, 2018, Mr. Ward filed this suit against Lutheran, multiple

doctors and nurses involved in his treatment, hospital staff and legal counsel who

reviewed his grievance, the Jefferson County Commissioners, and the CDPHE. He

amended his complaint once as a matter of course and once in response to a

magistrate judge’s order that he cure pleading deficiencies.

      In his second amended complaint, the operative complaint here, Mr. Ward

claimed that (1) the hospital and its agents and employees violated his right to equal

protection under the Fourteenth Amendment and the Emergency Medical Treatment

and Active Labor Act (EMTALA); (2) Lutheran’s representatives and legal counsel

who handled his grievance violated ethics rules in violation of 42 U.S.C. § 1983 and

the Privacy Act; and (3) the Jefferson County Commissioners should enact laws

forcing Lutheran to provide better care to minorities and drug patients. He requested

money damages in the “maximum amount recoverable for all malpractice claims,

1983 and emotional duress.” R. Vol. 2 at 416.

      The district court reviewed the second amended complaint sua sponte under

28 U.S.C. § 1915(e)(2)(B). It dismissed Mr. Ward’s § 1983 claims, holding that

(1) all but two of the defendants were non-state actors who could not be sued under

§ 1983, and Mr. Ward had not plausibly alleged that the non-state defendants had

acted in concert with government officials to violate his constitutional rights;

(2) Jefferson County could not be liable under § 1983 because Mr. Ward had not

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alleged that any county employee had violated his constitutional rights; and (3) the

CDPHE was immune from suit for damages under the Eleventh Amendment.

      The district court dismissed the Privacy Act claim holding that 5 U.S.C.

§ 522a did not apply because it governs the disclosure of personal records by a

federal agency, Mr. Ward’s records did not originate from a federal agency, and he

had not named any federal agencies as defendants.

      Finally, the district court dismissed the EMTALA claim, holding the

negligence and malpractice allegations against Lutheran and its providers were not

actionable because the statute does not provide a remedy for negligence or medical

malpractice.

      In sum, the district court dismissed the claims against the CDPHE without

prejudice based on Eleventh Amendment immunity, dismissed the remaining federal

claims as legally frivolous, and declined to exercise supplemental jurisdiction over

the state law claims. Mr. Ward timely appealed.

                                   II. Discussion

      We review the district court’s determination of Eleventh Amendment

immunity de novo. Arbogast v. Kansas, Dep’t of Labor, 

, 1181

(10th Cir. 2015). “We generally review a district court’s dismissal for frivolousness

under § 1915 for abuse of discretion[, but] where the frivolousness determination

turns on an issue of law, we review the determination de novo.” Fogle v. Pierson,

, 1259 (10th Cir. 2006) (citation omitted). With the exception of

Mr. Ward’s EMTALA claim, we affirm the decision of the district court.

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                       A. Section 1983 and Privacy Act Claims

      On appeal, Mr. Ward does not present any argument regarding the district

court’s dismissal of his § 1983 claims against the county and the CDPHE or the

dismissal of his Privacy Act claims so he has waived any challenge to those rulings.2

Jordan v. Bowen, 

, 736 (10th Cir. 1987) (noting that issues not raised in

the opening brief are waived).

      Mr. Ward does, however, argue that the private party defendants can be held

liable as a state actors under § 1983. He contends, in particular, that because the

state regulates and funds Lutheran, it can be a § 1983 defendant. We disagree. State

regulation and government funding are not enough for liability. See Blum v.

Yaretsky, 

, 1011 (1982) (noting that neither extensive regulation nor

government funding transform private action into government action). The plaintiff

must allege facts showing such a close nexus between the challenged action of the

regulated entity and the state that the action of the regulated entity can be considered

the action of the state itself. 

We agree with the district court that




      2
        Mr. Ward does challenge the magistrate judge’s order to cure pleading
deficiencies insofar as it noted that the “Health Insurance Portability and
Accountability Act of 1996 (HIPAA) . . . does not create a private right of action for
alleged disclosures of confidential medical information.” R. Vol. 2 at 349-50
(internal quotation marks omitted). But Mr. Ward did not object to the magistrate
judge’s order in the district court. Nor did he reassert a HIPAA violation in his
second amended complaint. It is well-settled that we cannot consider a challenge to a
magistrate judge’s nondispositive order unless the party requesting review first
objected to the order in the district court. Pippinger v. Rubin, 

, 533
(10th Cir. 1997).
                                            5
Mr. Ward’s allegations against Lutheran and the other nonstate actors do not

establish state action.

                                   B. EMTALA Claim

       By contrast, we are not convinced that Mr. Ward’s EMTALA claim is entirely

frivolous. “[A] complaint, containing as it does both factual allegations and legal

conclusions, is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 

, 325 (1989). The frivolous standard applies to

claims “based on an indisputably meritless legal theory” or claims “describing

fantastic or delusional scenarios,” 

but not to claims that merely fail to

state a claim upon which relief can be granted, 

       Courts have recognized a private right of action under EMTALA to allege

violations of two primary obligations of participating hospitals. Phillips v. Hillcrest

Med. Ctr., 

, 796 (10th Cir. 2001). “First, the hospital must conduct an

initial medical examination to determine whether the patient is suffering from an

emergency medical condition.” 

an emergency medical condition

exists, the hospital must stabilize the patient before transfer or release. Id.; see also

Delaney v. Cade, 

, 392 (10th Cir. 1993) (noting that a hospital can

violate the EMTALA “by failing to stabilize a patient’s emergency medical condition

before transferring or releasing the patient”). An EMTALA complaint must allege a

violation of at least one of these obligations. The statute does not provide a remedy

for negligence or medical malpractice. Repp v. Anadarko Mun. Hosp., 

,

522 (10th Cir. 1994).

                                            6
      Mr. Ward’s complaint is replete with allegations of negligence and medical

malpractice. The district court correctly dismissed his EMTALA claim as legally

frivolous to the extent it was based on these allegations. But the complaint also

repeatedly alleges failure of medical staff to stabilize his blood pressure before

discharge, resulting in acute renal failure. See, e.g., R. Vol. 2 at 398 (“Mr. Ward’s

blood pressure was never stabilized which deprived the plaintiff of equal protection

of the law pursuant to . . . [the EMTALA]”); 

Plaintiff/Patient Ward[’]s

intake blood pressure 133/52 (hypotension) and this is Patient Ward[’]s blood

pressure at the time of discharge 143/77 (hypertension).”); 

pressure at discharge denotes stage 1 hypertension which leads to stroke, heart

failure, heart attack and kidney failure to name a few conditions [and]

Plaintiff/Patient Ward experienced a few of these conditions just a few hours after

leaving Lutheran . . . .”); 

(“Defendant(s) unidentified nurse one and two …

knew plaintiff[’]s blood pressure was never stabilized.”).

      These allegations do not rest on “an indisputably meritless legal theory” under

the EMTALA. To the extent Mr. Ward alleged an EMTALA violation for failure to

stabilize his blood pressure before discharge, the district court erred in dismissing the

claim against Lutheran as legally frivolous.3




      3
        The EMTALA does not provide a private right of action against individual
physicians or other hospital personnel. 

.
                                            7
                                    III. Conclusion

      We reverse the district court’s dismissal of Mr. Ward’s EMTALA claim

against Lutheran as legally frivolous to the extent it is based on an alleged failure to

stabilize an emergency medical condition. We remand this claim for further

proceedings consistent with this decision. Because we remand this federal claim, the

district court should revisit its decision to decline supplemental jurisdiction over

Mr. Ward’s state law claims. See Baca v. Sklar, 

, 1222 n.4 (10th Cir.

2005) (directing district court to reconsider decision to decline supplemental

jurisdiction over state law claims in light of remand of federal claim). We affirm the

district court’s decision in all other respects. Mr. Ward’s motion for leave to proceed

on appeal without prepayment of costs and fees is granted.


                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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