Kriley v. Browne

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ALENA KRILEY, No. 25-2891 D.C. No. Plaintiff - Appellant, 2:21-cv-01176-JHC v. MEMORANDUM* CHARLIE BROWNE, MD, All Women's Care; JAMIE PHIFER, MD, All Women's Care; ALL WOMEN'S CARE; DOES, Staff Members, All Women's Care,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington John H. Chun, District Judge, Presiding

Submitted July 31, 2026**

Before: MURGUIA, Chief Judge, and WARDLAW and JOHNSTONE, Circuit Judges.

Alena Kriley appeals the district court’s denial of her request to appoint pro

bono counsel, denial of her request to extend various filing deadlines, and grant of

* 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). summary judgment for Defendants on all claims. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

1. We review for abuse of discretion a district court’s denial of an

extension of time under Federal Rule of Civil Procedure 6(b). Ahanchian v. Xenon

Pictures, Inc., 624 F.3d 1253, 1258 (9th Cir. 2010).

The district court did not abuse its discretion in denying Kriley’s second

motion to extend the expert disclosure deadline under Rule 6(b). See id. Kriley’s

reason for the extension—that she had “received from Defendants only a portion of

her records that Defendants have stated they want to obtain from Kriley’s medical

providers”—did not establish good cause. See Fed. R. Civ. P. 6(b)(1)(A). Kriley

already possessed the medical records necessary for an expert to evaluate her

claims based on the alleged breach of the standard of care and lack of informed

consent. The district court also previously granted a four-month extension of the

same deadline, and Kriley made no showing that she diligently attempted to retain

or disclose an expert during that extension period.

The district court also did not abuse its discretion in denying Kriley’s

second, third, and fourth motion for extension of the time to respond to

2 25-2891 Defendants’ motion for summary judgment.1 See Ahanchian, 624 F.3d at 1258.

Kriley’s reasons for seeking these extensions shifted from motion to motion but

none explained why she was unable to draft a response brief. The district court also

reasonably found that further delay would prejudice Defendants and expend

additional judicial resources where Kriley lacked the expert testimony necessary to

establish her claim. That Kriley presented arguments against summary judgment in

at least one of these motions further undermined her claim that additional time was

needed to formulate a response. The district court acted well within its discretion in

denying all three motions.

2. We review de novo a district court’s grant of summary judgment.

Bros. Mkt. LLC No. 2 v. United States, 172 F.4th 758, 764 (9th Cir. 2026).

The district court properly granted summary judgment for Defendants.

Under Washington law, a plaintiff seeking damages “for injury occurring as a

result of health care” must seek relief under Chapter 7.70 of the Revised Code of

Washington (“RCW”). Wash. Rev. Code Ann. § 7.70.010. Because Kriley’s claims

1 Kriley filed her third and fourth motions after the response deadline, which means that Rule 6(b)(1)(B)’s excusable neglect—rather than good cause—standard applied. Fed. R. Civ. P. 6(b)(1)(B); see Pincay v. Andrews, 389 F.3d 853, 855 (9th Cir. 2004) (en banc). The district court, however, did not specifically state whether it analyzed these untimely motions under the excusable neglect or good cause standard. Even if the district court applied the more lenient good cause standard, see United States v. Navarro, 800 F.3d 1104, 1109 (9th Cir. 2015), it did not abuse its discretion.

3 25-2891 for gross negligence, fraudulent misrepresentation, fraudulent concealment, undue

influence, negligent misrepresentation, and negligent concealment simply

repackaged the same alleged health-care injury under different legal theories, the

district court correctly held that they were duplicative of the exclusive remedy

provided by RCW 7.70.

Kriley’s claims for wrongful death, negligence, lack of informed consent,

and loss of chance each required competent expert testimony to establish breach of

the standard of care, proximate causation, or the materiality of an undisclosed risk.

See Harris v. Groth, 663 P.2d 113, 117–19 (Wash. 1983) (en banc); see also Wash.

Rev. Code Ann. §§ 7.70.040(1), 050(3). Because Kriley failed to disclose an expert

witness, the record contains no evidence from which a jury could find breach,

causation, or the requisite materiality. Further, Kriley could not maintain her

wrongful death claim because Washington law permits only the personal

representative of a decedent’s estate to bring such an action, and Kriley was not the

personal representative of her unborn child’s estate. See Beal for Martinez v. City

of Seattle, 954 P.2d 237, 240 (Wash. 1998) (en banc).

Lastly, Kriley’s medical battery and lack of consent claims failed as a matter

of law as it is undisputed that Kriley signed a written consent form before the

procedure at issue. Because a signed consent form is prima facie evidence that

consent was given, Wash. Rev. Code Ann. § 7.70.060(1), and Kriley produced no

4 25-2891 evidence to rebut the presumption of consent, the district court properly granted

summary judgment on these claims, see Bundrick v. Stewart, 114 P.3d 1204, 1208

(Wash. Ct. App. 2005).

3. The district court did not abuse its discretion in denying Kriley’s

second and third motions for appointment of counsel. See Palmer v. Valdez, 560

F.3d 965, 970 (9th Cir. 2009); 28 U.S.C. § 1915(e)(1). Kriley did not demonstrate

“exceptional circumstances” to justify appointment of counsel under 28 U.S.C.

§ 1915(e)(1). Palmer, 560 F.3d at 970 (citation omitted). She did not show a

“likelihood of success on the merits” of her claims, and her numerous and detailed

filings show that she could “articulate [her] claims pro se in light of the complexity

of the legal issues involved.” See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

1983) (per curiam).

AFFIRMED.

5 25-2891