NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES S. TATE, Jr., No. 13-15736
Plaintiff - Appellant, D.C. No. 2:09-cv-01748-LDG-
NJK
v.
UNIVERSITY MEDICAL CENTER; MEMORANDUM*
STEVE SISOLAK; TOM COLLINS;
LARRY BROWN; CHRIS
GIUNCHIGLIANI; SUSAN BRAGER;
RORY REID; MEDICAL AND DENTAL
STAFF OF THE UNIVERSITY MEDICAL
CENTER OF SOUTHERN NEVADA;
KATHLEEN SILVER; JOHN
ELLERTON, M.D.; LAWRENCE
WEEKLY; DALE CARRISON, MD,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted June 10, 2015
San Francisco, California
Before: SILVERMAN, GOULD, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
James Tate, Jr., M.D., asserted negligence, contract, and procedural due
process claims against several parties after the termination of his medical staff
membership and privileges at the University Medical Center of Southern Nevada
(“UMC”). He appeals the dismissal by the district court of the negligence claim
and the entry of summary judgment in favor of the defendants on the remaining
claims. We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, reverse in
part, and remand.
1. The UMC bylaws entitle medical staff members to procedural
protections, including notice and a hearing, upon the occurrence of various adverse
actions, including termination of staff membership and privileges or denial of
reapplications for membership and privileges. The bylaws thus create a “legitimate
claim of entitlement” that may not be revoked without due process. Stretten v.
Wadsworth Veterans Hosp., 537 F.2d 361, 366-67 (9th Cir. 1976); see also Lew v.
Kona Hosp., 754 F.2d 1420, 1424 (9th Cir. 1985).
2. The defendants argue Dr. Tate was not deprived of a protected property
interest because he voluntarily resigned from the medical staff. But there was
substantial evidence that Dr. Tate did not resign. Dr. Tate informed the Medical
Executive Committee (“MEC”) that he “had no intention of voluntarily resigning,”
and the minutes from the September 15, 2009 meeting of the UMC trustees list Dr.
Tate as “remove[d] from staff”; his name is not among those of the physicians who
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had “resign[ed].” There was therefore at least a material dispute of fact regarding
whether Dr. Tate resigned, and, accordingly, whether he was deprived of a protected
property interest.
3. The district court erred in determining there could be no municipal
liability against the UMC and its trustees ex officio. The trustees received a
recommendation from the MEC about Dr. Tate’s membership and privileges and
“affirmatively approved” it. Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir. 1999).1
4. The district court concluded that the medical staff is not amenable to suit
under 42 U.S.C. § 1983. Because Dr. Tate did not challenge this finding in his
opening brief, any challenge is waived. All Pac. Trading, Inc. v. Vessel M/V Hanjin
Yosu, 7 F.3d 1427, 1434 (9th Cir. 1993).
5. Dr. Tate also waived any challenge to the district court’s determination
that John Ellerton, M.D., is entitled to qualified immunity, and that Dale Carrison,
D.O., did not participate in any alleged constitutional violation. Id.
6. There was no error in converting the motion to dismiss filed by
Defendant Peter Mansky, M.D., into a motion for summary judgment. See, e.g.,
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The parties may raise on remand whether there is any redundancy in naming both
the UMC and the trustees ex officio as defendants.
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Cunningham v. Rothery (In re Rothery), 143 F.3d 546, 549 (9th Cir. 1998) (“A party
is ‘fairly appraised’ [sic] that the court will in fact be deciding a summary judgement
motion if that party submits matters outside the pleadings to the judge and invites
consideration of them.” (quoting Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528,
1533 (9th Cir. 1985))). And there was no error in granting the motion because there
was no evidence of any agreement between Dr. Mansky and others to deprive Dr.
Tate of a protected property interest without constitutionally adequate procedures.
See Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (“To prove a conspiracy
between private parties and the government under § 1983, an agreement or ‘meeting
of the minds’ to violate constitutional rights must be shown.”). Nor did the district
court abuse its discretion in denying leave to amend the claim against Dr. Mansky;
Dr. Tate failed to identify any new facts that would add merit to the claim. See
Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir. 2011).
7. The district court assumed without deciding that a contract existed
between Dr. Tate and the UMC, but concluded that Dr. Tate’s contract claim failed
because there was no breach and Dr. Tate had released the liability of the UMC.
The bylaws, however, guarantee certain procedures when staff membership and
privileges are terminated; assuming the bylaws are a binding contract, that contract
was breached if Dr. Tate did not voluntarily resign. There is also a material dispute
of fact as to whether this breach is covered by the releases signed by Dr. Tate, which
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refer primarily to liability arising in connection with the application process.
Accordingly, summary judgment on the contract claim was improper.
8. The district court correctly dismissed Dr. Tate’s negligence claim, which
is predicated on breach of the Nevada statutes requiring promulgation of hospital
bylaws, see Nev. Rev. Stat. § 450.160, because those statutes were not violated, see
Ashwood v. Clark Cnty., 930 P.2d 740, 744 (Nev. 1997).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Each party shall bear its own costs.
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