[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15141 JUNE 23, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:09-cv-23372-PCH
TIE QIAN,
llllllllllllllllllllllllllllllllllllllll
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
lllllllllllllllllllllllllllllllllllllll
lDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 23, 2011)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Tie Qian, a counseled appellant who proceeded pro se before the district
court, appeals the district court’s grant of summary judgment to the Secretary of
the Department of Veterans Affairs (“VA”), in his action alleging a termination of
his employment and a revocation of his medical staff privileges without due
process of law. He argues that the district court erred by refusing to grant him
leave to amend his complaint, two weeks before trial, to state a discrimination
claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e-16, based on his national origin. Specifically, he contends that the court did
not afford him the leniency granted to pro se litigants, that it erred by finding that
his discrimination claim and due process claim did not arise from the same
conduct, and that it, consequently, erred by finding that any amendment of his
complaint to state a discrimination claim, which at that point would have
otherwise been time-barred absent a relation back to the original filing, would be
futile. He also contends that the district court erred by finding that, as a temporary
employee, he was not entitled to any procedural due process prior to his
termination or the revocation of his privileges and the subsequent reporting of
such to the National Practitioner Data Bank (“NPDB”).
I.
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“A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief,” and “[e]ach
allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 998, 152 L. Ed.2d
1 (2002) (finding that the petitioner's complaint satisfied Rule 8(a)'s pleading
requirements “because it g[ave] respondent fair notice of the basis for petitioner's
claims”). A complaint must also “state a claim to relief that is plausible on its
face,” however. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. ––––, ––––, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009). The
complaint must include enough facts “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
A federal court must liberally construe pro se pleadings. Albra v. Advan,
Inc., 490 F.3d 826, 829 (11th Cir. 2007). However, even liberal pleading
standards do “not afford plaintiffs with an opportunity to raise new claims at the
summary judgment stage.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,
1314 (11th Cir. 2004). “At the summary judgment stage, the proper procedure for
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plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.
R. Civ. P. 15(a). A plaintiff may not amend h[is] complaint through argument in a
brief opposing summary judgment.” Id. at 1315.
“We review the district court’s refusal to grant leave to amend for abuse of
discretion, although we exercise de novo review as to the underlying legal
conclusion that an amendment to the complaint would be futile.” SFM Holdings,
Ltd. v. Banc of America Securities, LLC, 600 F.3d 1334, 1336 (11th Cir. 2010)
(citation omitted). An appellant ordinarily is considered to have abandoned any
claim not raised in his initial brief. United States v. Jernigan, 341 F.3d 1273,
1283 n. 8 (11th Cir. 2003).
Rule 15(a) gives a plaintiff the right to amend a complaint once, as of right,
within 21 days of serving it or receiving a responsive pleading or motion to
dismiss. Fed. R. Civ. P. 15(a); Coventry First LLC v. McCarthy, 605 F.3d 865,
869 (11th Cir. 2010) (citation omitted). Otherwise, a party may amend its
pleading only with the opposing party’s consent or the court’s leave, which the
court should freely give when justice so requires. Fed. R. Civ. P. 15(a)(2). When
a district court is moved for leave to amend a complaint, it may deny such a
motion for futility. Coventry, 605 F.3d at 870 (citation omitted). “Leave to amend
a complaint is futile when the complaint as amended would still be properly
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dismissed or immediately subject to summary judgment for the defendant.”
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (citation omitted). “An
amendment to a pleading relates back to the date of the original pleading when . . .
[it] asserts a claim that arose out of the conduct, transaction, or occurrence set
out- or attempted to be set out- in the original pleading.” Fed. R. Civ. P. 15(c)(1).
Federal law prohibits discrimination based on national origin with regard to
employees of the federal government. 42 U.S.C. § 2000e-16(a). "Before a
potential plaintiff may sue for discrimination under Title VII, []he must first
exhaust [his] administrative remedies." Wilkerson v. Grinnell Corp., 270 F.3d
1314, 1317 (11th Cir. 2001) (citation omitted). A plaintiff in a Title VII action is
required to file suit within 90 days after receiving a "right-to-sue letter," although
this is not a jurisdictional prerequisite, and a defendant must assert the failure to
file suit within 90 days as a defense. Pinkard v. Pullman-Standard, a Div. of
Pullman, Inc., 678 F.3d 1211, 1218 (11th Cir. 1982) (citations omitted); 42 U.S.C.
§ 2000e-16(c). Once the defendant contests this issue, the plaintiff has the burden
of establishing that he met the 90 day filing requirement. Green v. Union Foundry
Co., 281 F.3d 1229, 1233 (11th Cir. 2002) (citation omitted).
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The district court correctly determined that no national origin discrimination
claim appeared in Qian’s original complaint. The court also correctly concluded
that leave to amend was necessary in order to include such a claim.
The court’s denial of leave to amend was not an abuse of discretion for
several reasons. For example, by the time Qian sought leave to amend, the period
for amendment as of right had passed, discovery had closed, and a trial date was
imminent. Fed. R. Civ. P. 15(a), (c).
The proposed amendment was also futile. Qian had 90 days to file a
discrimination claim, after receiving his "right-to-sue" letter from the EEOC.
Pinkard, 678 F.3d at 1218. The instant complaint was filed within that time
period, but it did not allege discrimination. The proposed amendment also fit none
of the requirements of the "relation back" doctrine. See Fed. R. Civ. P. 15(c).
Specifically, it did not arise from the same transaction or occurrence as his
complaint—which focused solely on a denial of due process. Accordingly, the
district court did not abuse its discretion by denying Qian leave to amend, and it
committed no error in basing that decision upon the legal determination that
Qian’s amendment would have been futile, as a time-barred discrimination claim.
Accordingly, we affirm the district court in this regard.
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II.
We review a district court order granting summary judgment de novo, and
view all of the facts in the record in the light most favorable to the non-moving
party, drawing inferences in his favor. Houston v. Williams, 547 F.3d 1357, 1361
(11th Cir. 2008).
Summary judgment requires the movant to show 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. P. 56(a). “An issue of fact is material if it is a legal element of
the claim under the applicable substantive law which might affect the outcome of
the case. It is genuine if the record taken as a whole could lead a rational trier of
fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc.,
594 F.3d 798, 807 (11th Cir. 2010) (citation and quotation omitted). The
nonmoving party cannot create a genuine issue of material fact through
speculation, conjecture, or evidence that is “merely colorable” or “not significantly
probative.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511, 91 L. Ed.2d 202 (1986); see also Fed. R. Civ. P. 56(e)(2).
The Fifth Amendment provides that “[n]o person shall be . . . deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend. V.
“[C]laims of entitlement, under the due process clause, must be supported by some
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statute, legal rule, or mutually explicit understanding.” Todorov v. DCH
Healthcare Authority, 921 F.2d 1438, 1463 (11th Cir. 1991).
When appropriate, we review a procedural due process claim, first, by
determining whether the plaintiff had a protected liberty or property interest that
was infringed by government action. Ross v. Clayton County, Ga., 173 F.3d 1305,
1307 (11th Cir. 1999) (analyzing procedural due process under the Fourteenth
Amendment); see Dusenberry v. United States, 534 U.S. 161, 167, 122 S. Ct. 694,
699, 151 L. Ed.2d 597 (2002) (the Fourteenth Amendment’s Due Process Clause
and Fifth Amendment’s Due Process Clause prohibit the same activity, with the
Fifth simply applying to federal officials, rather than state). No property right in
government employment exists if an employee is subject to discharge at will and
no showing of good cause is necessary to terminate his employment. See Davis. v.
Mobile Consortium of CETA, 857 F.2d 737, 741 (11th Cir. 1988). However, a
physician’s medical staff privileges can be a property interest protected by the
Constitution’s due process guarantees. El Shahawy v. Harrison, 875 F.2d 1529,
1532-33 (11th Cir. 1989). If we determine that a deprivation of a protected
interest took place, then we must determine if the individual in question received
sufficient process regarding that deprivation. Ross, 173 F.3d at 1307.
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We conclude that, to the extent a cause of action was available to
Qian to remedy the denial of due process, the district court properly granted
summary judgment to the VA.
AFFIRMED.
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