James Tate, Jr. v. University Medical Center ( 2012 )

FILED
NOT FOR PUBLICATION JUL 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES S. TATE, Jr., M.D., No. 11-15602
Plaintiff - Appellant, D.C. No. 2:08-cv-01183-LDG-
GWF
v.
UNIVERSITY MEDICAL CENTER OF MEMORANDUM *
SOUTHERN NEVADA; et al.,
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 11, 2012
San Francisco, California
Before: FERNANDEZ, GOULD, and BEA, Circuit Judges.
Plaintiff-Appellant James Tate appeals the district court’s dismissal of
certain claims under Rule 12(b)(6) and grant of summary judgment for Defendant-
Appellees University Medical Center of Southern Nevada et al. (UMC). The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
parties are familiar with the facts underlying the appeal and thus we do not include
them here.
A claim under § 1983 requires allegations “(1) that a person acting under
color of state law (2) committed an act that deprived the claimant of some right,
privilege, or immunity protected by the Constitution or laws of the United States.”
Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991). Tate was not
deprived of a Constitutionally protected property right.
Tate’s argument that his removal from the on-call schedule was a de facto
suspension of Tate’s Constitutionally protected clinical privileges is foreclosed to
Tate by this court’s earlier published order in this case. See Tate v. Univ. Med.
Ctr., 606 F.3d 631, 634 (9th Cir. 2010) (“An employment arrangement is distinct
from clinical privileges: employment is merely one method among many of
exercising clinical privileges at a hospital. . . . Here, Dr. Tate had only an
employment agreement with the hospital to serve as the trauma on-call surgeon.
After termination of that employment, he remained able to exercise his clinical
privileges in other ways, until they were terminated.) 1 This panel is bound by the
earlier panel’s decision. Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997)
(en banc); United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc).
To the extent that Tate’s allegations are not based on a suspension of his
clinical privileges, they must be based on a violation of his due process rights when
his employment as an on-call trauma physician was terminated. For Tate’s due
process claim to be viable, he must have a constitutionally protected property right
in his continued employment at UMC. Under Nevada law, an employee has a
protected property right in his employment when he can only be discharged for
cause—that is, when employment is not at will. State ex rel. Sweikert v. Briare, 94
Nev. 752, 756 (1978). Tate’s employment as a trauma surgeon at UMC was
governed by the TSA, which stated that it could be terminated with 30 days’
written notice. Accordingly, Tate did not have a constitutionally protected
property right in his continued employment as a trauma surgeon at UMC under
1
Contrary to the position advanced by Tate’s counsel at oral argument, the
deposition of Kathleen Silver, which was not before the panel in Tate’s
interlocutory appeal, does not change this conclusion. The district court’s order of
July 15, 2009, denying Tate’s motion for a preliminary injunction credited Tate’s
allegation that he was unable to admit trauma patients. Giving all intendments to
Tate, Silver’s deposition testimony can still prove no more than that credited fact,
which was before the prior panel, for Silver at best concedes only that Tate could
admit no “new” trauma patients, a mere subset of “trauma patients.” Accordingly,
we remain bound by the prior panel’s published order, which constitutes both law
of the case and law of the circuit. Gonzales v. Arizona, 677 F.3d 383, 389 n.4
(2012) (en banc)
Nevada law, and his due process claims based on the termination of his
employment fail.
Tate’s claim 10 alleged violation of the implied covenant of good faith and
fair dealing associated with “a contract consisting of the Medical Staff’s Bylaws,
Credentialing Manual and other documents governing defendants’ treatment of
Tate’s clinical privileges” when “Defendants failed to follow the procedures set
forth in [the Bylaws contract] when they suspended [Tate’s] privileges.” Tate’s
claim 11 alleged negligence in failing to follow the Bylaws contract when
“Defendants failed to follow the procedures set forth in [the Bylaws contract] when
they suspended [Tate’s] privileges.” Thus, both claims turn on the argument,
already rejected by this court, that Tate’s removal from the on-call trauma schedule
was a de facto suspension of his clinical privileges. Accordingly, since Tate’s
clinical privileges were not, in fact, suspended, the district court properly granted
summary judgment as to claims 10 and 11.
AFFIRMED.