Richard Tate v. University Medical Center ( 2019 )

FILED
NOT FOR PUBLICATION
JUL 12 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD TATE, as the Executor of the No. 16-17349
Estate of James S. Tate, Jr., M.D.,
D.C. No.
Plaintiff-Appellant, 2:09-cv-01748-JAD-NJK
v.
MEMORANDUM*
UNIVERSITY MEDICAL CENTER,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted July 10, 2019**
Portland, Oregon
Before: FERNANDEZ, GRABER, and OWENS, Circuit Judges.
Plaintiff Richard Tate, executor of the estate of Dr. James Tate, timely
appeals the district court’s entry of judgment, following a jury trial, in favor of
Defendants University Medical Center of Southern Nevada and others. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. The district court correctly rejected Plaintiff’s attempts to reconsider his
argument that his removal from the trauma on-call schedule was a de facto
suspension of his clinical privileges. In Tate v. University Medical Center of
Southern Nevada (Tate I), 606 F.3d 631, 634 (9th Cir. 2010) (order), we rejected
that precise argument. That decision binds us and the district court as law of the
circuit. See, e.g., Miranda v. Selig, 860 F.3d 1237, 1243 (9th Cir. 2017) ("[U]nder
the law-of-the-circuit rule, we are bound by decisions of prior panels[] unless an en
banc decision, Supreme Court decision, or subsequent legislation undermines those
decisions." (internal quotation marks omitted and alterations)). The exceptions to
the "law of the case" doctrine do not apply. Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc), aff’d, Arizona v. Inter Tribal Council of Ariz.,
Inc., 570 U.S. 1 (2013).
2. Plaintiff’s challenge to the admission of unspecified "documents" is
insufficiently briefed; accordingly, this argument is waived. See, e.g., United
States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) ("Arguments made in passing
and not supported by citations to the record or to case authority are generally
deemed waived."); Fed. R. App. P. 28(a)(8)(A) ("The appellant’s brief must
contain . . . the argument, which must contain . . . appellant’s contentions and the
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reasons for them, with citations to the authorities and parts of the record on which
the appellant relies[.]").
3. We disagree with Plaintiff that Judge George erred by failing to recuse
himself earlier in the proceedings. In the circumstances, Plaintiff has not shown
that there is "an impermissible risk of actual bias." Williams v. Pennsylvania, 136
S. Ct. 1899, 1905 (2016). Similarly, "an objectively reasonable person informed of
the facts" would not conclude that Judge George’s "impartiality might reasonably
be questioned." Denardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th
Cir. 1992).
AFFIRMED.
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