Schwartz v. Khalsa , 482 F. App'x 320 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
May 29, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GEORGE R. SCHWARTZ, M.D.,
Plaintiff - Appellant,
v. No. 11-2197
(D. New Mexico)
GURU TERATH SINGH KHALSA; (D.C. No. 6:10-CV-00095-MCA-KBM)
PAUL KOVNAT, M.D.; STEVEN
WEINER, M.D.,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Plaintiff George R. Schwartz, proceeding pro se, appeals the dismissal of
his claim under 42 U.S.C. § 1983, which alleged that two members of the New
Mexico Medical Board and the Board’s attorney improperly disseminated a
decision revoking his license and thereby deprived him of his ability to practice
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
medicine in other states without due process of law. He also challenges the
denial of a motion for limited discovery. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
I. BACKGROUND
In 2005 the New Mexico Medical Board (Board) initiated a licensing
proceeding against Dr. Schwartz. It issued a Notice of Contemplated Action
(NCA) alleging numerous instances of unprofessional conduct. After an
evidentiary hearing it voted to revoke Dr. Schwartz’s license and issued its
decision in March 2006 (Decision). He sought review in state district court,
which reversed and remanded for a new hearing (Reversal). But in 2008
Dr. Schwartz entered into an Agreed Order under which he voluntarily
surrendered his license and agreed not to practice medicine or seek a license
anywhere in the United States. The Agreed Order also stated his understanding
that the document would be reported to the National Practitioner Data Bank and
the Healthcare Integrity and Protection Data Bank. These are data banks used by
medical licensing boards throughout the country, and reporting the loss of a
license is required under federal law. See 45 C.F.R. §§ 60.8(a)(3), 61.7(a)(2).
The Board posted and updated Dr. Schwartz’s license status on its website
at each phase of the case; for example, after the signing of the Agreed Order the
website reflected that his status was “Voluntary Surrender.” Further, the website
made available the NCA, Decision, Reversal, and Agreed Order. The Decision,
-2-
Reversal, and Agreed Order were also reported to the two aforementioned data
banks.
In 2010 Dr. Schwartz filed suit in federal court against Paul Kovnat and
Steven Weiner, who were members of the Medical Board, and Guru Terath Singh
Khalsa, the Board’s administrative prosecutor (Defendants). His first amended
complaint, under which the case proceeded, asserted a variety of state-law claims
and claims under 42 U.S.C. §§ 1983 and 1985 for violation of due process and
conspiracy. The due-process claim alleged that Defendants improperly
disseminated the Decision to out-of-state boards without informing them of the
Reversal, thereby depriving Dr. Schwartz of licenses in four other states.
Defendants moved to dismiss, and the district court dismissed all but the § 1983
claim. Dr. Schwartz has not challenged that decision on appeal. Defendants then
moved for summary judgment on the § 1983 claim, submitting affidavits stating
that they had never sent or caused to be sent to any medical licensing board any
copy of the Decision or any other documents concerning Dr. Schwartz.
In response, Dr. Schwartz elaborated on the § 1983 claim, alleging that
Defendants had sent the Decision to other boards after the Reversal. He also filed
a supplemental response, providing two pages of a transcript of a deposition of a
former public-information officer at the Board, who said that she very likely had
sent the Decision to out-of-state boards.
-3-
Dr. Schwartz then filed a Motion for Limited Discovery arguing that
depositions of records custodians of the Pennsylvania and New York medical
boards would allow him to show that affidavits submitted by Defendants
contained misrepresentations of what was sent to those boards. After Defendants
filed a response, Dr. Schwartz filed a reply and attached his declaration (neither
sworn nor under penalty of perjury) that discovery would reveal that the Decision
was sent to other boards without notice of the Reversal, that it was sent to induce
adverse action against Dr. Schwartz’s licenses, and that it was sent by the records
custodian at the behest of Mr. Khalsa. Defendants submitted a supplemental
response and a notice of completion of briefing, after which Dr. Schwartz
submitted his own supplemental response. This time, he attached an affidavit
essentially repeating the assertions in the earlier declaration.
The magistrate judge denied the motion for discovery because Dr. Schwartz
had failed to satisfy Fed. R. Civ. P. 56(d), which requires the opponent of a
motion for summary judgment who seeks delay of the decision pending further
discovery to show “by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” The judge explained that
Dr. Schwartz’s motion did not include an affidavit or declaration and “fail[ed] to
sufficiently identify the discovery or information sought, the reasons he has not
previously been able to obtain it, or the way in which it is relevant to the
Defendants’ motion seeking to dismiss the case.” R., Vol. 1 at 405. The judge
-4-
further noted that the declaration attached to Dr. Schwartz’s reply was not in
proper form (it was not under penalty of perjury) and also failed to explain what
discovery he sought, why he had been unable to obtain needed information, or
how additional discovery would reveal facts assisting his opposition to summary
judgment. Finally, the judge stated that (1) Dr. Schwartz failed to seek leave of
court before filing his supplemental response, as required under the local rules, so
it was not entitled to consideration, and (2) in any event, the affidavit also failed
to provide the information required by Rule 56(d).
The district court granted summary judgment. Construing Dr. Schwartz’s
complaint as alleging an infringement of a “stigma plus” liberty interest in his
reputation and right to practice his profession, R., Vol. 1 at 411 (internal
quotation marks omitted), it ruled that Dr. Schwartz had failed to create a genuine
issue on the question whether Defendants published the relevant documents, an
essential element of a stigma-plus claim. See Renaud v. Wyoming Dept. of Family
Servs., 203 F.3d 723, 727 (10th Cir. 2000) (“First, to be actionable, the statements
must impugn the good name, reputation, honor, or integrity of the employee.
Second, the statements must be false. Third, the statements must occur in the
course of terminating the employee or must foreclose other employment
opportunities. And fourth, the statements must be published.” (internal quotation
marks omitted)). The court stated that the only proffered evidence to counter
Defendants’ affidavits was the public-information officer’s deposition attached to
-5-
the supplemental response, but that response was filed in violation of the local
rules requiring court permission, and in any event the deponent had left the
Board’s employment before the Decision was set aside by the Reversal and the
deponent provided no information regarding who instructed her to send out the
Decision.
Dr. Schwartz appeals both the denial of his motion for discovery and the
grant of summary judgment. He renews his contention that further discovery was
necessary to ascertain the identity of the person who sent documents to other
medical boards; and he adds an assertion, made for the first time on appeal, that
the other boards would not provide the name of the signatory on the document
transmission from the Board. As for summary judgment, he renews his argument
that Defendants improperly disseminated the Decision without informing out-of-
state boards of the Reversal, but adds, again for the first time, that “the law of
agency applies” to his case, making Defendants responsible for any publication of
documents regarding his license even if they did not personally cause the
publication. Aplt. Br. at 4.
II. DISCUSSION
We review discovery rulings for abuse of discretion. See Pippinger v.
Rubin, 129 F.3d 519, 533 (10th Cir. 1997). We affirm the denial of
Dr. Schwartz’s motion for discovery for essentially the reasons stated by the
magistrate judge. Dr. Schwartz’s assertion of his inability to obtain needed
-6-
information from out-of-state boards was not raised in district court, so we cannot
consider it now. See Mann v. United States, 204 F.3d 1012, 1017 (10th Cir. 2000)
(“Issues and arguments which are not raised below will not ordinarily be
considered on appeal.”).
Reviewing de novo the grant of summary judgment, see J.W. v. Utah, 647
F.3d 1006, 1009 (10th Cir. 2011), we also affirm. Dr. Schwartz failed to create a
genuine issue on the question whether Defendants published any documents. We
need not consider his argument about the “law of agency” because it was not
raised below.
III. CONCLUSION
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-7-