                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       January 30, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
RICHARD RUBIN,

             Plaintiff - Appellant,

v.                                                         No. 14-2058
                                               (D.C. No. 1:13-CV-00047-RB-WPL)
STEVEN JENKUSKY, M.D.;                                      (D. N.M.)
NEW MEXICO MEDICAL BOARD;
STEVEN WEINER, M.D., Chairman;
LINDA HART, Executive Director;
DAN RUBIN, Prosecutor; NEW
MEXICO DEPARTMENT OF HEALTH,

             Defendants - Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.


      Plaintiff Richard Rubin appeals from orders of the district court staying

discovery, dismissing his case, and denying reconsideration. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  BACKGROUND

      Rubin was a licensed physician’s assistant (PA) who worked at Zia Health and

Wellness in Albuquerque, New Mexico, certifying applicants for the medical use of

marijuana under the New Mexico Medical Cannabis Program and the Lynn and Erin

Compassionate Use Act (CUA), N.M. Stat. Ann. § 26-2B-1 through § 26-2B-7.

Psychiatrist Steven Jenkusky, who was a member of the New Mexico Medical Board

(Board), submitted a complaint to the Board regarding Rubin’s attempt to certify one

of Dr. Jenkusky’s patients. Dr. Jenkusky was concerned Rubin was certifying

applicants in the absence of any treating relationship and without physician

supervision. The Board advised Rubin of the complaint and invited a response,

which he provided. With Dr. Jenkusky abstaining, the Board voted to summarily

suspend Rubin’s PA license, finding he was “an immediate danger to the public.”

Aplee. Supp. App. at 31. Twelve days later, the Board sent Rubin a Notice of

Contemplated Action, informing him that the Board was considering imposing

sanctions, including suspending his license, and that he was entitled to a hearing at

which he could be represented by counsel, present evidence, and compel the

attendance of witnesses and the production of evidence.

      A hearing was set but never held because Rubin ultimately agreed to the entry

of a stipulated order that, among other things, suspended his PA license for one year,

prohibited him from prescribing any controlled substances for two years, and

prohibited him from certifying medical marijuana for four years. In the joint motion


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for the stipulated order, Rubin agreed that the proposed order, if accepted, would

result in a waiver of his rights to a hearing, to judicial review on the matters alleged,

and to challenge the stipulated order in court.

      The Board accepted the stipulated order. Despite the associated waiver

provisions, Rubin, through an attorney, filed a civil action against the Board;

Dr. Jenkusky; the Board’s Chairman, Dr. Steven Weiner; the Board’s Executive

Director, Lynn Hart (misidentified as Linda Hart); and the Board’s prosecutor, Dan

Rubin (no relation to plaintiff Rubin). Rubin also named as defendants the New

Mexico Department of Health (DOH) and Dr. Linda Gorgos.1 Rubin asserted

defendants violated his due process and equal protection rights by issuing the

summary suspension, in violation of 42 U.S.C. § 1983. He also asserted claims of

breach of statutory immunity under the CUA,2 defamation, malicious abuse of

process, infliction of emotional distress, wrongful interference with business

relationships, administrative conspiracy, and fraudulent inducement with respect to

the stipulated order.

1
       Rubin identified Dr. Gorgos as the Medical Director of the Infectious Disease
Bureau of the DOH’s Public Health Division. The district court later dismissed
Rubin’s claims against Dr. Gorgos without prejudice for failure to effect timely
service, a decision with which Rubin expressly agreed in a response to a show-cause
order and which he does not challenge on appeal.
2
       In relevant part, the CUA provides that “[a] practitioner shall not be subject to
arrest or prosecution, penalized in any manner or denied any right or privilege for
recommending the medical use of cannabis or providing written certification for the
medical use of cannabis pursuant to the Lynn and Erin Compassionate Use Act.”
N.M. Stat. Ann. § 26-2B-4.E.

                                           -3-
       The four individual Board defendants filed a motion to dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure, as did the Board. They

invoked a variety of theories for dismissal, including qualified immunity for the

individual defendants. The magistrate judge assigned to the case stayed discovery in

view of the assertion of qualified immunity but informed Rubin that he could seek

discovery by filing an affidavit under Rule 56(d) of the Federal Rules of Civil

Procedure. Rubin did not file a response to the dismissal motions, so the district

court granted them based on a local rule directing that the failure to respond to a

motion “constitutes consent to grant the motion,” D.N.M.LR-Civ. 7.1(b), and the

court’s view that, although summary judgment motions could not be conceded by a

failure to respond, motions to dismiss could, and the court’s local rule applied. The

DOH also filed a motion to dismiss, but as explained below, the district court never

ruled on it.

       Rubin then filed a motion asking the magistrate judge to reconsider the order

staying discovery and the district court to reconsider its dismissal order. As to the

stay order, Rubin pointed out that no defendant sought a stay, argued that a stay was

not mandated by the assertion of qualified immunity, and complained that the court

had failed to hold a discovery conference and to enter a scheduling order. The

magistrate judge denied reconsideration, stating that case law provides a court with

little discretion in whether to stay discovery once a defendant asserts qualified




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immunity and explaining that if Rubin wanted discovery, he should have filed a

Rule 56(d) affidavit.

       Two months later (and nearly ten months after the Board and the individual

Board defendants filed their answer), the magistrate judge entered an initial

scheduling order (apparently because the DOH’s motion to dismiss remained

pending) but vacated it in light of Rubin’s pending motion for the district court to

reconsider its dismissal order. In that motion, Rubin stated he did not file a response

to the motion to dismiss “for what his counsel considered good reasons in his client’s

interest.” Aplt. App. at 49. He asked the court to reconsider the dismissal in light of

Tenth Circuit law prohibiting courts from granting a motion to dismiss “merely

because a party failed to file a response.” Issa v. Comp USA, 354 F.3d 1174, 1177

(10th Cir. 2003) (brackets and internal quotation marks omitted); see also id. at 1178

(stating that “even if a plaintiff does not file a response to a motion to dismiss for

failure to state a claim, the district court must still examine the allegations in the

plaintiff’s complaint and determine whether the plaintiff has stated a claim upon

which relief can be granted”).

       The district court granted the motion to reconsider but dismissed the case with

prejudice. The court first concluded that Rubin’s due process claim failed because he

had been fully advised of his procedural rights but had waived them when he agreed

to the stipulated order and the suspension of his license. Next, the court determined

Rubin’s equal protection claim failed because he alleged no facts showing he was


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treated differently from any others who were similarly-situated. Finally, the court

held the state-law claims were subject to the New Mexico Tort Claims Act (NMTCA)

but concluded Rubin failed to allege or establish that any of his claims fit within one

of the waivers of the immunity the NMTCA grants to government entities and public

employees. The court entered a separate judgment under Rule 58 of the Federal

Rules of Civil Procedure dismissing the case with prejudice.

      Rubin then sought reconsideration of the district court’s order on his first

motion to reconsider, complaining dismissal was premature because the court had not

issued a scheduling order within the time limits of Rule 16 of the Federal Rules of

Civil Procedure3 and had not permitted discovery. He also argued the court had

failed to acknowledge his CUA immunity and had misunderstood his due process

claim, which he contended was based on the summary suspension, without a hearing,

issued almost two weeks before what he alleged was required by statute to be a prior

or concurrent Notice of Contemplated Action. The district court construed the

motion as one under Rule 59(e) and denied it, concluding Rubin had merely repeated

arguments the court had already found unpersuasive and had not shown “an

intervening change in the controlling law,” “new evidence previously unavailable,”

or a “need to correct clear error or prevent manifest injustice,” Servants of the



3
      Rule 16(b)(2) requires a district court to enter a scheduling order “within 120
days after any defendant has been served with the complaint or 90 days after any
defendant has appeared.”


                                          -6-
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), warranting Rule 59(e)

relief.

                                      DISCUSSION

          Rubin’s notice of appeal names four orders: the magistrate judge’s order

staying discovery (Doc. 15), the first and second dismissal orders (Docs. 18 and 35),

and the order denying his second motion for reconsideration (Doc. 39). We review

the dismissal orders de novo, see Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1227

(10th Cir. 2004), and the other orders for abuse of discretion, see Garcia v. Tyson

Foods, Inc., 770 F.3d 1300, 1309 (10th Cir. 2014) (discovery orders); Ysais v.

Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010) (denial of Rule 59(e) motions for

reconsideration).4

          Rubin argues that because of his statutory immunity under the CUA, he “may

not properly be subject to [an] immunity motion.” Aplt. Opening Br. at 7. But Rubin

provides no support for the argument (nor are we aware of any) that his alleged

immunity under the CUA precludes the Board or the Board-related defendants from

prevailing on their defense of governmental immunity to suit under the NMTCA.




4
      Rubin was represented by counsel through the filing of an opening brief in this
appeal, but his attorney was permanently disbarred by the State of New Mexico in
August 2014 and disbarred from this court in October 2014. Rubin has not retained
new counsel. Despite the fact Rubin is now pro se, he is not entitled to a liberal
construction of any of the relevant filings in the district court or this court, all of
which were prepared by an attorney.


                                           -7-
       Rubin also advances two arguments that fail for a common reason. First, he

claims the district court overlooked that the Board should have issued the Notice of

Contemplated Action at the time it imposed the summary suspension, not twelve days

later. That delay, he argues, violated a statutory directive that the Board “may

summarily suspend or restrict a license without a hearing, simultaneously with or at

any time after the initiation of proceedings for a hearing,” N.M. Stat. Ann.

§ 61-6-15.1.A. (emphasis added). Second, Rubin contends the Board lacked

evidence he was a danger to the public health and safety. These arguments ignore

Rubin’s waiver of his right to judicially challenge the actions of the Board when he

agreed to the stipulated order. Indeed, Rubin’s appellate brief fails to acknowledge

his waiver at all. Moreover, the statute clearly provides that the Board can impose a

summary suspension “without a hearing,” id., as occurred here, and that a person

whose license is summarily suspended is entitled to a later hearing upon request, see

id. Although Rubin requested a hearing, where he might have challenged the Board’s

finding that he was a danger to public health and safety, he ultimately waived his

right to one.

       Rubin next complains about the district court’s failure to follow Rule 16(b)’s

requirements that a court “must issue [a] scheduling order . . . within the earlier of

120 days after any defendant has been served with the complaint or 90 days after any

defendant has appeared.” Fed. R. Civ. P. 16(b)(2). But he has not pointed us to, nor

have we uncovered, any authority suggesting the failure to issue a scheduling order


                                          -8-
within the time constraints of Rule 16 requires an appellate court to reverse an order

dismissing a case under Rule 12(b)(6).

      Rubin also challenges the order staying discovery, arguing the magistrate

judge was mistaken in believing a motion to dismiss based on qualified immunity

mandated a stay. We need not address whether the assertion of qualified immunity

mandates a stay because Rubin has not identified any discovery he might have sought

that would have aided him in defending the motions to dismiss. See Garcia,

770 F.3d at 1309 (stating that appellate court will reverse only upon a “clear showing

that the denial of discovery resulted in actual and substantial prejudice” (internal

quotation marks omitted)). Further, the magistrate judge’s order provided a means

for Rubin to request discovery through a Rule 56(d) affidavit. He simply failed to

pursue that option. Hence, we see no abuse of discretion in the order staying

discovery.

      Finally, we note the district court never ruled on the DOH’s motion to dismiss.

Because Rubin has not claimed any error with respect to the district court’s dismissal

of the case with prejudice despite the DOH’s pending motion, we have no occasion to

address this apparent oversight.

                                    CONCLUSION

      The judgment of the district court is affirmed. Appellees have moved to strike

Rubin’s pro se affidavit, filed December 29, 2014, in which he alleges a political

motivation behind the actions underlying his suspension and asserts he complied with


                                          -9-
the CUA but was coerced into agreeing to the stipulated order. We grant appellees’

motion to strike because the affidavit presents no occasion to depart from the general

rule that appellate review is limited to the record before the district court. See Boone

v. Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1549 n.1 (10th Cir. 1992)

(declining to review documents not before the district court when appealed rulings
were issued).


                                                  Entered for the Court



                                                  Terrence L. O’Brien
                                                  Circuit Judge




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