                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 3 2005
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

    JOSEPH P. SEAY, DDS, MS,

                 Plaintiff - Appellant,

     v.                                                   No. 04-6035
                                                          (W.D. Okla.)
    LINDA CAMPBELL, RON WINDER                      (D.C. No. CV-02-1028-L)
    and JEFF LUNDAY, in their
    individual capacities,

                 Defendants - Appellees.


                              ORDER AND JUDGMENT          *




Before LUCERO , McKAY , and ANDERSON , Circuit Judges.



          Joseph P. Seay, DDS, MS, appeals from the district court’s order granting

the defendants’ motion for summary judgment and denying his motion for partial

summary judgment in this civil rights action brought pursuant to 42 U.S.C.



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
§ 1983. In his complaint, Seay included claims for violation of due process and

conspiracy. He also now asserts that he is entitled to proceed on claims for

malicious prosecution and for denial of substantive due process. We     AFFIRM .

                                           I

      Seay has been a licensed dentist since 1993, and is a member of the

Oklahoma Board of Dentistry (“Board”).     1
                                                He completed a two-year post-dental

school residency in anaesthesiology and is one of two dentist anaesthesiologists

operating in the State of Oklahoma. He maintains an ambulatory practice and

performs general anaesthesiology and deep sedation for dentists and dental

specialists who require such services at their offices. Relying on the

qualifications obtained during his residency in anaesthesiology, Seay also

provides general anaesthesiology services to non-dental patients in hospitals, is on




1
       As in the district court, the statement of facts in Seay’s brief is unduly
argumentative. See Aplt. App., Vol. II at 716 n.1 (noting that Seay’s statement of
uncontested facts “consisted mainly of unsupported allegations, conclusory
statements, and argument.”). Seay also draws questionable inferences from the
evidence, see, e.g. , Aplt. Opening Br. at 4 (stating the Board “acquiesced to
[Seay’s anaesthesiology] practice” and later “attempted to surreptitiously
implement anti-competitive inspection rules”). Both parties make statements that
appear to find no record support.    See, e.g. , id. at 5 (stating that complaining
witness Dunham had been “terminated by Seay after working for less than one . . .
day”); Aplee Br. at 5 (“Seay’s malpractice insurance does not cover epidural
anaesthesia.”). Parties should ensure that the factual statements in their briefs
find support in the record.   See generally Fed. R. App. P. 28(a)(7).

                                          -2-
the anaesthesiology staff at two Oklahoma hospitals, and has provided pain relief

to hospice patients on a charitable basis.

       The Board is an agency of Oklahoma state government charged with

enforcing the provisions of the State Dental Act. Okla. Stat., tit. 59 § 328.7(A).

It is empowered to conduct investigations of alleged violations of the Dental Act

or the Board’s rules, to initiate individual proceedings, and to issue administrative

penalties against dentists who are found to have committed violations of the Act

or its rules. Id. §§ 328.15(B)(8), (14). The defendants are members of the Board

who Seay alleges have conspired to damage his practice as a mobile dental

anaesthesiologist. Defendant Jeff Lunday was the Board’s president at the time

Seay’s allegations arose, and defendant Linda Campbell has been the Board’s

executive director since 1979.

       Oklahoma statutes, supplemented by the Board’s rules and regulations, set

out the procedure under which the Board conducts its investigations and

disciplines Oklahoma dentists. They provide that “[a]ny person may file a written

and signed complaint with the Board.”       Id. § 328.43a(A). The complaint is then

directed by the Board’s president to two specific Board members for review.       Id.

This review panel conducts an investigation to determine whether it is more likely

than not that the dentist has committed a violation.   Id. § 328.43a(B). If the




                                             -3-
review panel so finds, it may recommend that the Board institute an individual

proceeding against the dentist.   Id. § 328.43a(D).

       After hearing from the review panel, the Board determines whether to

issue a “formal statement of complaint” to begin individual proceedings against

the dentist. Rules & Regs., Okla. State Bd. of Dentistry §§ 195:3-1-3(b), 195:3-1-

4(a). On complaint and notice of hearing pursuant to   § 195:3-1-4(b), if upon

hearing the Board finds by clear and convincing evidence that the dentist has

violated the Dental Act, the Board may impose appropriate disciplinary sanctions

on the dentist. Okla. Stat. tit. 59, § 328.44a.

       Seay’s complaint in this action arises from investigations of his

anaesthesiology practice by the Board beginning in 1995 and culminating in a

formal statement of complaint against him in 2000.

                                           A

       We begin with the investigations and incidents prior to the 2000

proceeding. In August 1995, defendant Campbell contacted an agent of the

Oklahoma State Bureau of Narcotics and Dangerous Drugs (“OSBNDD”) and

requested that OSBNDD make an inquiry of its computerized system for tracking

prescriptions concerning narcotic drugs prescribed by Seay. The agent conducted

the inquiry and determined that during the time period between June 28, 1993 to

September 15, 1995, Seay had issued a small number of prescriptions for pain-


                                          -4-
killing drugs that the agent concluded “were not typical of prescriptions issued by

a dentist.” Aplt. App., Vol. I at 197. Seay later testified, and there appears to be

no factual dispute, that these drugs had been issued to hospice patients. Although

the OSBNDD agent proposed further investigation, apparently the matter was

closed and the Board took no further action against Seay at that time.

      In March 1998, Campbell received a letter from a certified registered nurse

anaesthetist (“CRNA”) expressing concern about Seay’s anaesthesiology practice

involving non-dental patients at Pauls Valley General Hospital. Campbell

appointed a two-member review panel to investigate the CRNA’s complaint,       2



which was dismissed by the Board after a physician reviewed the complaint and

stated he “did not feel alarmed” by it, Aplt. App., Vol. I at 227, and the Board’s

counsel suggested that the allegations that Seay was practicing medicine without a

license would be better investigated by the State Medical Board.

      Dental Board rules require that dentists holding anaesthesia permits be re-

inspected every three years. Board of Dentistry Rules & Regs. § 195:20-1-13.

When Seay’s permit came up for review in 1999, he insisted that the Board

provide an impartial inspection team. There were significant delays in approval

of his renewal permit, and the Board ultimately cancelled Seay’s anaesthesia




2
      The review panel members are not defendants in this suit.

                                          -5-
permit for non-reinspection. Seay was compelled to obtain temporary permits

from the Board in order to stay in business.

                                          B

       Campbell received information that a dentist named Dr. Steffen was

utilizing Seay’s services without a facility permit. Campbell dispatched an

investigator who prepared a report that lent factual support to the allegations

whereupon defendant Lunday appointed a review panel to deal with the

investigation on July 21, 2000. The review panel, consisting of defendant Ronald

Winder and another dentist not named in this action, recommended an

investigation into Dr. Seay’s operating without an anesthetic permit.

      Finding that Seay had written improper prescriptions for narcotic drugs,

prescribed or administered drugs without a valid dentist-patient relationship, and

failed to retain patient records for at least three years, the review panel concluded

it had good cause to believe that Seay had violated the Act and rules of the Board.

A statement of complaint was prepared. This complaint charged Seay with six

violations dating back to 1995, including performance of medical procedures on

non-dental patients; prescription of pain control medication to non-dental

patients; failure to maintain a general anaesthesia permit at his professional

facility in McAlester; providing general anaesthesia at another dentist’s office

where that other dentist did not hold a general anaesthesia facility permit; falsely


                                         -6-
representing himself as a medical anaesthesiologist; and using a false and

misleading trade name.

      At its October 20, 2000 meeting, the Board voted to approve the statement

of complaint. As Seay was a member of the Board, the Board further voted to

appoint a temporary pro tem Board, which would be free from conflict of interest,

to process the complaint. In February 2001, Campbell arranged for the review

panel to meet with the pro tem Board. Seay contends that this meeting was

designed to contaminate the pro tem Board.

      The pro tem Board in turn appointed two of its members to a review panel.

Both of the review panel members subsequently recommended that the complaint

be dismissed. Notwithstanding this recommendation, on July 2, 2001, the

Oklahoma Attorney General attempted to obtain the review panel’s consensus on

a proposed stipulated settlement agreement with Seay. This drew the ire of one of

the review panel members, who expressed her “great displeasure” that a “blunder

of this magnitude” had occurred when both review panel members had already

voted to dismiss the complaint against Seay. Aplt. App., Vol. I at 373.

      In spite of the recommendation to dismiss, Campbell scheduled a meeting

of the pro tem Board in August 2001. She continued to work with an expert

witness concerning Seay’s practices into July 2001. She did not notify Seay until

September 7, 2001 that the complaint against him had been dismissed.


                                        -7-
                                              II

       We review de novo a district court’s grant of summary judgment.            Marcus

v. McCollum , 394 F.3d 813, 820 (10th Cir. 2004). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed.R.Civ.P. 56(c). When we apply this standard,

we view the evidence and draw all reasonable inferences in a light most favorable

to the nonmoving party.      Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1180

(10th Cir. 2003). “At the summary judgment stage, our role is simply to

determine whether the evidence proffered by plaintiff would be sufficient, if

believed by the ultimate fact-finder, to sustain the claim.”        Marcus , 394 F.3d at

820 (citation omitted).

       Defendants sought summary judgment on the basis that Seay’s allegations

fail to establish a constitutional violation, and that they were entitled to qualified

immunity. Each of these arguments requires us to consider whether Seay has

demonstrated that the defendants’ actions violated his constitutional rights.         See

id. at 823. If so, then we determine whether their conduct was objectively

reasonable in light of clearly-established law at the time it took place.       Id.




                                             -8-
                                           A

      “Under the Fourteenth Amendment, procedural due process requires notice

and a pre-deprivation hearing before property interests are negatively affected by

governmental actors.”     Marcus , 394 F.3d at 818. It is undisputed that Seay has a

property interest in his professional license to practice dentistry. To establish his

claimed procedural due process violation, Seay must show that the defendants did

not give him adequate notice and opportunity to be heard before depriving him of

this property interest.

      There is some question whether Seay was “deprived” of his property

interest, given that the Board ultimately dismissed its complaint against him. We

need not resolve that issue, however, because summary judgment is appropriate

for another reason. Seay failed to show that he did not receive adequate notice of

the Board proceeding and an adequate opportunity to be heard.

      Seay does not deny that he ultimately received notice of the charges

included in the statement of complaint or that he had an opportunity to be heard

concerning them. Indeed, the ultimate result was dismissal of the charges against

him. Instead, he argues that the Board’s governing statutes provided an

additional layer of procedural protection by making the Board powerless to

conduct “any type of investigation or disciplinary proceeding” until it had

received a “written and signed complaint” against him. Aplt. Opening Br. at 10


                                          -9-
(quoting § 328.43a(A)). As the district court pointed out, however, a violation of

state law procedures (assuming the Board violated § 328.43a(A), an issue that it

hotly contests) does not automatically equate to a violation of due process.     See

Spielman v. Hildebrand , 873 F.2d 1377, 1385 (10th Cir. 1989).

       Seay cites no authority for the proposition that due process required the

Board to wait until it received a written and signed complaint about him before it

could investigate whether he had violated the Dental Act. He analogizes the

requirement of a complaint to a pre-termination hearing in the employment

context. The Board’s issuance of a statement of complaint, however, notifying

Seay of the charges against him, coupled with the right to a hearing provided

before discipline was imposed, plainly served the purpose of notice and a

predeprivation hearing.    See Rules & Regs. § 195:3-1-4(b);      cf. Keney v.

Derbyshire , 718 F.2d 352 (10th Cir. 1983) (holding similar New Mexico

physician license revocation procedures satisfied due process, notwithstanding

absence of a probable cause hearing prior to institution of proceedings against

physician). We conclude that the alleged lack of a written and signed complaint

before the Board began its investigation did not deprive Seay of procedural due

process. Summary judgment was therefore appropriate on this claim.




                                           -10-
                                            B

      The district court concluded that Seay’s civil conspiracy claim could not

survive summary judgment because he failed to show that the defendants had

acted in concert against him. A plaintiff asserting a conspiracy to violate his

constitutional rights must allege specific facts showing agreement and concerted

action among the defendants.     Salehpoor v. Shahinpoor , 358 F.3d 782, 789 (10th

Cir. 2004), cert. denied , 125 S. Ct. 47 (2004);   Tonkovich v. Ks. Bd. of Regents   ,

159 F.3d 504, 533 (10th Cir. 1998).

      Much of Seay’s conspiracy claim is based upon his contention that the

defendants violated his constitutional rights by investigating him without a

written and signed complaint. As we have seen, these allegations do not state a

claim for a violation of procedural due process, and hence cannot establish a

conspiracy to violate Seay’s procedural due process rights. It appears, however,

that Seay attempts to prove a more broad-ranging conspiracy, asserting, for

example, that defendants conducted three separate investigations in order to run

him out of business.

      We conclude that Seay has failed to establish the existence of the claimed

conspiracy between the defendants. At best, he presents a series of events in

which the defendants each participated at some point, but no specific facts to

show agreement and a concerted action by the defendants.


                                           -11-
      In his brief, Seay complains that after defendant Campbell initiated the

1995 investigation of his practices by contacting the OBNDD, she and other

members of the Board questioned his writing of prescriptions and discussed the

matter with Seay and his attorney. Seay does not discuss who these “other

members of the Board” were. In his deposition testimony, however, he mentioned

only Dr. Garrett, who is not a defendant in this action. There is no showing of a

conspiracy between Garrett and Campbell to deprive Seay of his constitutional

rights. Seay fails to show any concerted action by the defendants in connection

with the 1995 investigation.

      Seay states that when he successfully sued the Board in 1997 for violation

of rule-making procedures, he included all three defendants in his state court

lawsuit. 3 He suggests that the Board members were angered by the fact that he

had sued them. This fact may suggest a motive to conspire, but does not

demonstrate concerted action by the defendants.

      Seay charges that the defendants worked together to process the 1998

complaint against him. It is difficult to see how this can be construed as evidence

of a conspiracy. The Board members had received a complaint from a member of



3
       Seay’s complaint in this action targets only judicially-unreviewed executive
actions by the Board, and not those of any state court. For this reason, his
complaint is not barred by the Rooker-Feldman doctrine. See Verizon Md., Inc.
v. Public Serv. Comm’n , 535 U.S. 635, 644 n.3 (2002).

                                        -12-
the public, investigated the complaint, obtained the advice of an outside

physician, and dismissed the complaint. Seay also complains that defendants

resurrected the allegations of the 1998 complaint to form part of the 2000

complaint against him.     See id. at 208. While use of the allegations dismissed as

part of a prior complaint may have been improper under state law principles, Seay

fails to show that this demonstrates a conspiracy to violate his constitutional

rights.

          This is also true of the complaint that defendant Winder “continued to work

with a group of Tulsa Oral Surgeons (Seay’s Competitors) to restrict the practice

of any and all dental anesthesiologists like Seay.” Aplt. Br. at 27-28. The only

evidence Seay offers is a letter from the oral surgeons to Winder expressing anger

about the “so-called dental anaesthesiologists.” Seay cites no evidence that

Winder acted in concert with the other defendants to pursue the oral surgeons’

complaint by harassing Seay.

          We are directed to evidence that in July 2000, defendants Lunday and

Campbell met together, with the Board’s attorney and another member of the

Board, to review his general anaesthesia permit. As a result of the review, the

Board requested a copy of Seay’s certificate showing completion of his residency

at Ohio State University. Seay contends that there was no legitimate or lawful

reason for the review. At the time, however, he was operating under a temporary


                                           -13-
anaesthesia permit while his permanent permit was under review for renewal. We

are unable to conclude that this is evidence of a conspiracy.

       Seay complains that the 2000 proceeding could not have gone forward

without each of the defendants’ separate approval. Parallel action, however, does

not necessarily indicate an agreement to act in concert.       Salehpoor , 358 F.3d at

789.

       Finally, Seay charges that defendants Winder and Campbell continued to

work together to locate an expert to testify against him, even after the Pro Tem

Review Panel had unanimously recommended dismissal of the 2000 statement of

complaint. It appears that at the time they took this action, the Board had not yet

formally dismissed the complaint against Seay. It notified him of the dismissal of

the complaint a few months later. We discern no evidence of a conspiracy to

violate Seay’s constitutional rights in Winder and Campbell’s attempts to develop

expert testimony prior to formal dismissal of the complaint against Seay.

       We conclude that the district court correctly granted summary judgment on

Seay’s conspiracy claim.

                                              C

       In his appellate briefing, Seay also claims that the defendants violated his

substantive due process rights. Defendants respond that Seay failed to make this

argument below and it is therefore waived.          See e.g. , Walker v. Mather (In re


                                             -14-
Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (following general rule that appellate

courts will not consider an issue that was not raised below). Even if Seay

preserved the argument, however, summary judgment is appropriate on this claim.

       Seay’s complaint included a claim for “violation of due process,” without

specifying whether the violation implicated his right to substantive or procedural

due process. We have recognized that procedural and substantive due process

issues frequently overlap, and counsel may not always correctly identify the basis

for a due process claim.    See Tonkovich , 159 F.3d at 527-28. The clearest

statement of Seay’s claim as presented to the district court came in his motion for

partial summary judgment, where he stated:

      The essence of Seay’s claim is that the Defendants, under color of
      law, deprived him of his due process rights and property interests in
      his license to practice dentistry by intentionally ignoring the statutory
      requirements of both the Dental Act and Dental Board Rules and that
      they knowingly and falsely concocted allegations that Seay had
      violated the Dental Act.

Aplt. App., Vol. I at 88.

      As regards the claim that the defendants ignored statutory requirements,

which appears to be coterminous with Seay’s assertion that defendants violated

his procedural due process rights by failing to await a written and signed

complaint before proceeding against him, we have already concluded that this

claim lacks merit. His claim that defendants knowingly concocted false

allegations against him, if proved, could potentially implicate a violation of

                                          -15-
substantive due process.    See Tonkovich , 159 F.3d at 528 (stating substantive due

process violations are those that “shock the conscience” of the court, or are

arbitrary in a constitutional sense). Seay offers no proof, however, that the

Board’s charges against him were “false.” Although he asserts that the Board had

dismissed similar charges against him on prior occasions, and that the pro tem

Board’s review panel ultimately did not find it more likely than not that he had

committed a violation, this does not equate to a deliberate falsehood. Nor does

merely resurrecting old charges, which had never been formally served on Seay

and adjudicated against him, by itself constitute a violation of substantive due

process. We conclude that Seay has failed to establish a substantive due process

claim.

                                           D

         Seay also argues that he established a claim for malicious prosecution.

Defendants counter that Seay did not present such a claim to the district court.

Although he did argue in his brief in support of partial summary judgment that he

had established a claim “tantamount to” such a claim under § 1983,     he did not

include a malicious prosecution claim in his complaint, nor did he move to amend

his complaint to include a claim for malicious prosecution. Defendants resisted

Seay’s attempt to interject a claim for malicious prosecution into the action, and

the district court did not discuss the claim in its order. Because we conclude that


                                          -16-
the issue of malicious prosecution was not included in Seay’s complaint, or in an

amended complaint, and that it was not tried by consent of the parties,      see Fed. R.

Civ. P. 15(b), we will not consider it on appeal.

                                               III

       The judgment of the district court is         AFFIRMED .

                                                          Entered for the Court


                                                          Carlos F. Lucero
                                                          Circuit Judge




                                               -17-
