                                                                      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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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,

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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.




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      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

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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




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