                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       JUN 22 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


 JAMES S. TATE, Jr.,                             No. 13-15736

             Plaintiff - Appellant,              D.C. No. 2:09-cv-01748-LDG-
                                                 NJK
    v.

 UNIVERSITY MEDICAL CENTER;                      MEMORANDUM*
 STEVE SISOLAK; TOM COLLINS;
 LARRY BROWN; CHRIS
 GIUNCHIGLIANI; SUSAN BRAGER;
 RORY REID; MEDICAL AND DENTAL
 STAFF OF THE UNIVERSITY MEDICAL
 CENTER OF SOUTHERN NEVADA;
 KATHLEEN SILVER; JOHN
 ELLERTON, M.D.; LAWRENCE
 WEEKLY; DALE CARRISON, MD,

             Defendants - Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                 Lloyd D. George, Senior District Judge, Presiding

                        Argued and Submitted June 10, 2015
                             San Francisco, California

Before: SILVERMAN, GOULD, and HURWITZ, Circuit Judges.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      James Tate, Jr., M.D., asserted negligence, contract, and procedural due

process claims against several parties after the termination of his medical staff

membership and privileges at the University Medical Center of Southern Nevada

(“UMC”). He appeals the dismissal by the district court of the negligence claim

and the entry of summary judgment in favor of the defendants on the remaining

claims. We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, reverse in

part, and remand.

       1.   The UMC bylaws entitle medical staff members to procedural

protections, including notice and a hearing, upon the occurrence of various adverse

actions, including termination of staff membership and privileges or denial of

reapplications for membership and privileges. The bylaws thus create a “legitimate

claim of entitlement” that may not be revoked without due process. Stretten v.

Wadsworth Veterans Hosp., 537 F.2d 361, 366-67 (9th Cir. 1976); see also Lew v.

Kona Hosp., 754 F.2d 1420, 1424 (9th Cir. 1985).

       2. The defendants argue Dr. Tate was not deprived of a protected property

interest because he voluntarily resigned from the medical staff. But there was

substantial evidence that Dr. Tate did not resign. Dr. Tate informed the Medical

Executive Committee (“MEC”) that he “had no intention of voluntarily resigning,”

and the minutes from the September 15, 2009 meeting of the UMC trustees list Dr.

Tate as “remove[d] from staff”; his name is not among those of the physicians who

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had “resign[ed].” There was therefore at least a material dispute of fact regarding

whether Dr. Tate resigned, and, accordingly, whether he was deprived of a protected

property interest.

       3.   The district court erred in determining there could be no municipal

liability against the UMC and its trustees ex officio. The trustees received a

recommendation from the MEC about Dr. Tate’s membership and privileges and

“affirmatively approved” it. Christie v. Iopa, 176 F.3d 1231, 1240 (9th Cir. 1999).1

       4. The district court concluded that the medical staff is not amenable to suit

under 42 U.S.C. § 1983. Because Dr. Tate did not challenge this finding in his

opening brief, any challenge is waived. All Pac. Trading, Inc. v. Vessel M/V Hanjin

Yosu, 7 F.3d 1427, 1434 (9th Cir. 1993).

       5. Dr. Tate also waived any challenge to the district court’s determination

that John Ellerton, M.D., is entitled to qualified immunity, and that Dale Carrison,

D.O., did not participate in any alleged constitutional violation. Id.

       6.   There was no error in converting the motion to dismiss filed by

Defendant Peter Mansky, M.D., into a motion for summary judgment. See, e.g.,



1
   The parties may raise on remand whether there is any redundancy in naming both
the UMC and the trustees ex officio as defendants.



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Cunningham v. Rothery (In re Rothery), 143 F.3d 546, 549 (9th Cir. 1998) (“A party

is ‘fairly appraised’ [sic] that the court will in fact be deciding a summary judgement

motion if that party submits matters outside the pleadings to the judge and invites

consideration of them.” (quoting Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528,

1533 (9th Cir. 1985))). And there was no error in granting the motion because there

was no evidence of any agreement between Dr. Mansky and others to deprive Dr.

Tate of a protected property interest without constitutionally adequate procedures.

See Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (“To prove a conspiracy

between private parties and the government under § 1983, an agreement or ‘meeting

of the minds’ to violate constitutional rights must be shown.”). Nor did the district

court abuse its discretion in denying leave to amend the claim against Dr. Mansky;

Dr. Tate failed to identify any new facts that would add merit to the claim. See

Dougherty v. City of Covina, 654 F.3d 892, 901 (9th Cir. 2011).

       7.   The district court assumed without deciding that a contract existed

between Dr. Tate and the UMC, but concluded that Dr. Tate’s contract claim failed

because there was no breach and Dr. Tate had released the liability of the UMC.

The bylaws, however, guarantee certain procedures when staff membership and

privileges are terminated; assuming the bylaws are a binding contract, that contract

was breached if Dr. Tate did not voluntarily resign. There is also a material dispute

of fact as to whether this breach is covered by the releases signed by Dr. Tate, which


                                          4
refer primarily to liability arising in connection with the application process.

Accordingly, summary judgment on the contract claim was improper.

       8. The district court correctly dismissed Dr. Tate’s negligence claim, which

is predicated on breach of the Nevada statutes requiring promulgation of hospital

bylaws, see Nev. Rev. Stat. § 450.160, because those statutes were not violated, see

Ashwood v. Clark Cnty., 930 P.2d 740, 744 (Nev. 1997).

       AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

Each party shall bear its own costs.




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