                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              APR 30 2004
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 THOMAS P. MOORE, M.D.,

          Plaintiff-Appellant,

 v.

 RANDY MIDDLEBROOK;                                       No. 03-1010
 ORTHOPEDIC ASSOCIATES OF                                 (Colorado)
 ASPEN AND GLENWOOD SPRINGS,                       (D.C. No. CIV-00-RB-1917)
 P.C.; JOHN FREEMAN, M.D.; ROBERT
 HUNTER, M.D.; TOMAS PEVNY,
 M.D.; MARK PURNELL, M.D.; ASPEN
 EMERGENCY MEDICINE, P.C.; JOHN
 GLISMANN, M.D.; J. STEPHEN
 AYERS, D.O.; CHRISTOPHER
 MARTINEZ, M.D.; DAVID BORCHER,
 M.D.; GLENN KOTZ, M.D.; ASPEN
 VALLEY HOSPITAL,

          Defendants-Appellees.


                                 ORDER AND JUDGMENT*


Before SEYMOUR and BRISCOE, Circuit Judges, and PAYNE, District Judge.**


      *
         This order and judgment is not binding precedent, except under the doctrines of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.
      **
         The Honorable James H. Payne, United States District Judge for the Northern,
Eastern and Western Districts of Oklahoma, sitting by designation.
                                              I.

       This appeal is based on Dr. Moore’s contention the temporary suspension of his

medical staff privileges violated his constitutional right to due process. Specifically, Dr.

Moore argues the Medical Executive Committee (“MEC”) suspended his clinical

privileges due to his failure to attend a meeting scheduled by the President of the Medical

Staff in violation of the notice required by the Aspen Valley Hospital District (“the

Hospital”) Medical Staff Bylaws.

       Despite this contention, the record reveals MEC has discretion to automatically

suspend a practitioner’s privileges in the course of its peer review activities. In this case,

Defendants became concerned Dr. Moore was in possession of another physician’s

confidential privileges delineation list. Dr. Moore failed to respond to two written

requests for information regarding this issue from the President of the Medical Staff. He

then failed to appear at a meeting scheduled by the President of the Medical Staff to

discuss the issue, despite being given notice that his failure to appear could result in an

official investigation or corrective action. The MEC then imposed a temporary

suspension of Dr. Moore’s privileges pending his response to the inquiry regarding the

confidential document or documents in his possession, and offered him the opportunity to

meet and resolve the matter informally within five days after the suspension began. Dr.

Moore appeared for that meeting, but refused to cooperate with the President of the

Medical Staff’s request to turn off a recording device, so the meeting was terminated


                                              -2-
without any discussion of the matter being investigated.

                                             II.

       On September 27, 2000, Dr. Moore filed a Complaint against Defendants asserting

two claims: (1) violation of 42 U.S.C. §1983; and (2) violation of sections 1 and 2 of the

Sherman Act. Under 42 U.S.C. §1983, Dr. Moore alleged that Mr. Middlebrook, Dr.

Martinez, Dr. Hunter, Dr. Borcher, Dr. Ayers, Dr. Pevny, and Dr. Kotz issued an

“automatic suspension” of his staff privileges without providing adequate due process

under the Fourteenth Amendment of the United States Constitution.

       In response to the Complaint, Aspen Emergency Medicine (“AEM”), Dr. Ayers,

Dr. Martinez, Orthopedic Associates, Dr. Hunter, Dr. Pevny, Dr. Borcher, Dr. Kotz, and

Mr. Middleton all filed separate motions to dismiss to all of Dr. Moore’s claims. The

motions argued, among other things, that the Complaint did not allege with sufficient

specificity the facts surrounding the due process violation.

       Dr. Moore filed a Consolidated Response to all of the motions to dismiss on

January 5, 2001. Along with this Consolidated Response, Dr. Moore filed a Motion for

Leave to file the First Amended Complaint, which provided in greater detail the facts

surrounding the alleged due process violation. The Amended Complaint also voluntarily

dismissed the Sherman Act claims against Mr. Middlebrook and asserted the section 1983

claim against Orthopedic Associates and AEM. The district court granted Dr. Moore

leave to file the First Amended Complaint and accepted it as the operative complaint.


                                             -3-
       The district court also granted leave to all Defendants to filed Amended Motions to

Dismiss or any other responsive pleading. Again, Defendants filed their Amended

Motions to Dismiss, arguing that Dr. Moore did not have a constitutionally protected —

neither liberty nor property ---- interest to bring a 42 U.S.C. §1983 claim, that even if Dr.

Moore did have a constitutionally protected interest, Defendants were entitled to qualified

immunity; and that Defendants were immune from liability under Colo.Rev.Stat. §12-

36.5-105 (2002).

       Meanwhile, Dr. Moore filed another motion for leave to file the Second Amended

Complaint. The Second Amended Complaint, while asserting the same claims alleged in

the First Amended Complaint, added an injunctive relief claim pursuant to 42 U.S.C.

§1983 against the Hospital. On March 23, 2001, the magistrate judge granted the motion

for leave and accepted the Second Amended Complaint as the operative complaint.

       Defendants again filed motions renewing their prior motions to dismiss. In

addition, AEM, Dr. Ayers, and Dr. Martinez filed a motion to dismiss the claims asserted

in the Second Amended Complaint and to stay litigation pending the qualified immunity

determinations. The Hospital then filed a motion for summary judgment making the same

legal arguments raised by the other Defendants.

       After the issues were fully briefed by all of the parties, the magistrate judge issued

a recommendation. Noting that the existence of a constitutionally protected interest is a

question of law, the magistrate concluded that the denial of staff privileges at a public


                                             -4-
hospital did not implicate any liberty or property interest. Having concluded that no

constitutionally protected interest was implicated, the magistrate judge recommended the

dismissal of Dr. Moore’s section 1983 claim.

       The parties then filed objections to the magistrate’s recommendation. Of

importance to this appeal, the district court agreed with the magistrate judge’s

recommendation to dismiss Dr. Moore’s section 1983 claim against all Defendants. The

court concluded that neither the Hospital bylaws nor Colorado statutory law created a

property interest in Dr. Moore’s staff privileges warranting federal constitutional

protection. However, the district court did not dismiss the antitrust claims against

Orthopedic Associates, Dr. Hunter, Dr. Pevny, and two other named physicians. In turn,

Dr. Moore requested the district court to certify the dismissal of the section 1983 claim as

a final judgment for purposes of appeal. When the district court denied this request, Dr.

Moore voluntarily dismissed the antitrust claims with prejudice and appealed only the

dismissal of the section 1983 claim. Specifically, the only issue addressed in this appeal

is whether Dr. Moore has a property interest in continued public hospital medical staff

membership.

                                            III.

       “We review a district a district court’s grant of summary judgment de novo,

applying the same standard as the district court.” Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). A party is


                                             -5-
entitled to summary judgment if “the pleadings, depositions, answers to interrogatories,

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

issue at to any material fact.” Fed.R.Civ.P. 56(c). For purposes of summary judgment,

we view the evidence in the light most favorable to the non-moving party. Simms, 165

F.3d 1326. If the movant has shown the absence of a genuine issue of material fact, the

nonmovant cannot rest upon his or her pleadings, but must bring forward specific facts

sufficient to permit a reasonable jury to find in favor of the nonmovant on that issue. Id.

                                             IV.

       “If a plaintiff can prove [he] has a property interest in [his] employment, a state

cannot deprive [him] of that interest without due process.” Dickeson v. Quarberg, 844

F.2d 1435, 1438 (10th Cir. 1988). “A protected property interest in continued employment

exists only if the employee has a legitimate claim of entitlement to continued

employment.” Id. at 1437 (citation and internal quotation marks omitted). Property

interests are not created by the Constitution, but arise from independent sources such as

state statutes, local ordinances, established rules, or mutually explicit understandings.” Id.

Whether an employee has a property interest in her employment is determined under state

law. Id. at 1438 n.5.

       Here, Dr. Moore is an active member of the medical staff at the Hospital. The

Hospital is a public hospital created and operated pursuant to Colorado statute. Plaintiff

argues he has a protected property interest in his medical staff privileges created by


                                             -6-
C.R.C.P. 106(a)(4) and Park Hospital District v. District Court, 555 P.2d 984 (Colo.

1976).

         Plaintiff has the burden of establishing the existence of a protected property

interest. Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 578 (10th Cir. 1996). State law

can create a property interest in a number of different ways, including explicitly creating

such a right. Federal Legal Lands Consortium ex rel. Robart Estate v. United States, 195

F.3d 1190, 1196 (10th Cir. 1999). Neither of the Colorado authorities cited by Plaintiff,

Park Hospital District v. District Court, 555 P.2d 984 (Colo. 1976), or C.R.C.P.

106(a)(4), expressly state that medical staff privileges are protected property rights.

Because state law does not explicitly create a property right in medical staff privileges,

this Court must look to the degree to which the state has restrained the hospital’s

discretion with regard to the medical staff privileges. Id. at 1199; see also Jacobs,

Visconsi & Jacobs, Co. v. City of Lawrence, 927 F.2d 1111, 1116 (10th Cir. 1991)(“When

analyzing whether a plaintiff presents a legitimate claim of entitlement, we focus on the

degree of discretion given the decisionmaker . . . .”); Norton v. Village of Corrales, 103

F.3d 928, 931 (10th Cir. 1996)(“In the entitlement analysis nearly all courts focus on

whether there is discretion in the defendants to deny a zoning or other application.”).

         The “hallmark of property . . . is an individual entitlement grounded in state law,

which cannot be removed except ‘for cause.’” Logan v. Zimmerman Brusch Co., 455 U.S.

422, 430 (1982). If a state statute, regulation, or policy specifies the grounds on which an


                                              -7-
employee may be discharged, or restricts the reasons for discharge to “just cause shown,”

then a property interest in his or her employment is created. Asbill v. Housing Auth. of

Choctaw Nation, 726 F.2d 1499, 1502 (10th Cir. 1984); see also Anglemyer v. Hamilton

County Hosp., 58 F.3d 533, 539 (10th Cir. 1995)(stating that a property interest might be

created by specific statutory provisions or contract terms qualifying an employer’s

discretion to reassign or transfer an employee); Hennigh v. City of Shawnee, 155 F.3d

1249, 1254 (10th Cir. 1998)(“If the statute or regulation places some substantive

restrictions on the discretion to demote an employee, such as providing that discipline

may only be imposed for cause, then a property interest is created.”).

       However, detailed procedural protections in a state statute or regulation are not

sufficient to create a protected property interest. Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 541 (1985)(“‘Property’ cannot be defined by the procedures provided for

its deprivation any more than can life or liberty.”); Jacobs, Visconi & Jacobs, 927 F.2d at

1117 (“The Supreme Court has recognized that the mere existence of an entitlement to a

hearing under state law, without further substantive limitation, does not give rise to an

independent substantive liberty interest protected by the fourteenth amendment.”); Asbill,

726 F.2d at 1502 (“At least five circuits have adopted the view that procedural protection

alone does not create a protected property right in future employment; such a right

attaches only when there are substantive restrictions on the employer’s discretion.”);

Henningh, 155 F.3d at 1254 (“Procedural detail in a statute or regulation, standing alone,


                                             -8-
is not sufficient to establish a protected property interest in an employment benefit.”);

Bunger v. University of Oklahoma, 95 F.3d 987, 990-91 (10th Cir. 1996)(procedural

guidelines in Faculty Handbook did not create interest in reappointment); Hicks v. City of

Wantonga, 942 F.2d 737, 746 n.4 (10th Cir. 1991)(plaintiff did not have constitutionally

protected interest in city procedures); Russillo v. Honorable Tony Scarborough, 935 F.2d

1167, 1170-71 (10th Cir. 1991)(neither court rules nor grievance procedures create a

property interest in continued employment); Hillside Comty. Church v. Olson, 58 P.3d

1021, 1027 (Colo. 2002) (holding that a city ordinance requiring a public hearing before

granting a special use permit did not create a property interest).

       Here, Dr. Moore argues he has a property interest in his staff privileges because

the Hospital’s decision suspending his privileges is subject to judicial review under

C.R.C.P. 106(a)(4). However, the limited review provided pursuant to C.R.C.P 106(a)(4)

does not create a protected property interest in Dr. Moore’s medical staff privileges. In

Park Hospital District v. District Court, 555 P.2d 984 (Colo. 1976), the Colorado

Supreme Court simply recognized that a public hospital’s decision to summarily expel a

physician from its medical staff was subject to judicial review under C.R.C.P. 106(a)(4).

Under C.R.C.P. 106(a)(4), the district court’s review is strictly limited to determining

whether the “governmental body or officer . . . has exceeded its jurisdiction or abused its

discretion.” C.R.C.P. 106(a)(4); DeLong v. Trujillo, 25 P.3d 1194, 1197 (Colo. 2001).

C.R.C.P. 106(a)(4) places no substantive restrictions on the governing body’s broad


                                             -9-
discretion.

       The fact that Rule 106(a)(4) allows the state district court to review a public

hospital’s decision does not create a property interest. Procedural protections and

reasonableness requirements are not sufficient to create a protected property interest. Dr.

Moore’s alleged right to appeal the Hospital’s decision does not create a property interest

because it is not a substantive restriction on Dr. Moore’s staff privileges. Instead,

C.R.C.P. 106(a)(4) merely provides a procedural protection — a right to judicial review.

Nor does the fact that the district court reviews the Hospital’s decision under the abuse of

discretion standard create a property interest. Jacobs, 927 F.2d at 1115-18 (finding no

property interest where the only restriction was a requirement that the Hospital refrain

from acting arbitrarily or capriciously which is not a substantive restriction on the

Hospital’s discretion). It is just the opposite. It is a recognition of the Hospital’s broad

discretion in personnel matters. Pfenninger v. Exempla, 116 F.Supp.2d 1184, 1195

(D.Colo. 2000) (Colorado’s peer review statute does not create a property interest in

medical staff privileges just because it permits the reversal of peer review decisions

resulting from unreasonable anticompetitive conduct).

       Therefore, we find neither of the authorities cited by Dr. Moore create a

substantive restriction on the Hospital’s discretion with regard to Dr. Moore’s medical

staff privileges. Instead, they merely provide a procedural protection ---- a right to

judicial review under an abuse of discretion standard. Because a reasonableness standard


                                             -10-
of review is merely a procedural protection that does not substantively create a property

interest, Plaintiff does not possess a protected property interest in his medical staff

privileges. Further, C.R.C.P. 106(a)(4) merely provides a procedural protection, it does

not create a protected property interest.

       For the foregoing reasons, we hold that the district court did not err in granting the

Hospital’s motion for summary judgment and the remaining defendants’ motions to

dismiss.

       AFFIRMED.

                                                    Entered for the Court


                                                    James H. Payne
                                                    District Judge




                                             -11-
