                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                            No. 10-15141             JUNE 23, 2011
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                                D.C. Docket No. 1:09-cv-23372-PCH

TIE QIAN,
llllllllllllllllllllllllllllllllllllllll

                                                                      Plaintiff-Appellant,


                                               versus


SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
lllllllllllllllllllllllllllllllllllllll

                                                                    lDefendant-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (June 23, 2011)

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:
      Tie Qian, a counseled appellant who proceeded pro se before the district

court, appeals the district court’s grant of summary judgment to the Secretary of

the Department of Veterans Affairs (“VA”), in his action alleging a termination of

his employment and a revocation of his medical staff privileges without due

process of law. He argues that the district court erred by refusing to grant him

leave to amend his complaint, two weeks before trial, to state a discrimination

claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e-16, based on his national origin. Specifically, he contends that the court did

not afford him the leniency granted to pro se litigants, that it erred by finding that

his discrimination claim and due process claim did not arise from the same

conduct, and that it, consequently, erred by finding that any amendment of his

complaint to state a discrimination claim, which at that point would have

otherwise been time-barred absent a relation back to the original filing, would be

futile. He also contends that the district court erred by finding that, as a temporary

employee, he was not entitled to any procedural due process prior to his

termination or the revocation of his privileges and the subsequent reporting of

such to the National Practitioner Data Bank (“NPDB”).

                                           I.


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      “A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief,” and “[e]ach

allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1);

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 998, 152 L. Ed.2d

1 (2002) (finding that the petitioner's complaint satisfied Rule 8(a)'s pleading

requirements “because it g[ave] respondent fair notice of the basis for petitioner's

claims”). A complaint must also “state a claim to relief that is plausible on its

face,” however. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.

1955, 1974, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. ––––, ––––, 129 S. Ct. 1937, 1949, 173 L. Ed.2d 868 (2009). The

complaint must include enough facts “to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.

      A federal court must liberally construe pro se pleadings. Albra v. Advan,

Inc., 490 F.3d 826, 829 (11th Cir. 2007). However, even liberal pleading

standards do “not afford plaintiffs with an opportunity to raise new claims at the

summary judgment stage.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,

1314 (11th Cir. 2004). “At the summary judgment stage, the proper procedure for


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plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.

R. Civ. P. 15(a). A plaintiff may not amend h[is] complaint through argument in a

brief opposing summary judgment.” Id. at 1315.

      “We review the district court’s refusal to grant leave to amend for abuse of

discretion, although we exercise de novo review as to the underlying legal

conclusion that an amendment to the complaint would be futile.” SFM Holdings,

Ltd. v. Banc of America Securities, LLC, 600 F.3d 1334, 1336 (11th Cir. 2010)

(citation omitted). An appellant ordinarily is considered to have abandoned any

claim not raised in his initial brief. United States v. Jernigan, 341 F.3d 1273,

1283 n. 8 (11th Cir. 2003).

      Rule 15(a) gives a plaintiff the right to amend a complaint once, as of right,

within 21 days of serving it or receiving a responsive pleading or motion to

dismiss. Fed. R. Civ. P. 15(a); Coventry First LLC v. McCarthy, 605 F.3d 865,

869 (11th Cir. 2010) (citation omitted). Otherwise, a party may amend its

pleading only with the opposing party’s consent or the court’s leave, which the

court should freely give when justice so requires. Fed. R. Civ. P. 15(a)(2). When

a district court is moved for leave to amend a complaint, it may deny such a

motion for futility. Coventry, 605 F.3d at 870 (citation omitted). “Leave to amend

a complaint is futile when the complaint as amended would still be properly


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dismissed or immediately subject to summary judgment for the defendant.”

Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (citation omitted). “An

amendment to a pleading relates back to the date of the original pleading when . . .

[it] asserts a claim that arose out of the conduct, transaction, or occurrence set

out- or attempted to be set out- in the original pleading.” Fed. R. Civ. P. 15(c)(1).

      Federal law prohibits discrimination based on national origin with regard to

employees of the federal government. 42 U.S.C. § 2000e-16(a). "Before a

potential plaintiff may sue for discrimination under Title VII, []he must first

exhaust [his] administrative remedies." Wilkerson v. Grinnell Corp., 270 F.3d

1314, 1317 (11th Cir. 2001) (citation omitted). A plaintiff in a Title VII action is

required to file suit within 90 days after receiving a "right-to-sue letter," although

this is not a jurisdictional prerequisite, and a defendant must assert the failure to

file suit within 90 days as a defense. Pinkard v. Pullman-Standard, a Div. of

Pullman, Inc., 678 F.3d 1211, 1218 (11th Cir. 1982) (citations omitted); 42 U.S.C.

§ 2000e-16(c). Once the defendant contests this issue, the plaintiff has the burden

of establishing that he met the 90 day filing requirement. Green v. Union Foundry

Co., 281 F.3d 1229, 1233 (11th Cir. 2002) (citation omitted).




                                           5
      The district court correctly determined that no national origin discrimination

claim appeared in Qian’s original complaint. The court also correctly concluded

that leave to amend was necessary in order to include such a claim.

      The court’s denial of leave to amend was not an abuse of discretion for

several reasons. For example, by the time Qian sought leave to amend, the period

for amendment as of right had passed, discovery had closed, and a trial date was

imminent. Fed. R. Civ. P. 15(a), (c).

      The proposed amendment was also futile. Qian had 90 days to file a

discrimination claim, after receiving his "right-to-sue" letter from the EEOC.

Pinkard, 678 F.3d at 1218. The instant complaint was filed within that time

period, but it did not allege discrimination. The proposed amendment also fit none

of the requirements of the "relation back" doctrine. See Fed. R. Civ. P. 15(c).

Specifically, it did not arise from the same transaction or occurrence as his

complaint—which focused solely on a denial of due process. Accordingly, the

district court did not abuse its discretion by denying Qian leave to amend, and it

committed no error in basing that decision upon the legal determination that

Qian’s amendment would have been futile, as a time-barred discrimination claim.

Accordingly, we affirm the district court in this regard.




                                          6
                                          II.

      We review a district court order granting summary judgment de novo, and

view all of the facts in the record in the light most favorable to the non-moving

party, drawing inferences in his favor. Houston v. Williams, 547 F.3d 1357, 1361

(11th Cir. 2008).

      Summary judgment requires the movant to show that “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is material if it is a legal element of

the claim under the applicable substantive law which might affect the outcome of

the case. It is genuine if the record taken as a whole could lead a rational trier of

fact to find for the nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc.,

594 F.3d 798, 807 (11th Cir. 2010) (citation and quotation omitted). The

nonmoving party cannot create a genuine issue of material fact through

speculation, conjecture, or evidence that is “merely colorable” or “not significantly

probative.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.

2505, 2511, 91 L. Ed.2d 202 (1986); see also Fed. R. Civ. P. 56(e)(2).

      The Fifth Amendment provides that “[n]o person shall be . . . deprived of

life, liberty, or property, without due process of law.” U.S. Const. amend. V.

“[C]laims of entitlement, under the due process clause, must be supported by some


                                           7
statute, legal rule, or mutually explicit understanding.” Todorov v. DCH

Healthcare Authority, 921 F.2d 1438, 1463 (11th Cir. 1991).

      When appropriate, we review a procedural due process claim, first, by

determining whether the plaintiff had a protected liberty or property interest that

was infringed by government action. Ross v. Clayton County, Ga., 173 F.3d 1305,

1307 (11th Cir. 1999) (analyzing procedural due process under the Fourteenth

Amendment); see Dusenberry v. United States, 534 U.S. 161, 167, 122 S. Ct. 694,

699, 151 L. Ed.2d 597 (2002) (the Fourteenth Amendment’s Due Process Clause

and Fifth Amendment’s Due Process Clause prohibit the same activity, with the

Fifth simply applying to federal officials, rather than state). No property right in

government employment exists if an employee is subject to discharge at will and

no showing of good cause is necessary to terminate his employment. See Davis. v.

Mobile Consortium of CETA, 857 F.2d 737, 741 (11th Cir. 1988). However, a

physician’s medical staff privileges can be a property interest protected by the

Constitution’s due process guarantees. El Shahawy v. Harrison, 875 F.2d 1529,

1532-33 (11th Cir. 1989). If we determine that a deprivation of a protected

interest took place, then we must determine if the individual in question received

sufficient process regarding that deprivation. Ross, 173 F.3d at 1307.




                                          8
            We conclude that, to the extent a cause of action was available to

Qian to remedy the denial of due process, the district court properly granted

summary judgment to the VA.

      AFFIRMED.




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