* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 2 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

RONALD JESSE LEWIS, M.D.,

Plaintiff-Appellant,

v. DEPARTMENT OF HEALTH AND HOSPITALS, CITY AND COUNTY OF DENVER,

Defendant-Appellee. No. 98-1341 (D.C. No. 97-S-1039) (D. Colo.)

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff appeals from the district court’s grant o f summary judgment on his claim brought pursuant to 42 U.S.C. § 1983. Plaint iff applied for jobs at what is now Denver Health Medical Center, which is run by d efendant. The hospital did not hire plaintiff; he asserts that the positions w ere filled before they were advertised. As a result, plaintiff maintains that his due process rights were violated because defendant deprived him of his prop erty interest in fair consideration for prospective employment. We review the grant of summary judgment de novo , applying the same standard as the district court. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). Federal R. Civ. P. 56(c) dictates that summ ary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See also id. A constitutional claim of deprivation of due proces s depends on the existence of a property or liberty interest. See Board of Regents v. Roth , 408 U.S. 564, 576-78 (1972). We determine the existence of a property interest for purposes of a violation of due process by looking to state law. See Conaway v. Smith , 853 F.2d 789, 793 (10th Cir. 1988). Here, plaint iff claims a property interest in “fair consideration for public employme nt.” Appellant’s Br. at 4. Like the district court, we are unable to find any Color ado authority recognizing such a property interest. We decline plaintiff’s invitati on to recognize a property interest1 The district court identified several reasons why p laintiff’s claim would fail

even if it had recognized a property interest in fa ir consideration for prospective employment, and we agree with the district court’s analysis on those points. In addition, we note that plaintiff consistently argue d to the district court that defendants failed to adhere to its hiring procedure s, which he identified as requiring “advertisement of the position, consideration of applicants who apply within the application period, and ranking of appli cants.” Appellant’s App. at 61 (plaintiff’s response to defendant’s motion for sum mary judgment), 81 (plaintiff’s supplemental brief in opposition to summary judgment). In his reply brief on appeal, plaintiff argues for the first time that de fendant did not adhere to its hiring procedures because the Career Service Author ity rules state that recruitment consists of notifying the greatest rele vant population of job opportunities. We will not consider this specific argument on appeal because plaintiff did not present this theory to the district court. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc. , 100 F.3d 792, 798-99 (10th Cir.), opinion amended on other grounds , 103 F.3d 80 (10th Cir. 1996). -3- in fair consideration for prospective employment ba sed on the authority of a single district court case from the Western Distric t of New York, and absent such recognition by Colorado courts. We affirm the dist rict court’s grant of summary judgment for substantially the same reasons stated in its order of July 31, 1998. 1
AFFIRMED. Entered for the Court Monroe G. McKay Circuit Judge