* This order and judgment is not binding precedent, except under the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.

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, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
-2-

Plaintiff appeals from the district court’s grant of summary judgment on his

claim brought pursuant to 42 U.S.C. § 1983. Plaintiff applied for jobs at what is

now Denver Health Medical Center, which is run by defendant. The hospital did

not hire plaintiff; he asserts that the positions were filled before they were

advertised. As a result, plaintiff maintains that his due process rights were

violated because defendant deprived him of his property 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 summary 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 process 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, plaintiff claims a property

interest in “fair consideration for public employment.” Appellant’s Br. at 4. Like

the district court, we are unable to find any Colorado authority recognizing such a

property interest. We decline plaintiff’s invitation to recognize a property interest
1 The district court identified several reasons why plaintiff’s claim would fail

even if it had recognized a property interest in fair consideration for prospective

employment, and we agree with the district court’s analysis on those points. In

addition, we note that plaintiff consistently argued to the district court that

defendants failed to adhere to its hiring procedures, which he identified as 

requiring “advertisement of the position, consideration of applicants who apply

within the application period, and ranking of applicants.” Appellant’s App. at 61

(plaintiff’s response to defendant’s motion for summary judgment), 81 (plaintiff’s

supplemental brief in opposition to summary judgment). In his reply brief on

appeal, plaintiff argues for the first time that defendant did not adhere to its

hiring procedures because the Career Service Authority rules state that

recruitment consists of notifying the greatest relevant 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 based on the authority of a

single district court case from the Western District of New York, and absent such

recognition by Colorado courts. We affirm the district 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