Alexander A. Stratienko, M.d. v. Chattanooga-Hamilton County Hospital Authority

No. 09-5485, orders of 6/08/2010 and 09/17/2010 (granting a motion by all parties to1
dismiss Monroe).
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0718n.06
Nos. 09-5334, 09-5485, 09-6005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALEXANDER A. STRATIENKO, M.D.,
Plaintiff-Appellant,
v.
CHATTANOOGA-HAMILTON COUNTY
HOSPITAL AUTHORITY; MEL TWIEST,
individually and in his official capacity as Chief
Medical Officer; V. STEPHEN MONROE, JR.,
M.D.; MITCHELL L. MUTTER, M.D.;
DANIEL F. FISHER, M.D.; NITA SHUMAKER, M.D.,
Defendants-Appellees.
______________________________
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
O P I N I O N
Before: BOGGS, MOORE, and KETHLEDGE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Six years of litigation in state and federal
courts have stemmed from Dr. Alexander Stratienko pushing Dr. Stephen Monroe in the staff break
room at Erlanger Hospital. After the hospital suspended Stratienko’s privileges, he sued Monroe,
the hospital, and its executive staff members, alleging violations of due process and equal protection,
federal and state antitrust law, the Tennessee constitution, and contract and tort law. Although the
two doctors have settled their dispute, Stratienko’s claims against the hospital and its executive staff1

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remain before this court. Stratienko has appealed unfavorable discovery rulings and the district
court’s grant of summary judgment to the defendants. For the reasons set forth below, we AFFIRM.
I. BACKGROUND
Stratienko is an interventional cardiologist who, at the time of these events, practiced at
Erlanger Hospital, a state entity affiliated with the Chattanooga-Hamilton County Hospital Authority.
Monroe was also practicing at Erlanger. After speaking with another physician, Stratienko came to
believe that Monroe had not performed enough peripheral vascular interventional procedures to sit
on the carotid-stenting committee at Erlanger. Stratienko reported his concerns to Dr. Daniel Fisher,
Erlanger’s Chief of Medical Staff. Monroe learned of the report on September 16, 2004. Angry,
Monroe sought out Stratienko in the staff break room.
According to the only witness, Missy Fugatt, Monroe asked Stratienko if Stratienko had
“issues regarding [Monroe’s] training.” 1:07-cv-00258 R. 310-13 (Fugatt’s Notes). The
confrontation escalated until “Stratienko was yelling [at] Monroe,” cursed at him, and got up “out
of his seat quickly [and] appeared to lunge towards Monroe.” Id. Both doctors agree that Stratienko
made physical contact with Monroe, but they disagree about the extent of the contact. Stratienko
says that he “pushed [Monroe] with . . . three fingers” to remove him from the doorway, 1:07 R. 85-2
(Stratienko Dep. at 133-19 to 133-21); Monroe claims that Stratienko “hit [him] forcefully in the
chest,” causing “residual discomfort and erythema [more than] 30 minutes” later, 1:07 R. 330-1 at
57–58 (Confidential Occurrence Report). Fugatt did not see the physical contact, but she witnessed
Monroe “trip[] backwards” in response. 1:07 R. 6-2 at 23–24 (Fugatt Dep. 60–61).

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Monroe filed an incident report, which prompted Dr. Mel Twiest, Chief Medical Officer at
Erlanger, to investigate. First, Twiest spoke to Monroe and Fugatt. Next, Twiest informed members
of the Medical Executive Committee (“Committee”)—Fisher; Dr. Mitchell Mutter, Vice Chief of
the Medical Staff; and Dr. Nita Shumaker, Secretary of the Medical Staff—but only sought
Shumaker’s opinion because Fisher and Mutter had conflicts of interest. Twiest signed a letter of
suspension, which he planned to give to Stratienko when they met “[u]nless [their conversation
revealed] something dramatically different than what everyone ha[d] described.” 1:08-cv-00026 R.
142-5 at 14 (Twiest Note to File). Twiest spoke to Stratienko the next day. When Twiest asked
what had happened, Stratienko confirmed that he had touched Monroe. Twiest handed Stratienko
the letter of suspension dated September 16, 2004. The Credentials Committee recommended that
the Committee uphold the suspension, which it did on September 24, 2004. The Committee
informed Stratienko that he could request to appear at a Hearing Panel.
On September 20, 2004, Stratienko sued Erlanger and Twiest in Tennessee state court (“Case
One”). The state court temporarily restrained the enforcement of Stratienko’s suspension. An
interlocutory appeal delayed the resolution of the case. Over three years later, on October 4, 2007,
Stratienko filed his Second Amended Complaint to add Monroe, Mutter, Fisher, and Shumaker as
defendants. His claims ranged from federal and state constitutional violations and antitrust
violations to breach of contract and state law torts. The defendants removed the case to the United
States District Court for the Eastern District of Tennessee. After the district court denied his motion
to remand the case, Stratienko withdrew his motion to strike his federal claims.

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In 2008, Stratienko again sued Erlanger in state court (“Case Two”). Erlanger had
conditioned Stratienko’s 2007 reappointment on the outcome of Case One. In Case Two, Stratienko
claimed that Erlanger had waived its ability to condition future contract renewals by not conditioning
his 2005 renewal. Case Two was removed to federal court and consolidated with Case One, and the
district court denied a motion to remand Case Two.
During discovery, the magistrate judge found that Erlanger had committed discovery
violations by (1) destroying Twiest’s computer hard drive after he retired; (2) not producing all of
laboratory manager Craig Cummings’s journal notes; and (3) destroying a phone log kept by
Twiest’s assistant. The magistrate judge did not sanction Erlanger for denying the existence of
procedure logs from the cardiac catheterization lab because Stratienko had not certified his
compliance with the conference requirement of Federal Rule of Civil Procedure 37(a)(1). The
magistrate judge found several sanctions appropriate: reimbursement for Stratienko’s expenses,
adverse inferences, and additional discovery as to the three violations. The district judge did not
consider the sanctions until after it had disposed of the case, but later ordered Erlanger to pay $1,000
of the $22,853.50 reimbursement for attorneys’ fees that Stratienko had requested. The district judge
did not rule on adverse inferences or the issue of additional discovery.
On March 17, 2009, the district court ruled on dispositive motions from all defendants except
Erlanger. The statute of limitations had run for all claims against Mutter, Fisher, and Shumaker
except the antitrust claims, so the court dismissed the time-barred claims. On the antitrust claims,
the district court granted state-action immunity to Mutter, Fisher, and Shumaker, who acted on

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behalf of the hospital, and to Twiest, a state employee. The district court granted Twiest’s motion
for summary judgment on the merits of the claims regarding substantive and procedural due process
and equal protection. Because the issues as to the hospital were indistinguishable from those as to
Twiest, the district court also granted summary judgment sua sponte to Erlanger. With only state-
law claims remaining, the district court remanded the case to state court.
II. ANALYSIS
The district court had federal-question jurisdiction over Stratienko’s federal claims and
exercised supplemental jurisdiction over the state-law claims. 28 U.S.C. §§ 1331, 1367, 1441(a).
This court has jurisdiction over the district court’s final decision pursuant to 28 U.S.C. § 1291.
A. Remand
We review the denial of a motion to remand de novo. See Eastman v. Marine Mech. Corp.,
438 F.3d 544, 549 (6th Cir. 2006). Stratienko withdrew his motion to amend his complaint and, to
this day, alleges violations of his federal due process and equal protection rights. The district court
did not err by retaining these indisputably federal claims, and it properly exercised its supplemental
jurisdiction over the remainder of both cases.
B. Conversion of the Motions to Dismiss to Motions for Summary Judgment
The district court should have converted the Federal Rule of Civil Procedure 12(b)(6)
motions into motions for summary judgment because it accepted outside evidence. See Rule 12(d);
Max Arnold & Sons, LLC v. W.L. Hailey & Co., 452 F.3d 494, 503 (6th Cir. 2006) (applying Rule
12(c)). Conversion to summary judgment normally requires notice and an opportunity to respond.

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With no citations to the record or to case law, Stratienko baldly asserts that the district court2
did not take facts in Stratienko’s favor when deciding the motions for summary judgment. He has
waived the claim by failing to argue the point. See Buziashvili v. Inman, 106 F.3d 709, 719 (6th Cir.
1997).
Stratienko “incorporates . . . by reference” about twenty pages from his district court filings3
in which he argued for longer statutes of limitations. We will not review those arguments. See
Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 452-53 (6th Cir. 2003) (rejecting
arguments incorporated by reference from pleadings submitted to lower courts because the practice
circumvents word limitations and forces the court “to play archaeologist with the record”) (internal
quotation marks omitted).
6
Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 487–88 (6th Cir. 2009). But the failure to
notify Stratienko was harmless because he “in fact had a sufficient opportunity to present pertinent
materials.” Max Arnold, 452 F.3d at 504; 1:07 R. 210-1 to 210-24 (cataloging over 375 pages of
evidence that accompanied Stratienko’s response). We will review the district court’s rulings de
novo as ones for summary judgment, drawing all inferences in Stratienko’s favor, and ruling for the
defendants if “there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Miller v. Sanilac Cnty., 606 F.3d 240, 246 (6th Cir. 2010).2
C. Tolling the Statute of Limitations
Stratienko waited over three years before naming Mutter, Fisher, and Shumaker as
defendants. Relevant Tennessee law provides a one-year statute of limitations for civil rights claims
and a three-year statute of limitations for claims about tortious interference with contracts. Tenn.3
Code Ann. §§ 28-3-104 to -105; 1:08 R. 303 (Dist. Ct. Op. Granting Summ. J. at 16–23). Tennessee
tolling provisions apply to this case, see Bishop v. Children’s Ctr. for Developmental Enrichment,

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618 F.3d 533, 538 (6th Cir. 2010), but the three bases for tolling that Stratienko mentions are
inapplicable.
First, Stratienko has not shown continuing misconduct. Under Tennessee law, the statute of
limitations does not run until “the last overt act” in a continuing conspiracy. Emerson v. Machamer,
431 S.W.2d 283, 286 (Tenn. 1968). Contrary to Stratienko’s interpretation, however, the letters
between him and Fisher do not create a genuine issue of material fact about ongoing theft of
Stratienko’s patients. The district court correctly found that some letters represented “Fisher turning
over a patient to Plaintiff for longitudinal followup” and Fisher explaining that Monroe “will
continue to evaluate kidney transplant patients . . . per an existing agreement, in the name of
consistency and standardization of cardiac evaluations.” 1:08 R. 303 (Dist. Ct. Op. Granting Summ.
J. at 8); see also 1:08 R. 55-15 at 3 (Letters). Case Two and the medical-staff election
memorandum—in which the defendants alluded to Stratienko’s “personal battles with the valid peer
review process,” 1:08 R. 55-12 (Election Memorandum)—are irrelevant to the facts underlying peer
review, so neither demonstrates continuing misconduct.
Second, the doctrine of equitable tolling is not recognized in Tennessee law. Norton v.
Everhart, 895 S.W.2d 317, 321 (Tenn. 1995); B & B Enters. of Wilson Cnty., LLC v. City of
Lebanon, No. M2008-00572-COA-R9-CV, 2009 WL 130188, at *3 n.4 (Tenn. Ct. App. Jan. 14,
2009) (unpublished opinion), aff’d, 318 S.W.3d 839 (Tenn. 2010).
Third, the discovery rule does not toll the relevant Tennessee statute of limitations. In
Tennessee, a claim accrues when a plaintiff learns or reasonably should have discovered “the

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occasion, the manner[,] and [the] means” of his injury and the people who caused it. Foster v.
Harris, 633 S.W.2d 304, 305 (Tenn. 1982). Stratienko cannot credibly deny knowledge of or the
ability to discover who was charged with administering and conducting professional reviews at the
hospital where he worked. See, e.g., Steele v. Tenn. Jaycees, Inc., No. 01-A-01-9505-CH00214,
1995 WL 623067, at *5 (Tenn. Ct. App. Oct. 25, 1995) (unpublished opinion) (“The plaintiffs . . .
cannot argue that they had no idea who the responsible parties might be, since they were aware that
the[] decedent was attending Camp Discovery at the time of his death.”). Because tolling was
unavailable, Stratienko’s non-antitrust claims against Mutter, Fisher, and Shumaker were time
barred.
D. Constitutional Claims Against Twiest
The due process and equal protection claims against Twiest were timely, but summary
judgment was appropriate as to these claims on the merits.
Stratienko’s equal protection claim, even if not waived, cannot survive the rational-basis
scrutiny to which it is subject. Stratienko, who is not a member of a suspect class, is also not a
cognizable “class of one.” Medical-privileges revocation is discretionary: no simple calculation will
determine whether a physician should be suspended, and each judgment is fact-laden. See Benjamin
v. Brachman, 246 F. App’x 905, 928 (6th Cir. 2007) (unpublished opinion) (applying Village of
Willowbrook v. Olech, 528 U.S. 562 (2000), to the medical-privileges context).
The requirements of due process are “flexible” to match the circumstances. Mathews v.
Eldridge, 424 U.S. 319, 334 (1976). Although Stratienko argues to the contrary, compliance with

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The district court’s prior denial of summary judgment to Erlanger on ostensibly similar legal4
grounds is irrelevant to our de novo review.
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organizational bylaws is not a mandatory requirement of due process. Purisch v. Tenn.
Technological Univ., 76 F.3d 1414, 1423 (6th Cir. 1996). Even assuming that Stratienko received
inadequate pre-suspension due process, post-suspension notice and opportunity to be heard can
suffice in the context of hospital-privilege suspensions. See Beyer v. Lakeview Cmty. Hosp., No.4
98-1813, 1999 WL 552606, at *3 (6th Cir. July 26, 1999) (unpublished opinion); accord Caine v.
Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991) (en banc); Everett v. Franciscan Sisters Healthcare,
Inc., 882 F.2d 1383, 1387 (8th Cir. 1989). Disruption and consequent distraction affect hospital
operations in a way that is intrinsically linked with safety. See Leach v. Jefferson Parish Hosp. Dist.
No. 2, 870 F.2d 300, 303 (5th Cir. 1989). Stratienko’s deprivation was moderated because his
suspension was temporary and only effective at one hospital. See id. The later availability of a
Hearing Panel provided protection against the risk of wrongful deprivation.
E. Antitrust Claims
There is no evidence that Mutter or Fisher participated in Stratienko’s suspension, so they
could not have conspired to restrain interstate trade. Summary judgment as to them was proper.
Twiest and Shumaker have state-action immunity. The Sherman Act does not prohibit states
from participating in anti-competitive conduct. Parker v. Brown, 317 U.S. 341, 350–51 (1943).
State-action immunity extends to state subdivisions such as Erlanger when they act “pursuant to a
clearly expressed state policy” that “displace[s] competition with regulation or monopoly public

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service.” Town of Hallie v. City of Eau Claire, 471 U.S. 34, 38–40 (1985). Tennessee law provides
a clear policy of letting private-act hospitals like Erlanger determine privileges without regard to
competitive consequences. Jackson, Tenn. Hosp. Co. v. W. Tenn. Healthcare Inc., 414 F.3d 608, 614
(6th Cir. 2005).
Jim Brexler, Erlanger’s Chief Executive Officer, had designated Twiest, a state employee,
to handle all summary suspensions. Twiest is entitled to state-action immunity because he acted with
authority. Whether he acted with malice is irrelevant. Cohn v. Bond, 953 F.2d 154, 159 (4th Cir.
2001).
Generally, non-employees like Shumaker are immune when they (1) perform “official action”
at the direction of a local-government official acting in an official capacity, 15 U.S.C. § 36, and (2)
are actively supervised to ensure that their “conduct promotes state policy” and not “individual
interests,” Patrick v. Burget, 486 U.S. 94, 101 (1988). But “[w]hen the staff as a group makes
decisions or recommendations for the hospital in areas that do not affect the market in which they
compete as individuals,” staff members act “as agents of the hospital.” Nurse Midwifery Assocs. v.
Hibbett, 918 F.2d 605, 614 (6th Cir. 1990); accord Crosby v. Hosp. Auth. of Valdosta & Lowndes
Cnty., 93 F.3d 1515, 1529 (11th Cir. 1996); Cohn, 953 F.2d at 157–58. The documents that
Stratienko cites do not demonstrate that Shumaker, a pediatrician, was in competition with
Stratienko. Thus, she is entitled to state-action immunity.

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F. Sua Sponte Grant of Summary Judgment to Erlanger
We review “the substance” of the sua sponte grant of summary judgment de novo and the
“procedural decision to enter summary judgment sua sponte . . . for abuse of discretion.” Shelby
Cnty. Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d
926, 931 (6th Cir. 2000). The need for actual notice “depends on the facts and circumstances of each
case,” and it is required if a “party is likely to be surprised by the proceedings.” Id. (internal
quotation marks omitted). Stratienko did not have notice, but he could not have been surprised by
the court’s decision. Even now, Stratienko has not explained—and it is not obvious—how his
claims against Erlanger differed from the factually identical claims that he asserted against the other
defendants. With respect to both substance and procedure, summary judgment was proper.
G. Discovery Disputes
We review discovery sanctions and limits on discovery for abuse of discretion. B & H Med.,
LLC v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir. 2008); Phillips v. Cohen, 400 F.3d 388, 396
(6th Cir. 2005). “An abuse of discretion occurs when (1) the district court’s decision is based on an
erroneous conclusion of law, (2) the district court’s findings are clearly erroneous, or (3) the district
court’s decision is clearly unreasonable, arbitrary or fanciful.” Toth v. Grand Trunk R.R., 306 F.3d
335, 343 (6th Cir. 2002) (internal quotation marks omitted). The district court did not abuse its
discretion in any of the contested discovery rulings.

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1. Attorneys’ Fees
The district court did not err in awarding only $1,000 of the attorneys’ fees that Stratienko
sought under Federal Rule of Civil Procedure 37(a)(5). The district court relied on cases that
invoked Rule 37(c), but deterrence of vexatious conduct is a purpose of Rule 37(a)(5) as well. See
Cunningham v. Hamilton Cnty., 527 U.S. 198, 207–09 (1999). The district court’s statements show
that it knew compensation was another purpose of the award. Thus, the district court employed the
correct legal standard. It also provided several reasons for the small award that were neither
unreasonable nor arbitrary: (1) specific deterrence was less important because litigation had ended;
(2) the spoliated evidence was “of de minimis, if any, value”; and (3) Stratienko’s “pugnacious” and
“scorched-earth approach to litigation” made it unfair to use Erlanger as an example for general
deterrence. 1:07 R. 556 (Dist. Ct. Op. on Sanctions 11-12).
2. Adverse Inference for Spoliation of Evidence
Six weeks before summary judgment was entered, Stratienko moved for an application of
adverse inferences regarding material not produced from Twiest’s hard drive, Cummings’s journal
notes, and the phone log of Twiest’s secretary, but the district court considered the issue only
afterward, when it denied the motion as moot. Even if we credit Stratienko’s assertion that this
denial constitutes a final, appealable order declining to impose adverse inferences, any error was
harmless because summary judgment would have been appropriate even with adverse inferences.
Cf. Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 797 (6th Cir. 2006) (unpublished

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opinion). The district court properly found that the evidence and corresponding inferences were
“discrete” and “of de minimis, if any, value.” 1:07 R. 556 (Dist. Ct. Op. on Sanctions 12).
We leave to the Tennessee courts the choice of what, if any, adverse inferences to apply in
the remainder of the case that has been remanded to the state courts.
3. Sanctions for Failure to Comply with Production Orders
Erlanger never filed a notice of appeal, so we lack jurisdiction to reduce its sanctions. See
FED. R. APP. P. 3(a)(1); Francis v. Clark Equip. Co., 993 F.2d 545, 552 (6th Cir. 1993).
The district court did not err by not sanctioning Erlanger when it failed to produce the lab
procedure log. It was within the court’s discretion to find that past conferrals mentioned in other
motions fail the requirement of Rule 37(a)(1) that each motion “must include” certification of a
good-faith attempt to confer.
4. Additional Discovery
Stratienko cannot “show that he could obtain information through [reopened] discovery that
would disclose material facts.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (internal
quotation marks omitted). The requested deposition of lab-manager Cummings would relate to pre-
deprivation due process, which is immaterial. The district court also acted within its discretion when
it concluded that searching hard drives and deposing the e-discovery company would expend time
and money unnecessarily.

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III. CONCLUSION
For the reasons discussed above, we AFFIRM the district court’s discovery rulings and its
grant of summary judgment to the defendants.

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