FILED

United States Court of Appeals

Tenth Circuit

October 17, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHELLE LYMAN; HELEN

VALDEZ; DONNA SINGER; FRED

RIGGS,

Plaintiffs - Appellants,

and

DR. STEVEN MACARTHUR; DR.

NATHANIEL PENN; CANDACE

LAWS; LINDA CACAPARDO; SUE

BURTON; AMY TERLAAK; ALISON

DICKSON; CANDACE HOLIDAY;

NICOLE ROBERTS, 

Plaintiffs,

v.

SAN JUAN COUNTY; SAN JUAN

HEALTH SERVICES DISTRICT; J.

TYRON LEWIS, Commissioner; BILL

REDD, Commissioner; CRAIG

HALLS; REID M. WOOD; CLEAL

BRADFORD; ROGER ATCITTY;

JOHN LEWIS; JOHN

HOUSEKEEPER; KAREN ADAMS;

PATSY SHUMWAY; DR. JAMES D.

REDD; DR. L. VAL JONES; DR.

MANFRED R. NELSON; RICHARD

BAILEY; MARILEE BAILEY; ORA

LEE BLACK; GARY HOLLADAY;

LORI WALLACE, a/k/a Laurie

Walker; CARLA GRIMSHAW;

GLORIA YANITO; JULIE

BRONSON; LAURIE SCHAFER;

LYN STEVENS, San Juan County

No. 14-4003

(D.C. No. 2:00-CV-00584-BSJ)

(D. Utah)
Commissioner; MANUAL MORGAN,

San Juan County Commissioner;

NETTIE PRACK, in his official

capacity only; GLEN IMEL, in his

official capacity only,

Defendants - Appellees.

--------------------------------------------

SUSAN ROSE,

Attorney - Appellant.

ORDER AND JUDGMENT*

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

Attorney-Appellant Susan Rose ostensibly challenges the district court’s

denial of injunctive relief on behalf of named Plaintiffs-Appellants Michelle

Lyman, Helen Valdez, Donna Singer, and Fred Riggs. In substance, however, the

instant proceeding is an improper attempt by Ms. Rose to obtain relief in federal

* Having examined the briefs and appellate record, this panel has

decided 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.

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.

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court from attorney-discipline proceedings pending against her in Utah. We are

not situated to entertain this appeal and consequently dismiss it on the ground of

abstention under Younger v. Harris, 401 U.S. 37 (1971).1

I

In 1999, Ms. Rose represented Plaintiffs-Appellants and the abovecaptioned Plaintiffs (collectively, “Plaintiffs”) in proceedings in the Navajo

Nation District Court.2

 She later served as counsel in Plaintiffs’ attempt to

enforce the tribal court’s orders by filing suit in the District of Utah—a matter

that was ultimately resolved in Defendants’ favor. See MacArthur v. San Juan

Cnty., 497 F.3d 1057, 1077 (10th Cir. 2007) (affirming the district court’s refusal

to invade the province of the tribal court). Not to be deterred, however, Ms. Rose

has continued to lodge filings pertaining to this matter—purportedly on Plaintiffs’

behalf—for the better part of a decade. She has pursued that course despite

judicial determinations that all dispositive issues in the MacArthur litigation had

been resolved with finality, see MacArthur v. San Juan Cnty., 566 F. Supp. 2d

1239, 1250 (D. Utah 2008) (“The plaintiffs asked, and they received an answer,

albeit one not to their liking. Their question having been answered by the court

1 Ms. Rose has also filed several motions in this court by which she

asks the panel to (1) certify legal questions to the Supreme Court; (2) remand the

case to the district court; and (3) expedite the motion to remand. Because we

have determined that the appeal must be dismissed, we deny her motions as moot.

2 Some of the litigants are enrolled members of the Navajo Tribe.

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of appeals, this court remains bound . . . .”), and despite receiving emphatic

advisements to this effect, see Dickson v. San Juan Cnty., 355 F. App’x 243, 249

(10th Cir. 2009) (“[W]e cannot emphasize . . . strongly enough that this matter is

at an end.”).

Ms. Rose’s role in the MacArthur lawsuit drew scrutiny from the Utah State

Bar’s Office of Professional Conduct (“OPC”), which initiated disciplinary

proceedings against her for “engag[ing] in conduct prejudicial to the

administration of justice [under Utah’s rules of professional conduct].” Aplt.

App., Vol. II, at 259A (Disciplinary Compl., filed Dec. 12, 2007). Resisting this

result, and seeking to enjoin the OPC, Ms. Rose filed numerous motions in

federal court in 2011—again claiming to do so on Plaintiffs’ behalf. The district

court disposed of these motions in August 2011, citing her abusive filing habits

and opining that Utah’s courts were entitled to manage attorney discipline

“without preemptive [federal] interference.” Id. at 164A (Order, filed Aug. 15,

2011) [hereinafter, “Motions Order”]. Ms. Rose did not appeal from that ruling.

Since the issuance of the Motions Order, Ms. Rose has filed three

additional federal lawsuits in her bid to halt the pending OPC matter. The first

was dismissed without prejudice, a result she did not challenge. The second was

dismissed “on various grounds, including . . . Younger abstention.” Rose v. Utah

State, No. 2:09-CV-695-TC, 2009 WL 5066687, at *1 (D. Utah Dec. 16, 2009). 

Ms. Rose did appeal from that dismissal, and a panel of our court

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“affirm[ed] . . . for the same reasons given by the district court,” including

Younger abstention. Rose v. Utah, 399 F. App’x 430, 436 (10th Cir. 2010). 

Although the panel assessed monetary sanctions, it declined to issue “an

injunction preventing Ms. Rose from pursuing . . . litigation related to the Utah

State Bar’s pending disciplinary proceedings.” Id. at 439.

When Ms. Rose filed the third of the above-referenced federal lawsuits

directed at state bar proceedings, all of the judges in the District of Utah recused. 

Her case was reassigned to the United States District Court for the District of

New Mexico, which (1) denied Ms. Rose’s motion for preliminary injunctive

relief (citing failure to show a likelihood of success on the merits), and (2)

subsequently dismissed her underlying complaint and imposed attorney’s fees,

costs, and filing restrictions.

Ms. Rose appealed from the order denying injunctive relief and from the

dismissal of her third lawsuit. A panel of this court dismissed her interlocutory

appeal as moot, observing that the District of New Mexico district court had

“recognized that Ms. Rose had previously litigated and lost the Younger issue in

two prior federal lawsuits and therefore was collaterally estopped from litigating

the same issue again in this, her third federal action.” Rose v. Utah State Bar,

444 F. App’x 298, 299 n.1 (10th Cir. 2011). Another panel of this court issued a

ruling in which it (1) affirmed the dismissal of her complaint and the imposition

of sanctions; (2) admonished her for pursuing “the same case on essentially the

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same grounds”; and (3) noted its recent denial of her “request for a writ of

mandamus seeking [similar] relief.” Rose v. Utah State Bar, 471 F. App’x 818,

822–23 (10th Cir. 2012). Presumably anticipating additional abusive filings, the

latter panel concluded:

Rose’s briefs lack the clarity we expect from an attorney and are

replete with incomprehensible prose, irrelevant arguments, and

mischaracterizations of the record. Accordingly, we warn Rose

that if she persists in relitigating issues in this court that are

related to her state disciplinary proceeding, her filings may be

summarily dismissed, and we may impose sanctions, including

damages and filing restrictions, as necessary and appropriate in

aid of our jurisdiction.

Id. at 823 (internal quotation marks omitted).

As noted supra, despite repeated warnings, Ms. Rose has continued seeking

redress in federal court. She filed two motions in December 2013—in the

original federal MacArthur lawsuit, again purportedly on Plaintiffs’ behalf—with

an eye toward enjoining her disciplinary matter. The District of Utah district

court denied both motions on January 8, 2014. In so doing, the court noted that it

was denying relief for the same reasons stated in the Motions Order and quoted

from that order as follows:

To date, as Ms. Rose acknowledges, the State court has imposed

no sanction or disciplinary punishment upon her based upon her

handling of this case. Counsel for the Bar assures this court that

the State court has not yet held an evidentiary hearing on the

merits of the Bar’s complaint against Ms. Rose on any of the

grounds alleged; that it is clearly an ongoing State judicial

proceeding; and that Ms. Rose will be afforded a full opportunity

to present her defense on those merits before sanction or

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discipline, if any, is imposed by the State court. It also appears

that the State court remains structurally capable of

resolving—either at the district level or on appeal—the

constitutional, legal and jurisdictional questions that Ms. Rose

persists in raising in both her State and federal proceedings. That

being so, the State court should be afforded the opportunity to do

so without preemptive interference by this court.

Aplt. App., Vol. II, at 158A (footnotes omitted) (citation omitted) (quoting

Motions Order). Ms. Rose styled the instant appeal as a challenge to the January

2014 order.

The events set forth herein prompted our clerk’s office to consider the

matter for summary disposition and to order Ms. Rose to “file a written

response . . . addressing whether the issues raised by this appeal are related to her

state disciplinary proceedings.” Order, No. 14-4003, at 2 (10th Cir., filed Jan. 28,

2014). Defendants responded as well, requesting that this court consider

assessing monetary sanctions and Tenth Circuit filing restrictions against Ms.

Rose. In light of the responses submitted—most saliently, Ms. Rose’s 152-page

filing, which did not dispute that this appeal concerns the OPC matter—we

ordered Ms. Rose to address sanctions and filing restrictions in her opening brief. 

She has failed to advance any meaningful argument in that regard or to

demonstrate that her state bar matter has been resolved.

II

In light of this procedural history, we reach two critical conclusions

regarding the case’s disposition. First, we harbor no doubt that Ms. Rose’s appeal

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is not a substantive challenge to the denial of injunctive relief. We therefore do

not engage in the traditional analysis for appeals that in fact dispute a district

court’s denial of a preliminary injunction. See Republican Party of N.M. v. King,

741 F.3d 1089, 1092 (10th Cir. 2013) (assaying for an abuse of discretion and

describing the usual four-prong test for such challenges). Second, we are

satisfied that summary dismissal of Ms. Rose’s appeal is justified. See 10th Cir.

R. 27.2(B) (permitting summary dismissal “[a]fter giving notice to the parties”);

United States v. Rubio-Ayala, 435 F. App’x 755, 758 (10th Cir. 2011) (“[W]e

have examined the relevant parts of the record, and we summarily dispose of this

appeal [under Rule 27.2(B)].”); see also 10th Cir. R. 27.2(A) (authorizing

summary dismissal “for any other reason a dismissal is permitted”). Ms. Rose has

received the requisite notice and opportunity to respond as regards summary

dismissal—and, in her response, has demonstrated that this appeal undeniably

relates to the state court action initiated by the OPC. Summary dismissal on

grounds of Younger abstention is therefore appropriate.

Based on Congress’s “desire to permit state courts to try state cases free

from interference by federal courts,” Younger, 401 U.S. at 43, Younger abstention

is warranted when (1) there are “ongoing state criminal, civil, or administrative

proceedings”; (2) the state court “offer[s] an adequate forum to hear the federal

plaintiff’s claims from the federal lawsuit”; and (3) the state proceeding concerns

“important state interests, matters which traditionally look to state law for their

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resolution or implicate separately articulated state policies,” Taylor v. Jaquez, 126

F.3d 1294, 1297 (10th Cir. 1997); accord Chapman v. Oklahoma, 472 F.3d 747,

749 (10th Cir. 2006). Abstention under Younger is mandatory once these

requirements have been met. See Amanatullah v. Colo. Bd. of Med. Exam’rs, 187

F.3d 1160, 1163 (10th Cir. 1999) (“Younger abstention dictates that federal courts

not interfere.” (emphasis added) (quoting Rienhardt v. Kelly, 164 F.3d 1296, 1302

(10th Cir. 1999)) (internal quotation marks omitted)); accord Walck v.

Edmondson, 472 F.3d 1227, 1233 (10th Cir. 2007).

The Supreme Court has expressly held that “[c]ircumstances fitting within

the Younger doctrine . . . include . . . ‘civil proceedings involving certain orders

that are uniquely in furtherance of the state courts’ ability to perform their

judicial functions.’” Sprint Commc’ns, Inc. v. Jacobs, --- U.S. ----, 134 S. Ct.

584, 588 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New

Orleans, 491 U.S. 350, 367–68 (1989)). The Court has likewise made clear that

state attorney-discipline proceedings are within Younger’s scope. See Middlesex

Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433–34 (1982)

(finding it “clear beyond doubt” that a state supreme court’s attorney-discipline

processes and procedures are “judicial in nature” (internal quotation marks

omitted)). We have heeded this instruction. See, e.g., Razatos v. Colo. Supreme

Court, 746 F.2d 1429, 1435 (10th Cir. 1984) (“[T]he challenged [attorney]

disciplinary proceedings are definitely judicial . . . .”); see also Vakas v.

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Rodriquez, 728 F.2d 1293, 1297 (10th Cir. 1984) (“The principles of comity and

federalism dictate that federal courts abstain from premature entry into state

judicial construction of . . . disciplinary procedures.”).

With these principles in mind, we find it pellucid that there is no legally

cognizable basis for undertaking a merits analysis of Ms. Rose’s frivolous appeal. 

It is well-settled in this circuit that “[a]n appeal is frivolous when the result is

obvious, or the appellant’s arguments of error are wholly without merit.” Braley

v. Campbell, 832 F.2d 1504, 1510 (10th Cir. 1987) (en banc) (internal quotation

marks omitted). Under Younger, the result could hardly be more obvious: we

must dismiss the appeal, and Ms. Rose must see her state court matter through to

completion. There is no dispute that (1) Ms. Rose’s OPC matter is one of the

“ongoing” state proceedings contemplated by Younger and Middlesex; (2) she

could raise in state court the same claims brought here (i.e., her basic

disagreement with the propriety of the OPC charges), see, e.g., Dist. Ct. Doc.

1134, at 2 (Mot., filed Dec. 30, 2013) (“The simplest issue is that the Plaintiffs[’]

lawyer is being prosecuted . . . in state court.”); or (3) the issue of her

professional competence is an important matter of Utah law. Additionally, to the

extent her appeal could be construed as anything other than an attack on ongoing

state proceedings, it is nonetheless frivolous for lack of any cogent legal

argument. “Courts are in no way obligated to tolerate arguments that thoroughly

defy common sense,” Charczuk v. Comm’r of Internal Revenue, 771 F.2d 471,

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475 (10th Cir. 1985), and we are confident that this statement aptly describes Ms.

Rose’s filings.

Ultimately, it is clear that all three Younger requirements are present in Ms.

Rose’s case and that Ms. Rose has not met her “heavy burden to overcome the bar

of Younger abstention.” Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997)

(internal quotation marks omitted). These considerations lead ineluctably to the

conclusion that we are not situated to resolve the matter. We therefore dismiss

Ms. Rose’s appeal.

III

Ms. Rose has ignored numerous warnings that further frivolous filings

might subject her to filing restrictions. She has “no constitutional right of access

to the courts to prosecute an action that is frivolous or malicious.” Landrith v.

Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013) (per curiam) (quoting Tripati v.

Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per curiam)) (internal quotation

marks omitted). Our precedent establishes that we may invoke our “inherent

power” to impose “carefully tailored restrictions,” id. (quoting Cotner v. Hopkins,

795 F.2d 900, 902 (10th Cir. 1986)) (internal quotation marks omitted), so long as

“[her] abusive and lengthy history is properly set forth”—as we have done in Part

II, supra—and she is allowed to oppose the restrictions before they take effect,

Tripati, 878 F.2d at 353–54.

Subject to Ms. Rose’s opportunity to file written objections that we outline

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below, we propose to enjoin her from petitioning the Tenth Circuit Court of

Appeals for relief, either by appeal or through an original proceeding, unless she

complies with the following restrictions:

First, Ms. Rose may not file any documents in this court unless she is

represented by a licensed attorney—other than herself—who is admitted to

practice in this court. Her attorney must certify that, based on his or her review

of the proposed filing, Ms. Rose has stated a legally cognizable cause of action

that comports with all applicable federal and circuit rules of procedure.

Alternatively, if Ms. Rose seeks to proceed pro se, she must:

1. Submit a petition to the clerk of this court seeking leave to

file a pro se action and setting forth: (a) a list of all pro se

lawsuits currently pending or filed previously with this

court, including the name, number, and citation (if

applicable) of each case, and the current status or

disposition of the case; and (b) a list of all outstanding

injunctions or orders limiting Ms. Rose’s access to federal

court, including orders and injunctions requiring her either

to seek leave to file matters pro se or be represented by

counsel, with each matter identified by name, number, and

citation (if applicable), of all such orders or injunctions;

and

2. File with the clerk of this court a notarized affidavit

reciting the issues she seeks to present, including a short

discussion of the legal basis asserted in support and, if

appropriate, describing with particularity the order being

challenged. The affidavit must certify to the best of Ms.

Rose’s knowledge that the legal arguments being raised

are not frivolous or made in bad faith; that they are

warranted by existing law or a good-faith argument for the

extension, modification, or reversal of existing law; that

her petition or appeal is not being filed for any improper

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purpose; and that she will comply with all appellate and

local rules of this court.

Once filed, these documents shall be submitted to the chief judge of this

court or her designee for review. Without the approval of the chief judge or her

designee, the matter will be dismissed. If Ms. Rose’s submission is approved, an

order will be entered indicating that the matter shall proceed in accordance with

the Federal Rules of Appellate Procedure and Tenth Circuit Rules.

Within twenty-one days of the date of this order and judgment, Ms. Rose is

ordered to show cause why these filing restrictions should not issue. Her

response shall be in writing and shall be limited to fifteen pages, following the

font and type limitations set forth in Federal Rule of Appellate Procedure 32(a). 

Failure to respond shall result in the proposed injunction taking effect twentyeight days from the date of this order and judgment and applying to any matter

filed after that date. If Ms. Rose does file a timely, compliant response, the

proposed injunction will not enter unless this court so orders, after fairly

considering the response and ruling on Ms. Rose’s objections.

IV

We DISMISS Ms. Rose’s appeal on grounds of Younger abstention. 

Consistent with our proposal in Part III, supra, we also order Ms. Rose to file a 

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response within twenty-one days of this order and judgment.

 

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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