                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 23, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    SUSAN ROSE,

                Plaintiff–Appellant,

    v.                                                   No.  11-4095
                                                (D.C. No.  2:10-CV-01001-WPJ)
    UTAH STATE BAR, Office of                              (D. Utah)
    Professional Conduct; BARBARA
    TOWNSEND; BILLY WALKER;
    ARTHUR BERGER; VERNICE
    TREASE, Judge,

                Defendants–Appellees. 


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges. 



         Susan Rose appeals from the district court’s dismissal of her action.  We

have jurisdiction under 28 U.S.C. § 1291 and affirm. 




*
       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.  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not binding precedent, except under the doctrines of law of the case, res judicata,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 Fed.  R. App.  P. 32.1 and 10th Cir.  R. 32.1. 
                                          I

      Rose is an attorney admitted to practice law in the State of Utah.  She filed

this action against the Utah State Bar, its Office of Professional Conduct

(“OPC”), OPC attorneys Barbara Townsend and Billy Walker, chairman Arthur

Burger of the Utah Supreme Court’s Ethics and Discipline Committee

(collectively, the “Bar Defendants”), and a Utah State judge, the Honorable

Vernice Trease.  Rose claims the Bar Defendants violated her constitutional rights

by pursuing a disciplinary proceeding against her in Utah state court.  Rose also

alleges that Judge Trease, who was assigned to hear the disciplinary proceeding,

failed to explain the basis for her court’s jurisdiction, engaged in ex parte contact

with an OPC attorney, and prohibited Rose from filing a motion to recuse.  1

      The district court granted defendants’ motions to dismiss under Fed.  R.

Civ.  P. 12(b)(6).  It concluded that Judge Trease is entitled to absolute judicial

immunity.  As to the Bar Defendants, the court observed that Rose previously had

brought two materially identical actions that had been dismissed on Younger

abstention grounds.  2 See Younger v. Harris, 401 U.S. 37 (1971).  Accordingly,


1
       As of this writing, the state court had struck Rose’s answer to the complaint
and entered a default judgment against her as a sanction for her dilatory discovery
tactics.  A sanctions hearing was scheduled to begin in late February 2012. 
2
      Rose did not appeal the first dismissal, and we affirmed the second
dismissal, concluding in relevant part that Younger abstention was warranted
under Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S.
423 (1982).  See Rose v. Utah, 399 F. App’x 430, 435-36 (10th Cir.  2010). 

                                         -2-
the court held that issue preclusion bars Rose from relitigating the Younger issue. 

Because this is Rose’s third suit raising the same set of issues, the district court

granted the Bar Defendants’ motion for sanctions (attorneys’ fees and costs) in

the amount of $17,391.60, and enjoined Rose from filing further civil actions

pro se unless she meets certain preconditions.  This appeal followed. 

                                           II

                                           A

      Rose claims the district court committed a number of procedural errors. 

First, she argues that the district court should not have dismissed her case or

imposed filing restrictions without first holding a hearing.  The district court,

however, is granted discretion in determining whether to hold an oral hearing on a

motion to dismiss.  See Steele v. Fed.  Bureau of Prisons, 355 F.3d 1204, 1214

(10th Cir.  2003), abrogated on other grounds by Jones v. Bock, 549 U.S. 199

(2007).  Although Rose states that a hearing would have established the reasons

that this case differed from her previously dismissed actions, she has not

explained why she could not have adequately presented her arguments in writing. 

Thus, she has not shown that the district court abused its discretion.  As for the

filing restrictions, the court gave Rose notice and an opportunity to provide a

written response, which satisfies any due process concerns.  See Tripati v.

Beaman, 878 F.2d 351, 354 (10th Cir.  1989). 




                                          -3-
      Rose next claims that the district court should have converted the Bar

Defendants’ Rule 12(b)(6) motion into a motion for summary judgment because,

she claims, the court must have examined filings in her prior proceedings to

determine that issue preclusion applied.  However, to the extent the district court

looked to these filings, conversion was not required.  Although a court generally

must convert a motion to dismiss to one for summary judgment when the court

considers “matters outside the pleadings,” Fed.  R. Civ.  P. 12(d), a court need not

do so if it takes “judicial notice of its own files and records, as well as facts

which are a matter of public record.”  Tal v. Hogan, 453 F.3d 1244, 1265 n.24

(10th Cir.  2006) (quotation omitted).  The filings in the state-court disciplinary

proceedings and the two prior cases dismissed under Younger clearly fall into

these excepted categories. 

      Rose also argues that the district court judge 3 should have recused from a

hearing in which the court determined Rose’s interlocutory appeal was frivolous. 

Based on that finding, the court retained jurisdiction over the case while that

appeal was pending.  Rose’s interlocutory appeal has since been dismissed as

moot.  See Rose v. Utah State Bar, 444 F. App’x 298, 299-300 (10th Cir.  2011). 

Consequently, whether the district judge should have recused from the hearing is



3
       After Rose successfully obtained the recusal of all federal district judges
for the District of Utah, this case was assigned to the Honorable William P.
Johnson, United States District Court for the District of New Mexico. 

                                           -4-
also moot.  See Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir.  2001) (issue is

moot when no relief can be granted).  4

      In addition to these procedural issues, Rose provides the standard of review

for an award of attorneys’ fees, but no substantive argument.  She has therefore

waived appellate consideration of the district court’s award of attorneys’ fees. 

See Utah Envtl.  Cong.  v. Bosworth, 439 F.3d 1184, 1194 n.2 (10th Cir.  2006)

(issue mentioned in a brief but not addressed is waived). 

                                         B

      We turn to the merits of the district court’s judicial immunity ruling.  5 Our

review is de novo.  See Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1153

(10th Cir.  2011). “[ G]enerally, a judge is immune from a suit for money

damages.”  Mireles v. Waco, 502 U.S. 9, 9 (1991).  The immunity applies to

judicial acts, but not to “acts that simply happen to have been done by judges.” 

4
       Although not clearly presented in her briefs, to the extent Rose claims the
district court judge should have granted a separate motion to recuse from the case
completely, her argument fails because it is premised on the fact that the judge
ruled against her.  However, “for bias or prejudice to be disqualifying, it must
stem from an extrajudicial source[] unless the judge displays a deep-seated
favoritism or antagonism that would make fair judgment impossible.”  United
States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.  2004) (quotation and alteration
omitted).  We see no evidence of “favoritism or antagonism,” only a reflection of
“exasperation” with Rose, which is insufficient for recusal.  Id.
5
      Judge Trease argues that Rose has waived her right to appeal the district
court’s dismissal of the claims against Judge Trease on the ground of judicial
immunity by not raising the issue in her opening brief.  Although it is a close
question, we conclude that Rose did raise the issue in her opening brief, albeit
accompanied by minimal legal argument. 

                                         -5-
Forrester v. White, 484 U.S. 219, 227 (1988). “[ T]he factors determining whether

an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e.,

whether it is a function normally performed by a judge, and to the expectations of

the parties, i.e., whether they dealt with the judge in [her] judicial capacity.” 

Stump v. Sparkman, 435 U.S. 349, 362 (1978) (italicization omitted). 

       The conduct encompassed by Rose’s claim clearly satisfies both factors. 

That conduct consists entirely of acts Judge Trease performed in the normal

course of her judicial function, and Rose dealt with Judge Trease in her judicial

capacity.  It is of no moment that Rose believes Judge Trease erred in exercising

jurisdiction over the disciplinary matter.  See id. at 356 (“A judge will not be

deprived of immunity because the action [she] took was in error, was done

maliciously, or was in excess of [her] authority . . . .”). 

                                             C

       As to the district court’s application of issue preclusion, our review is

de novo.  Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir.  1997). “ Younger

abstention is jurisdictional,” D.L. v. Unified Sch.  Dist.  No.  497, 392 F.3d 1223,

1228 (10th Cir.  2004), and “dismissals for lack of jurisdiction preclude

relitigation of the issues determined in ruling on the jurisdictional question,” Park

Lake Res.  Ltd. Liab.  v. U.S. Dep’t of Agric.,  378 F.3d 1132, 1136 (10th Cir. 

2004) (quotation and alteration omitted).  Issue preclusion generally applies when

four elements are satisfied:

                                            -6-
      (1) the issue previously decided is identical with the one presented in
      the action in question, (2) the prior action has been finally
      adjudicated on the merits, (3) the party against whom the doctrine is
      invoked was a party, or in privity with a party, to the prior
      adjudication, and (4) the party against whom the doctrine is raised
      had a full and fair opportunity to litigate the issue in the prior action. 

Id. (quotation omitted). 

      Apparently contesting the first element of issue preclusion, Rose argues her

current suit presents issues other than those raised in her two previous cases.  She

points to her allegations that the Bar Defendants proceeded in bad faith or to

harass, which are recognized exceptions to Younger abstention, see Phelps,

122 F.3d at 889.  The district court rejected this argument, concluding that Rose’s

allegations of bad faith and harassment were based on a fundamental

misunderstanding of statements made by Townsend regarding Rose’s failure to

comply with discovery requests.  For substantially the same reasons the district

court gave, we agree with its conclusion that Rose’s allegations of bad faith or

harassment are baseless and that issue preclusion bars Rose from relitigating the

question of Younger abstention. 

      Rose also contends the district court erred in failing to consider her request

for a declaratory judgment, suggesting that a court’s authority to issue declaratory

orders constitutes an exception to the abstention doctrine.  This argument is

incorrect.  Under Younger, “‘the same equitable principles relevant to the

propriety of an injunction apply to a declaratory judgment.’”  D.L., 392 F.3d


                                          -7-
at 1228 (alterations omitted) (quoting Samuels v. Mackell, 401 U.S. 66, 73

(1971)). 

      Lastly, Rose suggests that the Utah state courts do not provide an adequate

forum for her constitutional claims.  However, we have previously rejected this

argument, see Rose, 399 F. App’x at 436, and do so again now.  6

                                         III

      In sum, this appeal wholly lacks merit.  This is the second time Rose has

unsuccessfully appealed the district court’s dismissal of the same case on

essentially the same grounds.  Further, we have recently denied Rose’s request for

a writ of mandamus seeking relief similar to that sought here.  We note that

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

incomprehensible prose, irrelevant arguments, and mischaracterizations of the



6
       In an apparent effort to buttress her claim that there is no adequate
state-court forum for her argument that the state district court lacked jurisdiction
in the disciplinary proceeding, Rose states that the Utah Supreme Court has
threatened to sanction her if she appeals.  But the Utah Supreme Court order she
cites reveals that the court denied Rose’s petition for discretionary appellate
review for the fifth time, instructing her that the court would not interrupt the
disciplinary proceeding prior to the entry of a final judgment.  The OPC
apparently moved for sanctions with regard to the fifth petition, and the court
stated it would defer ruling on that motion until Rose filed a direct appeal in the
disciplinary proceeding or in due course.  Clearly, to the extent sanctions were at
issue in the Utah Supreme Court, they concerned Rose’s fifth petition for
discretionary relief, not any direct appeal she might file from a final judgment in
the disciplinary proceeding.  We have no basis to conclude the Utah Supreme
Court would provide an inadequate forum for Rose’s jurisdictional arguments on
direct appeal. 

                                         -8-
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.”  Winslow

v. Hunter (In re Winslow), 17 F.3d 314, 315 (10th Cir.  1994). 

      The judgment of the district court is AFFIRMED.  Rose’s motion to

proceed on appeal without prepayment of fees and costs is DENIED, and Rose is

ordered to immediately pay the appellate filing fee in full. 


                                                     Entered for the Court



                                                     Carlos F. Lucero
                                                     Circuit Judge




                                          -9-
