United States District Court, D. Colorado
ORDER AFFIRMING AND ADOPTING THE RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND DENYING AS MOOT
PLAINTIFF’S FOURTH MOTION FOR PRELIMINARY
INJUNCTION
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the Recommendation by United
States Magistrate Judge Nina Y. Wang that Defendants Byron M.
Large and Jessica E. Yate’s Motion to Dismiss Under
Fed.R.Civ.P. 12(b)(6) (Doc. # 52) be converted into a Motion
for Summary Judgment (Doc. # 62) and granted against
Plaintiff Youras Ziankovich. (Doc. # 69.) Based on this
Court’s extensive examination of the pleadings,
supplemental filings, and applicable legal authority, the
Court affirms and adopts the Recommendation and dismisses
Plaintiff’s case with prejudice.
I.
BACKGROUND AND PROCEDURAL HISTORY
The
Magistrate Judge’s Recommendation (Doc. # 69) and this
Court’s Order Affirming and Adopting the October 5,
2017 Recommendation of United States Magistrate Judge (Doc. #
23) provided a thorough recitation of the factual and
procedural background of this dispute and is incorporated
herein by reference. See 28 U.S.C. §
636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this Order
will reiterate only what is necessary to address
Plaintiff’s objections.
The
following facts are undisputed. Plaintiff maintained legal
offices in New York and Colorado. (Doc. # 12.) He held a law
license from New York State and has never been admitted as an
attorney in Colorado. (Id.; Doc. # 70 at 4, ¶
3.) Plaintiff practiced immigration law in Colorado before
the U.S. District Court for the District of Colorado, the
Executive Office of Immigration Review, and the Department of
Homeland Security. (Doc. # 70 at 4, ¶ 2.)
Defendant
Jessica E. Yates[1] is Colorado’s Attorney Regulation
Counsel and was appointed by the Colorado Supreme Court to
regulate the practice of law in Colorado. (Doc. ## 18,
56–57.) Defendant Byron M. Large is an attorney for
Colorado’s Office of Attorney Regulation Counsel
(“OARC”). (Id.) As Attorney Regulation
Counsel, Defendants are responsible for maintaining and
supervising Colorado’s OARC. (Id.) OARC
conducts investigations and prosecutes disciplinary actions
against attorneys who have allegedly violated the Colorado
Rules of Professional Conduct. Colo. R. Civ. P.
251.3(c)(3)–(c)(4), 251.10. OARC’s regulatory
jurisdiction includes attorneys licensed to practice in
Colorado, as well as attorneys licensed by other states who
practice before federal courts and regulatory agencies in
Colorado. Colo. R. Civ. P. 8.5(a). An impartial hearing board
(“Hearing Board”), which includes the Colorado
Supreme Court’s presiding disciplinary judge
(“PDJ”), presides over OARC’s cases. Colo.
R. Civ. P. 251.16–18. The Hearing Board’s
disciplinary decisions may be appealed to the Colorado
Supreme Court. Colo. R. Civ. P. 251.27(a).
A.
STATE DISCIPLINARY ACTION
This
dispute arises out of OARC’s attorney discipline action
against Plaintiff, No. 17PDJJ037 (“State Disciplinary
Action”).[2] See (Doc. # 14, Doc. # 64-4 at
1– 13.) On June 1, 2017, Plaintiff filed with the PDJ a
motion to dismiss the State Disciplinary Action on the
grounds that OARC lacked jurisdiction to investigate and
sanction attorneys with law licenses from other states and
with practices limited to federal court matters. (Doc. #
14-3; Doc. # 48 at ¶ 12.) After the parties briefed that
issue, see (Doc. # 14-4), the PDJ denied
Plaintiff’s motion to dismiss on July 13, 2017 (Doc. #
14-5). Therein, the PDJ concluded that the Office of the
Presiding Disciplinary Judge of the Colorado Supreme Court
had jurisdiction over Plaintiff and could adjudicate the OARC
claims brought against him. (Id.) The Colorado
Supreme Court declined to hear Plaintiff’s
interlocutory appeal. (Doc. # 14-8.) The State Disciplinary
Action proceeded against Plaintiff. (Doc. # 14-9.)
On
March 5, 2018, Defendants moved for summary judgment on all
eight claims asserted against Plaintiff (Doc. # 52-1 at 1),
and the PDJ granted in part that motion for summary judgment,
entering judgment in Defendants’ favor on six claims
(id. at 13). The PDJ set the remaining two claims
for a two-day disciplinary hearing. (Id.)
On
March 28, 2018, Plaintiff filed his Hearing Brief with the
OARC before his hearing commenced. (Doc. # 52-5.) In his
brief, Plaintiff asserted the following defenses that are
pertinent to the instant Recommendation:
1) lack of subject matter jurisdiction;
4) violation of Plaintiff’s right for due process;
14) Discipline action in any form violates
[Plaintiff’s] right to procedural due process under the
Fourteenth Amendment of the United States Constitution and
the Constitution of the State of Colorado, violates the
Interstate Commerce Clause of the United States Constitution,
violates the [Plaintiff’s] rights under the First
Amendment to the United States Constitution and the
Constitution of the State of Colorado, violates the
[Plaintiff’s] rights under the Fifth Amendment to the
United States Constitution and the Constitution of the State
of Colorado, was commenced in violation of the 42 U.S.C.
§ 1983, is beyond of this Court and the State of
Colorado authority, and therefore fails to state a cause of
action upon which disciplinary action, suspension, or
disbarment may be granted[.]
(Id. at 5–6.)
On
April 10 and 11, 2018, Plaintiff and Defendants participated
in a disciplinary hearing (the “Hearing”) before
the Hearing Board, which consisted of the PDJ, an attorney,
and a lay member. (Doc. # 52-2 at 3.) At the beginning of the
Hearing, Defendants withdrew one of the two remaining claims,
and Plaintiff moved to dismiss the case for lack of
jurisdiction while alleging that he did not receive requisite
written notice of the hearing. (Id.) The Hearing
Board denied Plaintiff’s motion to dismiss after
Plaintiff confirmed he had participated in setting the
hearing and received the PDJ’s Scheduling Order.
(Id.) Throughout the Hearing, the Hearing Board
considered stipulated exhibits, Plaintiff’s proffered
exhibit, and the testimony provided by Plaintiff,
Plaintiff’s former clients, and expert witness Lisa
Green. (Id. at 3, 6–8.)
On May
31, 2018, the Hearing Board issued its Opinion and Decision
Imposing Sanctions under Colo. R. Civ. P. 251.19(b) (Doc. #
52-2 at 1) to which Plaintiff filed a Colo. R. Civ. P. 59
Post-Trial Motion (Doc. # 52-6). In Plaintiff’s
Post-Trial Motion, he raised previously asserted defenses,
including his steadfast objection to the OARC’s
jurisdiction over him. (Id.) The Hearing Board
denied Plaintiff’s Post-Trial Motion as to his
substantive challenges but granted Plaintiff’s request
to strike two sentences. (Doc. # 52-7.) On June 20, 2018, the
Hearing Board issued an Amended Opinion and Decision
(“Amended Opinion”). (Doc. # 52-2 at 1 n.1);
People v. Ziankovich, 433 P.3d 640 (Colo. O.P.D.J.
2018).
The
underlying substantive analysis of the Hearing Board’s
initial opinion was unchanged in its Amended Opinion. (Doc. #
52-2 at 1.) The Hearing Board determined that Plaintiff was
guilty of violating several Colorado Rules of Professional
Conduct and suspended him from practicing law in Colorado for
one year and one day, with three months to be served, and the
remainder stayed upon the successful completion of a two-year
probation period, subject to certain conditions.
(Id. at 21–23.) The Hearing Board rejected
Plaintiff’s defenses, including his challenge to
jurisdiction and argument that the disciplinary action
violated the Commerce Clause and his due process,
constitutional, and statutory rights. (Id. at
12–15.)
On July
9, 2018, Plaintiff appealed the Hearing Board’s
decision to the Colorado Supreme Court (Doc. # 52-4 at 16),
and, on October 28, 2018, Plaintiff filed his Opening Brief
(id. at 1). In his Opening Brief, Plaintiff raised
his previously asserted objection to the OARC’s
jurisdiction to discipline him and that such disciplinary
action constituted a violation of due process of law.
(Id. at 9.) On February 1, 2019, the Colorado
Supreme Court issued an Order and Mandate affirming the
Hearing Board’s Amended Opinion. (Doc. #
52-3.)[3]
B.
FEDERAL ACTION
After
Defendants initiated the State Disciplinary Action against
Plaintiff, Plaintiff commenced this federal action pro
se on August 24, 2017 (“Federal Action”).
(Doc. # 1.) Plaintiff sought declaratory judgment that
Defendants did not have jurisdiction to initiate the State
Disciplinary Action against him because he has never been
licensed to practice law by Colorado and does not practice
before Colorado state courts or agencies, rather, he
practices federal immigration law in the federal courts in
Colorado. (Id.); see also (Doc. # 14-1.)
On
August 31, 2017, Plaintiff filed his first Motion for TRO.
(Doc. # 5.) The Court referred the motion to Magistrate Judge
Wang on September 6, 2017. (Doc. # 9.) Magistrate Judge Wang
issued an Order to Show Cause, directing Plaintiff to explain
why his case should not be dismissed for lack of subject
matter jurisdiction. (Doc. # 11.) Plaintiff then filed his
first Amended Complaint on September 10, 2017, which
Magistrate Judge Wang understood to be his Response to the
Order to Show Cause. See (Doc. # 12.) The Amended
Complaint suggests that Plaintiff invokes the Court’s
federal question jurisdiction under 28 U.S.C. § 1331,
and that Plaintiff asserts claims against Defendants pursuant
to 42 U.S.C. § 1983 for violations of his First, Fifth,
and Fourteenth Amendment rights, as well as a claim for
violations of the Commerce Clause. (Id.) Plaintiff
seeks declaratory relief and attorney fees. (Id.)
Magistrate Judge Wang recommended that Plaintiff’s
first Motion for TRO be denied as moot in light of
Plaintiff’s Amended Complaint and discharged the Order
to Show Cause on September 12, 2017. (Doc. # 13.) This Court
affirmed and adopted that recommendation on October 5, 2017.
(Doc. # 20.)
Plaintiff
filed a second Motion for TRO, which is identical to his
first motion, on September 14, 2017. (Doc. # 14.) The Court
referred the motion to Magistrate Judge Wang. (Doc. # 15.)
While that second Motion for TRO was pending, Defendants
moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1)
and 12(b)(6) on September 25, 2017. (Doc. # 18.) Defendants
argued that the Court should dismiss the case under Rule
12(b)(1) for lack of subject matter jurisdiction because the
requirements of the Younger abstention doctrine were
satisfied. (Id.) Plaintiff did not timely respond to
Defendant’s motion to dismiss. Defendants responded to
Plaintiff’s second Motion for TRO on October 5, 2017.
(Doc. # 19.) On October 5, 2017, Magistrate Judge Wang
recommended that Plaintiff’s second Motion for TRO
(Doc. # 14) be denied without prejudice and that
Plaintiff’s Amended Complaint (Doc. # 12) be dismissed
without prejudice pursuant to abstention doctrine set forth
in Younger v. Harris, 401 U.S. 37 (1971). (Doc. #
21.) On October 21, 2017, the Court adopted and affirmed that
recommendation and dismissed Plaintiff’s action without
prejudice. (Doc. # 23.)
On
January 8, 2018, Plaintiff appealed the Court’s
dismissal to the United States Court of Appeals for the Tenth
Circuit. (Doc. # 30.) On December 26, 2018, the Tenth Circuit
reversed and remanded the Court’s dismissal of
Plaintiff’s Amended Complaint given that the State
Disciplinary Action had concluded. (Doc. # 36.) The Tenth
Circuit issued its mandate on January 23, 2019. (Doc. # 49.)
On that same day, Plaintiff filed his fourth[4] Motion for TRO
(Doc. # 48), which the Magistrate Judge recommended be
denied. (Doc. # 59.)
On
February 6, 2019, Defendants filed their Motion to Dismiss
Under Fed.R.Civ.P. 12(b)(6). (Doc. # 52.) In their Motion to
Dismiss, Defendants asserted three arguments. First,
Defendants argued that, as a matter of law, the OARC and PDJ
had the authority to discipline Plaintiff for his provision
of legal services to Colorado residents. (Id. at
5–9.) Next, Defendants averred that Plaintiff failed to
state plausible claims for all five[5] counts. (Id. at
9–13.) Finally, Defendants contended that doctrines of
issue and claim preclusion barred Plaintiff’s Federal
Action. (Id. at 13–15.) On February 9, 2019,
Plaintiff responded to Defendants’ Motion to Dismiss.
(Doc. # 54.) Defendants replied to the Response on February
22, 2019. (Doc. # 58.)
The
Court referred Defendants’ Motion to Dismiss to
Magistrate Judge Wang on February 7, 2019. (Doc. # 53.)
Because the parties presented matters outside the pleadings
(Doc. # 69 at 1), on April 24, 2019, pursuant to Rule 12(d),
Magistrate Judge Wang issued a minute order providing notice
that she intended to convert Defendants’ Motion to
Dismiss into a Motion for Summary Judgment under Rule 56
(Doc. # 62). As a result, Plaintiff supplemented the record
in opposition to the Motion for Summary Judgment on May 7,
2019 (Doc. # 63) and May 8, 2019 (Doc. # 65), and Defendants
supplemented the record in support of their Motion on May 8,
2019 (Doc. # 64).[6]
C.
THE MAGISTRATE JUDGE’S RECOMMENDATION
Magistrate
Judge Wang issued her Recommendation that the Court should
dismiss Plaintiff’s Complaint with prejudice on May 31,
2019. (Doc. # 69.) Based on the undisputed material facts,
the Magistrate Judge determined that the PDJ and OARC had
jurisdiction and the authority to discipline Plaintiff for
his provision of legal services to Colorado residents.
(Id. at 11–16.) Next, Magistrate Judge Wang
concluded that Plaintiff failed to proffer competent evidence
that would establish any of his claims under applicable law.
(Id. at 16–32.) Finally, as discussed in
greater detail below, the Magistrate Judge decided that issue
preclusion applied and barred Plaintiff’s Federal
Action. (Id. at 33–36.)
On June
3, 2019, Plaintiff filed his Objection to the Recommendation.
(Doc. # 70.) Defendants responded to Plaintiff’s
Objection on July 1, 2019. (Doc. # 75.) For the following
reasons, the Court adopts the Recommendation as to the
Magistrate Judge’s conclusion regarding issue
preclusion and holds that the Hearing Board’s Amended
Opinion, as affirmed by the Colorado Supreme Court, bars
Plaintiff’s Federal Action.
II.
LEGAL STANDARDS
A.
REVIEW OF A RECOMMENDATION
When a
magistrate judge issues a recommendation on a dispositive
matter, Rule 72(b)(3) requires that the district judge
“determine de novo any part of the magistrate
judge’s [recommended] disposition that has been
properly objected to.” An objection is properly made if
it is both timely and specific. United States v. One
Parcel of Real Property Known As 2121 East 30th Street,
73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its
review, “[t]he district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3).
However,
where a party has not properly objected, such failure
“will bar de novo review by the district judge
of the magistrate judge’s proposed findings and
recommendations and will result in a waiver of the right to
appeal from a judgment of the district court based on the
proposed findings and recommendations of the magistrate
judge.” Raccoon Recovery, LLC v. Navoi Mining &
Metallurgical Kombinat, 244 F.Supp.2d 1130, 1144 (D.
Colo. 2002). An objection that is “sufficiently
specific to focus the district court’s attention on the
factual and legal issues that are truly in dispute will
advance the policies behind the Magistrate’s Act that
led [the Tenth Circuit] to adopt a waiver rule in the first
instance.” One Parcel, 73 F.3d at 1060.
“In the absence of a timely and specific objection,
‘the district court may review a magistrate . . .
[judge’s] report under any standard it deems
appropriate.’” Concilio v. Cigna Health and
Life Ins. Co., No. 16-cv-1863-WJM-MJW, 2018 WL 3545306,
*6 n.1 (D. Colo. July 24, 2018) (quoting Summers v.
Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing
Thomas v. Arn, 474 U.S. 140, 150 (1985)).
B.
PRO SE PLAINTIFF
Plaintiff
is proceeding pro se. The Court, therefore, reviews
his pleading “liberally and hold[s] [it] to a less
stringent standard than those drafted by attorneys.”
Trackwell v. United States, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted). However, a pro se
litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a
claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court
may not assume that a plaintiff can prove facts that have not
been alleged, or that a defendant has violated laws in ways
that a plaintiff has not alleged. Associated Gen.
Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983); Drake v. City
of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a
court may not “construct arguments or theories for the
plaintiff in the absence of any discussion of those
issues”). Nor does pro se status entitle a litigant to
an application of different rules. See Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002).
C.
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