Jiricko v. Frankenburg Jensen Law Firm ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DR. MILOS JIRICKO,
Plaintiff - Appellant,
v. No. 18-4066
(D.C. No. 2:16-CV-00132-DB)
FRANKENBURG JENSEN LAW FIRM; (D. Utah)
CAROLYN STEVENS JENSEN, lawyer;
JENNIFER BRENNAN, lawyer; KEITH
KELLY, State Judge in his official and
personal capacity; HEATHER
BRERETON, Judge in her official and
personal capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and O’BRIEN, Circuit Judges.
_________________________________
Dr. Milos Jiricko, appearing pro se, appeals from the dismissal of his
complaint asserting federal and state-law claims against opposing counsel and two
judges who were involved in his unsuccessful personal injury suit brought in Utah
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
state court. He also appeals from the denial of his motion to reopen the judgment
under Fed. R. Civ. P. 59 and 60(b). We affirm.1
BACKGROUND
In October 2013, Jiricko, appearing pro se, filed suit in Utah state court against an
ophthalmologist and the doctor’s employer for personal injuries he claimed to have
suffered as a result of a surgical procedure (“State Court Suit”). Carolyn Stevens Jensen
and Jennifer M. Brennan and their law firm, Frankenburg Jensen, (collectively “the
Frankenburg Defendants”) represented the medical defendants in the suit. Judge Keith
Kelly and later Judge Heather Brereton (collectively “the Judicial Defendants”) presided
over the case. Accepting the Frankenburg Defendants’ arguments on behalf of their
clients, Judge Kelly decided the Utah Health Care Malpractice Act, Utah Code Ann.
§§ 78B-3-401 to 78B-3-426 (“the Act”), and its requirements applied to Jiricko’s claims.
Judge Brereton subsequently dismissed Jiricko’s suit as a result of his failure to designate
a qualified expert witness as required by the Act. The Utah Court of Appeals affirmed.
While his State Court Suit appeal was pending, Jiricko filed this action against the
Frankenburg and Judicial Defendants, alleging they had conspired to deprive him of his
constitutional rights and otherwise harm him by applying the Act to his claims. He
further alleged the Act was unconstitutional on its face and as applied in the State Court
Suit, and asserted claims against the Defendants under 42 U.S.C. § 1983 and state law.
1
Our jurisdiction derives from 28 U.S.C. § 1291.
2
He sought damages, a judgment declaring the Act to be unconstitutional, and an
injunction barring its application to his claims in the State Court Suit.
Both sets of defendants filed motions to dismiss the claims. The district judge
referred the motions to a magistrate judge, who recommended: 1) the claims against the
Judicial Defendants be dismissed on judicial immunity and other grounds, and 2) the
§ 1983 claims against the Frankenburg Defendants be dismissed because they were not
state actors and the state-law claims against them (except the claim of fraud on the state
court) be dismissed since those claims were barred by Utah’s judicial-proceedings
privilege. The district judge adopted the magistrate’s recommendations over Jiricko’s
objections.
In response, Jiricko filed a petition for a writ of mandamus in this court, seeking to
disqualify the district and magistrate judges for failing to decide what he deemed to be
the central issue in this action–his challenges to the constitutionality of the Act. In his
mandamus petition, he also asked this court to decide the constitutional issues.
Exercising jurisdiction under 28 U.S.C. § 1651(a), we denied his petition. See In re
Jiricko, No. 17-4094, slip op. at 4 (10th Cir. June 26, 2017) (unpublished order).
Meanwhile, the Frankenburg Defendants moved for summary judgment on the
only remaining claim, fraud on the state court. The magistrate recommended a summary
judgment dismissing the state law claim because the district court lacked jurisdiction to
decide it and, in any event, should decline to exercise supplemental jurisdiction. Jiricko
did not file objections within fourteen days of this recommendation as required or seek an
extension to do so, but he did file objections approximately two weeks after the deadline.
3
The district judge nevertheless considered the untimely objections, adopted the
magistrate’s recommendation, dismissed the fraud on the state court claim for lack of
jurisdiction, and entered judgment dismissing this action.2 He also denied Jiricko’s
motion to reopen the judgment under Fed. R. Civ. P. 59 and 60(b). This appeal followed.
DISCUSSION
A. Utah Health Care Malpractice Act
Though Jiricko raises a number of issues on appeal, his primary argument relates
to the dismissal of his case without deciding whether the Utah Health Care Malpractice
Act is unconstitutional on its face or as applied by the Judicial Defendants in the State
Court. Jiricko is mistaken in assuming a decision on these issues is necessary simply
because he asserted § 1983 and state-law claims. As we informed him in denying his
petition for mandamus, the failure of the judges to rule on the constitutionality of the Act
at that point in the case was “the natural consequence of rulings based on other
dispositive deficiencies in his claims.” In re Jiricko, No. 17-4094, slip op. at 3. The
immunity, privilege and other grounds on which the district court had dismissed Jiricko’s
claims against the Judicial Defendants and most of his claims against the Frankenburg
Defendants made it unnecessary for the district court to resolve his constitutional
challenges. We suggested an appeal from the merits of these dismissals if he objected to
2
As a result of Jiricko’s failure to timely object to the magistrate’s
recommendation regarding this claim, we ordered Jiricko to show cause why he had
not waived his right to appellate review of the district court’s adoption of this
recommendation under our firm waiver rule regarding untimely objections. We
discuss this rule and Jiricko’s response to our order later in this decision.
4
them. Id. at 2-3. He has done so to some extent in this appeal, as we discuss in the
following sections, but there is no merit to his renewed contention that the district court
erred in failing to address the Act’s constitutionality.
B. Dismissal of Claims Against the Judicial Defendants
Jiricko’s claims against the Judicial Defendants were dismissed for failure to state
a claim under Fed. R. Civ. P. 12(b)(6), a decision we review de novo. See Khalik v.
United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). To state a claim, a complaint
must contain sufficient facts “to state a claim to relief that is plausible on its face,”
taking all well-pleaded facts, but not conclusory allegations, as true and construing
them in the light most favorable to the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted); see Acosta v. Jani-King of Okla., Inc.,
905 F.3d 1156, 1158 (10th Cir. 2018). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Because Jiricko
is acting pro se, we construe his filings liberally, but do not act as his advocate. Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
1. Claims for damages
We agree with the district judge, Jiricko failed to state a plausible claim for
damages against the Judicial Defendants because the claims are barred by judicial
immunity. A judge is immune from damage suits unless (1) the act in question “is not
taken in the judge’s judicial capacity,” or (2) “the act, though judicial in nature, is taken
in the complete absence of all jurisdiction.” Stein v. Disciplinary Bd. of Supreme Court
5
of N.M., 520 F.3d 1183, 1195 (10th Cir. 2008) (internal alterations and quotation marks
omitted). Jiricko contends his claims fall within these exceptions because the state judges
improperly ruled his State Court Suit was subject to the Act. But disagreement with a
ruling does not touch upon the court’s jurisdiction or judicial capacity. His claims failed
to state a claim because they are barred by judicial immunity.
2. Claims for declaratory and injunctive relief
The district judge dismissed Jiricko’s claims for declaratory and injunctive relief
against the Judicial Defendants on alternative grounds: 1) they failed to state a claim
because they were barred by the Younger abstention doctrine,3 and 2) the Judicial
Defendants, as adjudicators, were not proper parties to defend the constitutionality of the
Utah statute. Jiricko disputes the judge’s reliance on the Younger doctrine but does not
challenge his holding that the Judicial Defendants were not proper parties. “When a
district court dismisses a claim on two or more independent grounds, the appellant must
challenge each of those grounds.” Lebahn v. Nat’l Farmers Union Unif. Pension Plan,
828 F.3d 1180, 1188 (10th Cir. 2016). Since Jiricko does not now challenge the “proper
parties” ruling, we trust it was proper. We affirm the dismissal of the claims for
declaratory and injunctive relief. See id.
3
This doctrine arises from Younger v. Harris, 401 U.S. 37 (1971).
6
C. Claims against Frankenburg Defendants
1. Section 1983 claims
To state a claim under § 1983, Jiricko was required to plead facts that, taken as
true, establish (1) he was deprived of a right secured by the Constitution or federal
law, and (2) the deprivation was caused by a person or persons acting under color of
state law. See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125,
1143 (10th Cir. 2014). He failed to state a § 1983 claim against the Frankenburg
Defendants, the district judge concluded, because he did not sufficiently allege they acted
under color of state law. Jiricko disputes this conclusion because he alleges they
conspired with state actors (the Judicial Defendants) in state court to deprive him of his
constitutional rights. But “[w]hen a plaintiff in a § 1983 action attempts to assert the
necessary ‘state action’ by implicating state officials or judges in a conspiracy with
private defendants, mere conclusory allegations with no supporting factual averments are
insufficient; the pleadings must specifically present facts tending to show agreement and
concerted action.” Scott v. Hern, 216 F.3d 897, 907 (10th Cir. 2000) (internal quotation
marks omitted). The mere fact that a judge agreed with one party’s legal arguments is
not collusion. Since Jiricko failed to offer the required specific factual allegations, he
failed to state a § 1983 claim against the Frankenburg Defendants.
2. State-law claims
The district court dismissed Jiricko’s state-law claims against the Frankenburg
Defendants (abuse of process, conspiracy and intentional infliction of emotional distress)
7
because they were barred by Utah’s judicial-proceeding privilege. Under Utah law, this
privilege “presumptively attaches to conduct and communications made by attorneys on
behalf of their clients in the course of judicial proceedings.” Moss v. Parr Waddoups
Brown Gee & Loveless, 285 P.3d 1157, 1166 (Utah 2012). Jiricko did not challenge the
privilege ruling, thereby forfeiting appellate review of it.4 See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening brief
generally forfeits appellate consideration of that issue.”)
Jiricko also waived appellate review of the district court’s dismissal of his final
claim against these Defendants (fraud on the state court); this time because he failed to
timely object to the magistrate judge’s February 6, 2018, recommendation to dismiss this
state-law claim for lack of jurisdiction. “This court has adopted a firm waiver rule under
which a party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.”
Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). “This rule does not
apply, however, when (1) a pro se litigant has not been informed of the time period for
objecting and the consequences of failing to object, or when (2) the interests of justice
require review.” Id. (internal quotation marks omitted).
4
Jiricko did address this privilege in his reply brief after the Frankenburg
Defendants raised it in their response brief. But we do not ordinarily consider
arguments raised for the first time in a reply brief. See, e.g., White v. Chafin,
862 F.3d 1065, 1067 (10th Cir. 2017) (holding party “waived [ ]his contention by
waiting to present it for the first time in his reply brief”). Further, Jiricko’s argument
that the Frankenburg Defendants were not acting within the scope of the
judicial-proceeding privilege in the State Court Suit is conclusory and not persuasive
in any event.
8
In response to our order to show cause regarding his apparent waiver, Jiricko first
claims the firm waiver rule does not apply because his objections to the magistrate
judge’s recommendation regarding his fraud on the court claim were timely under an
extension he had requested and received from the court. The record shows otherwise;
that extension granted Jiricko additional time to object to two other, earlier filed,
recommendations made by the magistrate. His objections to the magistrate’s
recommendation regarding his fraud on the court claim were untimely.
He also contends the firm waiver rule is inapplicable under the exceptions to the
rule. But our review of the magistrate judge’s written recommendation indicates it
accurately informed Jiricko he was required to file any objections to the recommendation
within fourteen days and that the failure do so “may constitute waiver of objections upon
subsequent review.” R. Vol. II at 395. His “interests of justice” argument is also
unpersuasive as it merely returns to the issue of the Act’s constitutionality, and makes no
argument about the judge’s unexceptional decision not to exercise supplemental
jurisdiction over his fraud on the state court claim once his federal and other state claims
had been dismissed. Jiricko’s other assorted arguments against application of the firm
waiver rule are also meritless. He waived appellate review of the district court’s
dismissal of his fraud on the court claim.
D. Postjudgment Motion
Jiricko also appeals from the denial of his combined Rule 59 and Rule 60(b)
motion to reopen the court’s judgment. We review this decision for abuse of discretion.
9
See Butler v. Kempthorne, 532 F.3d 1108, 1110 (10th Cir. 2009). The denial was not
even debatably beyond permitted discretion.5
CONCLUSION
AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
5
Jiricko’s contention that the district court failed to rule on a portion of this
motion is not supported by the record. Nor do we see anything in the record supporting
his suggestion that the district and magistrate judges were biased against him and
should have been disqualified.
10