Mann v. Boatright

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH February 15, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BEVERLY M ANN, individually,
Plaintiff-Appellant,
v.
BRIAN D. BO ATR IGH T,
individually and in his capacity as a No. 05-1559
Jefferson County, Colorado First
Judicial D istrict Judge; JA M ES D.
ZIM M ERM AN, individually and in
his capacity as a Jefferson County,
Colorado First Judicial District
Judge; FREDERIC B. RODGERS, a
Gilpin County, Colorado, County
Judge and (by special designation of
Colorado First Judicial District Chief
Judge R. Brooke Jackson) Jefferson
County, Colorado, Probate Judge, in
his capacity as Jefferson County,
Colorado First Judicial District
Probate Judge; R . B RO O K E
JACKSO N, in his capacity as Chief
Judge of the First Judicial District,
State of C olorado; JEFFER SO N
COUNTY, COLORADO, a municipal
or county corporation; TH E FIRST
JU D IC IA L D ISTR IC T, STA TE OF
C OLO RA D O ; TH E STA TE O F
COLORADO; M ARY M UNG ER,
individually and in her capacity as a
City of Lakewood, Colorado Police
O fficer; JA N ET Y O U N G,
individually and in her capacity as a
City of Lakewood, Colorado assistant
city attorney; TH E C ITY O F
LAKEW OOD, Colorado, a municipal
corporation; TINA L. OLSEN, in her
capacity as a Jefferson County,
C olorado, C ounty Judge; TH O MAS
E. VANCE, in his capacity as a
Jefferson County, Colorado, County
Judge; W ILLIA M K ILPA TR IC K,
individually and in his capacity
as City of Golden, Colorado Police
C hief; M A TT JU RISC HK ,
individually and in his capacity as a
City of Golden, Colorado Police
O fficer; TH E C ITY O F G O LD EN,
Colorado, a municipal corporation;
M ARY LOGAN, individually, as
shareholder and as administrator of
Grand Oaks Care Center in
Lakew ood, C olorado; STEV E
KUTCHER, individually and as head
nurse of Grand Oaks Care Center in
Lakewood, Colorado; DO NA LD
LOGAN, individually and as assistant
manager of Grand Oaks Care Center
in Lakewood, Colorado;
GERI-CARE, INC. d/b/a Grand Oaks
Care Center, in Lakewood, Colorado;
DAVID R. GLOSS, individually and
as an agent of Jefferson County,
Colorado, and as an agent of The
State of C olorado; STEPH EN IE D.
LORIM ER; “TH E VISITOR”,
appointed by Judge James D .
Zimmerman, pursuant to Colorado
Revised Statutes 15-14-305, in his or
her capacity as court-appointed
“V isitor”; JO H N S. G LEA SO N ,
individually and in his capacity as
Colorado Supreme Court Attorney
Regulation Counsel; LO UISE
CULBERSON-SM ITH, individually
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and in her capacity as a Colorado
Supreme Court Assistant
A ttorney Regulation C ounsel; THE
COLORADO SUPREME COURT
OFFICE OF ATTOR NEY
REGULA TION CO UN SEL; CA RLA
M ARTIN, individually and in her
former capacity as general manager
of Golden Pond Senior Living, LLC;
G O LD EN PO N D SEN IO R LIV ING,
LLC, a Colorado corporation;
HENRY M ELTON, in his capacity as
Executive Director of Golden Pond
Senior Living, LLC; ENRICO
GALIM BERTI, individually and in
his capacity as a deputy Jefferson
County Sheriff; DONALD TAIT, in
his capacity as a supervising deputy
Jefferson County Sheriff; TED
M INK, in his capacity as Jefferson
C ounty Sheriff; G A Y LE K IN G ;
TR OY K ING ; JO A N SC HEU M ANN;
ERIK SCH EUM AN N; EILEEN
BIDW ELLL. and L. JEFFREY
BIDW ELL,
Defendants-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 05-cv-2413-REB-M JW )
Submitted on the briefs: *
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
(continued...)
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Beverly M ann, pro se.
Elizabeth C. M oran, Alyson Ray Rutberg, Donald E. Lake, III, Pryor Johnson
Carney Karr Nixon, P.C., Greenwood Village, Colorado for Golden Pond Senior
Living, LLC, Henry M elton, and Carla M artin, Defendants-Appellees.
J. Andrew Nathan, Andrew J. Fisher, N athan, Bremer, D umm & M yers, P.C.,
Denver, Colorado for W illiam K ilpatrick, M att Jurischk and The City of Golden,
Defendants-Appellees.
John W . Suthers, Friedrick C. Haines, Office of the Colorado Attorney General,
Denver, Colorado for Brian D. Boatright, James D. Zimmerman, Frederic B.
Rodgers, R. Brooke Jackson, The First Judicial District of the State of Colorado,
The State of C olorado, Tina L. Olsen, Thomas E. Vance, John S. Gleason, Louise
Culberson-Smith, and The Colorado Supreme Court Office of Attorney
Regulation Counsel, Defendants-Appellees.
Before BARRETT, PO RFILIO, and BALDOCK, Circuit Judges.
PO RFILIO, Circuit Judge.
Plaintiff-Appellant Beverly M ann appeals from the district court’s sua
sponte dismissal of her complaint for lack of jurisdiction under the
Rooker-Feldman doctrine 1 . She also challenges its order denying her request to
file the complaint under seal and seeks reconsideration of orders issued by this
*
(...continued)
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.
1
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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court while her appeal was pending. Exercising our jurisdiction under 28 U.S.C.
§ 1291, we affirm the judgment of the district court. W e also decline to vacate
any previous rulings issued by motions panels of this court during the pendency
of this appeal.
I.
A. The Probate Court Orders
At the heart of this case are two Colorado probate court orders that
determined that Beverly’s 2 elderly father, Joseph M ann, is incapacitated and
appointed defendant Gayle King as his guardian and conservator of his estate.
The unfortunate circumstances surrounding the court’s issuance of these orders
are described in detail in Beverly’s complaint. To summarize, Joseph was
diagnosed with Alzheimer’s disease in mid-2004. In October 2004, he left his
hometow n of Chicago, where he lived with Beverly, for what was to be a short
trip to visit his granddaughter, King, in Golden, Colorado. W hile in Colorado,
however, he broke his elbow and had to be hospitalized, at which point his mental
health deteriorated rapidly. On November 4, 2004, after he was released from the
hospital, Joseph executed a health-care power-of-attorney prepared by defendant
attorney Stephenie Lorimer. This document, which is attached to the complaint,
purports to revoke all prior powers-of-attorney, designates K ing as Joseph’s
2
To avoid confusion, we refer to M s. M ann and her father, Joseph M ann, by
their first names.
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attorney-in-fact, and also states that King is his preferred guardian in the event
that he is deemed incapacitated.
Empowered by this power-of-attorney, King placed Joseph in defendant
Golden Pond Senior Living Center and obtained a temporary restraining order that
prohibited Beverly from contacting him. Beverly, having traveled to Colorado,
tried several times to visit Joseph at Golden Pond and even enlisted the help of
the local police. Each time, however, employees of G olden Pond, on King’s
orders and in compliance with the restraining order, refused to let Beverly see her
father. As a result, Beverly claims that she has not seen or spoken to her father
since November 28, 2004, when she visited him at the Grand Oaks Nursing
Home, where he lived briefly before being moved to Golden Pond.
On December 4, 2004, King filed a petition under the Colorado probate
code that requested a determination that Joseph was incapacitated and sought
appointment as his guardian. In a separate petition, she sought appointment as the
conservator of Joseph’s estate. W ith the court’s permission, Beverly intervened
in the action as an interested person and filed objections to the petitions on
multiple grounds. She argued primarily that King had manipulated Joseph into
signing the November 4, 2004, power-of-attorney at a time when he lacked
capacity to make such decisions. She argued that the pow er-of-attorney was,
therefore, null and void and could not operate to void any prior
powers-of-attorney, including a 1998 power-of-attorney that Joseph had executed,
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designating Beverly as his attorney-in-fact. Defendant state court judge Brian
Boatright held a hearing on the petitions on April 19, 2005. He excused Joseph
from attending the hearing based on a motion filed by Joseph’s court-appointed
attorney, defendant David Gloss. Beverly, however, attended the hearing,
testified, and questioned witnesses.
On M ay 9, 2005, and M ay 11, 2005, Judge Boatright issued orders granting
the petitions for guardianship and conservatorship, respectively. In the
guardianship order, which is attached to the complaint, the court found by clear
and convincing evidence that Joseph was an incapacitated person as a result of
severe memory loss caused by Alzheimer’s disease. W ith respect to the
appointment of King, the court stated that it “ha[d] considered the wishes of the
respondent [Joseph] concerning the selection of the guardian as filed in the
visitor’s report and reiterated by respondent’s Court appointed attorney.” R. doc.
1, attach. 5 at 1.
The guardianship order grants K ing broad control over Beverly’s access to
Joseph. It prohibits Beverly from speaking to Joseph in person or by telephone
without King’s consent and provides that Beverly may send letters and videotapes
to Joseph, subject to pre-screening by King. It also states that any
correspondence that Beverly sends “shall in no manner be disparaging towards the
rest of the family, the W ard’s residence in Colorado or the court proceedings
granting Guardianship and Conservatorship to M rs. King.” Id., attach. 5 at 2.
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Although Beverly filed numerous motions in the probate court challenging the
guardianship and conservatorship orders, she did not appeal the orders to the
Colorado Court of A ppeals.
B. The District Court Proceedings
On November 29, 2005, Beverly filed a complaint in U.S. District Court on
behalf of herself and Joseph against 37 defendants. Among them is every state
judge who had any involvement in the probate court proceedings; the State of
Colorado and its First Judicial District; Jefferson County and its sheriff’s
department; the City of Lakewood, its City Attorney, and some of its police
officers; the City of Golden and some of its police officers; both of the
assisted-living centers that have housed Joseph; Joseph’s court-appointed attorney
and the statutorily-designated “visitor”; the office of Colorado’s Attorney
Regulation Counsel and some of its employees; King, her family, and her
attorney; and Beverly’s sisters and their husbands. The thrust of the law suit is to
enjoin various orders issued by the probate court, most importantly those
appointing King as guardian and conservator. The complaint also seeks “an
emergency writ of habeas corpus or other emergency writ,” R. doc. 1 at 11,
requiring Joseph’s production in court so that he may be told “that he has been
stripped of most of his legal rights and has been made the unlimited legal ward of
King,” id. On December 14, 2005, Beverly filed a motion for a temporary
restraining order also seeking enjoinment of the guardianship and conservatorship
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orders and requesting that Joseph be apprised of his legal rights. The district
court dismissed the complaint on its own motion on December 19, 2005, holding
that the Rooker-Feldman doctrine barred it from reviewing orders issued in the
probate court proceedings. It also held that Rooker-Feldman barred Beverly’s
claims against the individual defendants because their actions were based on the
probate court’s orders. The court concluded that in the absence of subject-matter
jurisdiction, it could not address Beverly’s request for a temporary restraining
order and dismissed the case.
Paralleling all of this was Beverly’s attempt to have her federal complaint
sealed, or alternatively, the case file withheld from the court’s web-based filing
system. The district court denied her requests, holding that Beverly failed to
demonstrate any basis for sealing documents filed in the case. On appeal,
Beverly argues that the district court erred in applying the Rooker-Feldman
doctrine to her claims and abused its discretion in refusing to seal her complaint.
II.
A. Dismissal of the Complaint
W e review the dismissal of a complaint for lack of subject-matter
jurisdiction de novo. Guttman v. Khalsa, 446 F.3d 1027, 1031 (10th Cir. 2006).
W e may affirm the dismissal on “any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not relied upon by the
district court.” Lippoldt v. Cole, 468 F.3d 1204, 1219 (10th Cir. 2006) (quotation
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omitted). Having carefully reviewed the record, we conclude that the district
court lacked jurisdiction over the lion’s share of Beverly’s claims and properly
dismissed them under the Rooker-Feldman doctrine. Beverly’s complaint does
allude to some claims distinct from her challenge to the state court’s guardianship
and conservatorship orders, which would not be barred by Rooker-Feldman. But
as explained below, her attempt to state any such claims failed miserably, and
thus we affirm the dismissal of the balance of her complaint for its utter disregard
of the pleading requirements mandated by Federal Rule of Civil Procedure 8.
“The Rooker-Feldman doctrine prevents the lower federal courts from
exercising jurisdiction over cases brought by ‘state-court losers’ challenging
‘state-court judgments rendered before the district court proceedings
comm enced.’” Lance v. Dennis, 126 S.Ct. 1198, 1199 (2006) (quoting Exxon
M obil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). To Beverly
this means that having lost in probate court, she cannot file a federal complaint
seeking review and reversal of the unfavorable judgment. Even if the probate
court’s decision was w rong, that does not make its judgment void, but merely
leaves it “open to reversal or modification in an appropriate and timely appellate
proceeding.” Exxon-M obil, 544 U.S. at 284.
The Court clarified in Exxon-M obil that the Rooker-Feldman doctrine is
confined “to cases brought after the state proceedings have ended.” Guttman,
446 F.3d at 1031 (quotation omitted). Thus, for the doctrine to apply here, the
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state probate proceedings must have ended before Beverly filed her federal
complaint. Beverly argues that the probate proceedings have not ended and will
not end until either her father dies or the guardianship/conservatorship is
terminated.
Fortunately, the Colorado Supreme Court recently addressed the question of
what constitutes a final judgment of the probate court. Scott v. Scott, 136 P.3d
892, 894 (Colo. 2006). Although the case involved a will probate matter, we see
no reason why the court’s instructions should not apply equally to guardianship
and protective proceedings. In Scott, the court held that the rules for determining
whether a probate court order is final are the same rules that govern other kinds of
civil cases. “[A]n order of the probate court is final if it ends the particular action
in which it is entered and leaves nothing further for the court pronouncing it to do
in order to completely determine the rights of the parties as to that proceeding.”
Id. at 896. It further explained that the scope of a proceeding in a probate matter
is governed by the petition that initiated it. Id. at 896-97. “Therefore, when the
probate court has fully resolved the claims a proceeding presents, the probate
court has issued a final judgment.” Id. at 896, n.7.
Under Scott, the scope of the probate proceeding at issue in this case was
framed by the guardianship and conservatorship petitions. Therefore, once the
probate court issued orders fully resolving the claims raised by the petitions,
those orders constituted final judgments. See id. On M ay 9, 2005, and M ay 11,
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2005, the probate court issued orders granting King’s petitions for guardianship
and conservatorship, respectively. Over Beverly’s objections, the court
determined that Joseph was incapacitated and appointed King as his guardian and
conservator of his estate. The order appointing a conservator did refer to on-
going administrative filings, but nevertheless, the claims raised in K ing’s
petitions w ere definitively decided and “there was nothing further for the probate
court to do in order to completely determine the rights of the parties.” Id. at 898.
Thus, we conclude that the M ay 9, 2005, and M ay 11, 2005, probate court orders
constituted final and appealable judgments. Since Beverly did not file a timely
appeal of those judgments, 3 the district court properly considered the probate
proceedings final for purposes of Rooker-Feldman.
W e must now determine whether Beverly’s federal complaint
impermissibly seeks review and reversal of the probate court judgments. See
Bolden v. City of Topeka, Kansas, 441 F.3d 1129, 1143 (10th Cir. 2006)
(explaining that Rooker-Feldman precludes cases “inviting district court review
and rejection of [state-court] judgments.”). On page 98 of her complaint, Beverly
specifically requests a declaratory judgment nullifying various orders of the
probate court, including the orders appointing King guardian and conservator.
3
Under Colorado Appellate Rule 4(a), a notice of appeal must be filed
within 45 days of the date the of the entry of the judgment, decree, or order from
which the party appeals.
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She also seeks a declaratory judgment that Joseph was not mentally cognizant
when he signed the November 4, 2004, power-of-attorney designating King as his
attorney-in-fact. Beverly alleges that the governing document should have been
the 1998 power-of-attorney, in w hich Joseph designated her as his
attorney-in-fact, and the complaint requests a declaratory judgment to that effect.
In addition, it seeks a “permanent enjoinment of [the probate court’s] orders as
violative of the First and Fourteenth A mendments.” R. doc. 1 at 11. These are
precisely the types of claims encompassed by the Rooker-Feldman doctrine, and
the district court properly dismissed them. See Bolden, 441 F.3d at 1143(“Appellate review – the type of judicial action barred by Rooker-Feldman –
consists of a review of the proceedings already conducted by the ‘lower’ tribunal
to determine whether it reached its result in accordance with law.”).
In addition to injunctive relief, Beverly seeks monetary damages against a
variety of government actors and private individuals for the alleged violations of
her constitutional rights occasioned by their complicity with the probate court’s
orders. These claims too are barred by Rooker-Feldman. “[A] district court
[can]not entertain constitutional claims attacking a state-court judgment, even if
the state court [did] not pass[] directly on those claims, when the constitutional
attack [is] ‘inextricably intertwined’ with the state court’s judgment.”
Exxon-M obil, 544 U.S. at 286, n.1. (quoting District of Columbia v. Feldman,
460 U.S. 462, 482, n.16 (1983)). Nearly all of Beverly’s claims against the
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individual defendants assert injuries based on the probate court judgments and,
for her to prevail, would require the district court to review and reject those
judgments. As such, her claims are inextricably intertwined with the probate
court judgments and are therefore barred by the Rooker-Feldman doctrine.
W e say “nearly” all of her claims are barred because some of the
allegations in the complaint concern events that would seem to raise independent
claims. Scattered throughout the complaint, for example, are vague allegations
that arguably could give rise to state-law claims for defamation and conversion.
Such claims, if adequately stated, would not be barred by the Rooker-Feldman
doctrine. See Bolden, 441 F.3d at 1143 (explaining that federal court retains
jurisdiction over independent claims, even those that deny legal conclusion
reached by state court). But if Beverly does have claims beyond the doctrine’s
reach, we are at a loss to discern precisely what they are. Nowhere in her
99-page, single-spaced pleading could we find “a short and plain statement of the
claim showing that [she] is entitled to relief.” Fed. R. Civ. P. 8(a). This alone
would have been sufficient reason to dismiss the complaint. See United States ex
rel. Garst v. Lockheed-M artin Corp., 328 F.3d 374, 378-79 (7th Cir. 2003)
(affirming dismissal for plaintiff’s failure to conform complaint to pleading rules
and collecting cases).
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Rule 8 serves the important purpose of requiring plaintiffs to state their
claims intelligibly so as to inform the defendants of the legal claims being
asserted.
Something labeled a complaint but written more as a press release,
prolix in evidentiary detail, yet without simplicity, conciseness and
clarity as to whom plaintiffs are suing for what wrongs, fails to
perform the essential functions of a complaint.
M cHenry v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996). In its sheer length,
Beverly has made her complaint unintelligible “by scattering and concealing in a
morass of irrelevancies the few allegations that matter.” Garst, 328 F.3d at 378.
And prolixity is not even the main problem. Although Beverly is a licensed
attorney in the State of Illinois, 4 she has curiously eschewed the traditional
pleading style characterized by a short recitation of the facts followed by claims
for relief. Instead, her first and only “Claim For Relief,” R. doc. 1 at 13, goes on
for 463 paragraphs spanning 83 pages, and yet it neither identifies a concrete
legal theory nor targets a particular defendant. She requests specific relief at the
end of her pleading, but by this point not even the most attentive of readers could
figure out who did what to whom. In short, it hardly matters whether the district
court dismissed Beverly’s complaint because it believed all of her claims were
4
See R. doc. 1 at 7. W hile we generally construe pro se pleadings liberally,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the same courtesy need not be
extended to licensed attorneys. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.
2001).
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barred by Rooker-Feldman or simply because it could not separate the wheat from
the chaff. It was not the district court’s job to stitch together cognizable claims
for relief from the wholly deficient pleading that Beverly filed. As we have
frequently noted, we are loath to reverse a district court for refusing to do the
litigant’s job. See, e.g., M itchell v. City of M oore, Okla., 218 F.3d 1190, 1199
(10th Cir. 2000) (affirming grant of summary judgment where non-movant
submitted inadequate response); SIL-FLO , Inc. v. SFHC, Inc., 917 F.2d 1507,
1513-14 (10th Cir. 1990) (deferring to district court’s ruling on jury instructions).
B. Order D enying M otions to Seal Complaint
Along with her complaint, Beverly filed two motions in the district court
seeking to seal the complaint and other documents filed in the case or to proceed
under a pseudonym. See R. docs. 2,3. As an alternative, she requested that
documents filed in the case not be placed on PA CER, the court’s internet filing
website. In support of her motion, Beverly argued that because she has been
denied access to Joseph, she was not able to speak to him prior to filing the
law suit. She maintained, however, that he would be “profoundly embarrassed” if
the details related in the complaint were to become publicly available. Id. doc. 3
at 3. And she argued that releasing the complaint to the public w ould
“constitute[] a profound invasion of her own privacy.” Id. A magistrate judge
denied both motions, holding that Beverly failed to demonstrate any basis for
sealing documents filed in the case. Beverly appealed the decision to the district
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court judge, who upheld it by order dated December 16, 2005, concluding that the
m agistrate’s decision w as not contrary to law.
W hether judicial records and other case-related information should be
sealed or otherwise withheld from the public is a matter left to the sound
discretion of the district court. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
599 (1978). Accordingly, we will not disturb the district court’s decision to keep
the case file public unless we have a “definite and firm conviction that [it] made a
clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” M oothart v. Bell, 21 F.3d 1499, 1504 (10th Cir. 1994) (quotation
omitted). Beverly fails to convince us under this standard that the district court
abused its discretion in denying the relief requested in her motions.
Courts have long recognized a common-law right of access to judicial
records. Nixon, 435 U.S. at 597; Lanphere & Urbaniak v. Colorado, 21 F.3d
1508, 1511 (10th Cir. 1994). This right, however, is not absolute. The
“presumption of access . . . can be rebutted if countervailing interests heavily
outweigh the public interests in access.” Rushford v. New Yorker M agazine, Inc.,
846 F.2d 249, 253 (4th Cir. 1988). “The party seeking to overcome the
presumption bears the burden of showing some significant interest that outweighs
the presumption.” Id. W e agree with the district court that Beverly failed to
demonstrate a basis for sealing the complaint or other documents in the case. The
complaint contains a detailed history of Beverly’s on-going feud with her family
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and discloses that Joseph has been diagnosed with Alzheimer’s disease. W e are
not convinced, however, that Beverly’s privacy concern with respect to this
information is sufficiently critical to outweigh the strong presumption in favor of
public access to judicial records. Cf. James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993) (holding that plaintiffs should have been permitted to use pseudonyms
so as to prevent their children from learning the true identity of their biological
father). We also note that much of the information contained in Beverly’s
complaint appears to have been disclosed previously in the public probate court
proceedings, further undermining her privacy concerns.
C. M otions Panel Rulings
Finally, Beverly asks us to reconsider the following two orders issued by
motions panels of this court during the pendency of her appeal: (1) a February 6,
2006, order holding that she is not legally authorized to act for Joseph and
dismissing him from the appeal; and (2) a M arch 30, 2006, order imposing
sanctions on Beverly for filing frivolous motions and unnecessarily burdening this
court.
M otions panel decisions are tentative and subject to reexamination by the
merits panel. Stifel, Nicolaus & Co. v. Woolsey & Co., 81 F.3d 1540, 1544
(10th Cir. 1996). W ith respect to the first order, Beverly argues that under
Colorado law, she has standing to pursue claims on behalf of her father, and
therefore, the motions panel committed error in dismissing him from the appeal.
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In support, she cites In re Estate of M ilstein v. Ayers, 955 P.2d 78, 81 (Colo. Ct.
App. 1998), a case in which the court permitted a son to bring claims on behalf of
his incapacitated mother over the objections of her guardian. In Ayers, the court
held that “[b]ecause a guardianship proceeding involves a potential deprivation of
fundamental rights and liberties, it implicates constitutional issues.” Id. at 81.
Therefore, it held that the concept of third-party standing applied to guardianship
proceedings. Id.W e agree with Beverly that under Ayers, she has standing to pursue claims
on behalf of her father involving alleged deprivations of his constitutional rights.
Neither Ayers nor any other case that she cites, however, sanctions the practice of
asserting such claims pro se. 5 As the motions panel held in its February 6, 2006,
order, under this court’s precedent, even if Beverly were Joseph’s legal guardian,
she would not be able to bring suit on his behalf without the assistance of
5
Contrary to Beverly’s argument, her case is not sufficiently analogous to
Winkelman v. Parma City School District, No. 04-4159, currently pending in the
Sixth Circuit, to justify her repeated attempts to set aside this court’s February 6,
2006, order. Winkelman involves the narrow question of whether parents may
prosecute claims pro se on behalf of their minor children under the Individuals
with Disabilities Education Act (“IDEA”). The Supreme Court’s grant of a stay
in that case pending disposition of the W inkelmans’s petition for certiorari is of
no relevance here. Joseph is not Beverly’s minor child, she is not his legal
guardian, and she admittedly does not know what his w ishes are with respect to
the prosecution of this appeal. Winkelman and other IDEA cases involving pro se
parental representation of minor children are simply inapposite.
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counsel. See Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986) (holding that
father did not have right to represent minor daughters pro se).
It goes without saying that it is not in the interests of minors or
incompetents that they be represented by non-attorneys. W here they
have claims that require adjudication, they are entitled to trained
legal assistance so their rights may be fully protected.
Cheung v. Youth Orchestra Found. of Buffalo, 906 F.2d 59, 61 (2d Cir. 1990). A s
the Cheung court noted, to allow guardians to bring pro se litigation also invites
abuse, as the present case may demonstrate. Although Beverly claims to be a
licensed attorney, she is not licensed in the State of Colorado and she has neither
sought nor been granted permission to practice before this court. Accordingly,
she has no right to prosecute this appeal on Joseph’s behalf, and the motions
panel correctly dismissed him from the appeal.
In the M arch 30, 2006, order, the motions panel sanctioned Beverly in the
amount of $500 for filing frivolous motions seeking unwarranted relief. See
10th Cir. R. 46.5(B)(2). W ithin three months of her appeal being docketed,
Beverly filed between five and seven motions, depending on how you count them,
seeking everything from an emergency writ of mandamus on Joseph’s behalf to an
order requiring the clerk of this court to serve her via email. A motions panel
denied the motions and warned Beverly that repeated violations of 10th Cir.
R. 46.5 would potentially lead to sanctions. On M arch 7, 2006, after Beverly
twice sought reconsideration of a decided issue, she w as ordered to show cause
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why sanctions should not be imposed. The motions panel ordered the sanctions
upon receiving Beverly’s response.
This court has the inherent power to impose sanctions that are necessary to
regulate its docket, promote judicial efficiency, and deter frivolous filings.
Christensen v. Ward, 916 F.2d 1462, 1469 (10th Cir. 1990). Beverly’s repeated
frivolous motions have caused this court to expend valuable time and resources
that could have been better spent addressing meritorious arguments advanced by
rule-abiding litigants. W e therefore uphold the M arch 30, 2006, order. W e
further O RDER that Beverly shall not be permitted to pursue additional appeals in
this court until she provides adequate proof that she has complied with the
sanctions imposed in this case. Christensen v. Ward, 916 F.2d 1485, 1485 (10th
Cir. 1990)
The judgment of the district court is A FFIRM ED. Beverly’s request to
vacate the orders of February 6, 2006, and M arch 30, 2006, is DENIED, and all
other pending motions are DENIED as moot.
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