Cohen v. Hartman

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 19, 2024
• Docket: 23-1364
• Status: Unpublished

Opinion

Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 19, 2024 _________________________________ Christopher M. Wolpert Clerk of Court EMILY COHEN,

Plaintiff - Appellant,

v. No. 23-1364 (D.C. No. 1:22-CV-00773-WJM-SKC) ANDREW HARTMAN, in his official (D. Colo.) capacity; ANNE KELLY, in her official capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, MORITZ, and CARSON, Circuit Judges. _________________________________

Emily Cohen appeals from the district court’s order denying her second

emergency motion for injunction. Her motion sought to enjoin the defendants from

violating the Americans with Disabilities Act (ADA) and her constitutional rights in

connection with her ongoing state criminal proceedings. Because the state criminal

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 2

proceedings have ended, her request for injunctive relief has become moot and we

therefore dismiss this appeal.

BACKGROUND

Ms. Cohen’s ADA Complaint

Ms. Cohen is a disbarred Colorado attorney who has been named a defendant

in two separate Colorado state court criminal proceedings.1 She filed her complaint

in this federal court action in March 2022. The complaint named as defendants

Andrew Hartman, a state court judge, and Anne Kelly, a state deputy district

attorney, in their official capacities. It asserted claims under Title II of the ADA for

failure to accommodate, disability discrimination, and retaliation. The complaint

repeatedly stated that Ms. Cohen sought only compensatory damages and did not

seek injunctive relief. See, e.g., Jt. Suppl. App., vol. 1 at 19, 22, 29.

The defendants moved to dismiss the complaint or for a more definite

statement. See Fed. R. Civ. P. 8(a), 12(b). The district court granted

Judge Hartman’s request for a more definite statement and set a deadline for

Ms. Cohen to file an amended complaint if she wished to cure the defects and

1 We typically construe a pro se party’s filings liberally, but we need not extend the same courtesy to licensed attorneys. See Mann v. Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007). Because Ms. Cohen has legal training, even though she has been disbarred, we will not afford her filings the liberal construction typically extended to pro se litigants. Even if we were to construe her pleadings liberally, however, we would still dismiss this appeal.

2 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 3

deficiencies in her complaint. Before filing her amended complaint, however,

Ms. Cohen filed two motions for preliminary injunctive relief.2

Ms. Cohen’s Motions for Injunctive Relief

Ms. Cohen first filed a “Verified Emergency Motion for a Temporary

Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief.”

Jt. Suppl. App., vol. 1 at 109-21. The district court denied that motion without

prejudice, concluding it could not clearly discern which of the defendants’ specific

actions Ms. Cohen was seeking to enjoin.

Ms. Cohen filed her second motion for injunction, at issue in this appeal, on

November 13, 2023. Jt. Suppl. App., vol. 1 at 134-50. To establish context for the

injunctive relief she sought through the motion, we will briefly describe the state

court criminal proceedings at issue in this case.

Case No. 14CR437

In April 2015, Ms. Cohen was convicted in state court of thirteen counts of

theft for taking money from immigration clients or their payors without providing the

legal services they paid for and without refunding the money.3 People v. Cohen,

440 P.3d 1256, 1259-60 (Colo. App. 2019). She appealed her conviction to the

2 Ms. Cohen eventually filed an amended complaint. That complaint, which was 92 pages long and contained 347 paragraphs, again asserted three ADA-related claims. Jt. Suppl. App., vol. 2 at 392-483. The request for relief stated she sought compensatory damages but did not mention prospective relief. Id. at 482. 3 This conduct also resulted in her disbarment. See People v. Cohen, 369 P.3d 289, 297 (Colo. O.P.D.J. 2016). 3 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 4

Colorado Court of Appeals. In 2019, that court ruled that the trial court had erred by

admitting hearsay evidence. Id. at 1260. It therefore reversed the judgment and

remanded the case for a new trial. Id. at 1265.

Because Ms. Cohen had previously failed to appear in person at a July 2021

hearing, claiming she had been diagnosed with COVID-19, the state district court had

ruled that she had to support any request to appear remotely due to a COVID-19

diagnosis with COVID-19 test results. The court set the case for a status hearing on

November 2, 2021, and ordered Ms. Cohen to appear in person. On the day before

the November 2 hearing, Ms. Cohen notified the court that she would appear virtually

at the next day’s hearing. Her pleading attached a doctor’s letter claiming she had

tested positive for COVID-19 on October 28, 2021.

But at the November 2 hearing, the prosecution presented evidence showing

that letter was fraudulent. The state district court therefore issued a warrant for

Ms. Cohen’s arrest. She was arrested in Iowa and extradited to Boulder. After her

return to Colorado, in order to resolve the charges in Case No. 14CR437, Ms. Cohen

pled guilty to a single felony theft count.

Notwithstanding her guilty plea, Ms. Cohen appealed her conviction to the

Colorado Court of Appeals (Case No. 22CA77). That appeal remained pending at the

time she filed her second motion for preliminary injunction. But in July 2024, the

4 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 5

court of appeals affirmed her conviction. See People v. Cohen, No. 22CA0077,

2024 WL 3872911, at *8 (Colo. App. July 11, 2024) (unpublished).4

Case No. 21CR1982

Because she had allegedly submitted a fraudulent doctor’s letter to the court in

connection with the November 2 hearing, as well as two prior fraudulent documents

in connection with her previous July 2021 claim of a positive COVID-19 diagnosis,

Ms. Cohen was criminally charged with three counts of attempting to influence a

public servant and three counts of forgery.

After several counsel entered appearances for Ms. Cohen in No. 21CR1982

and then withdrew, the state court held a hearing to address her concerns about her

then-current counsel, Kathleen Sinnott. The court determined that Ms. Sinnott would

remain as counsel for Ms. Cohen. See Jt. Suppl. App., vol. 2 at 343 (order of

Aug. 21, 2023). Following the hearing, however, Ms. Cohen sent emails to the court

expressing a desire to represent herself. See id. at 344. After a further hearing, at

which Ms. Cohen denied that she had requested to represent herself, the court found

that Ms. Cohen’s “vacillation and her delay in asserting her right to represent herself

constitutes a manipulation of the trial process and therefore a waiver of her right to

self-representation.” Id. at 345. It therefore denied Ms. Cohen’s request to represent

herself and ordered the case to proceed to trial.

4 The court stated one of her claims would more properly be pursued in a motion for postconviction relief. See Cohen, 2024 WL 3872911, at *7. 5 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 6

But Ms. Sinnott also later withdrew from representing Ms. Cohen, and

Jeffery L. Weeden was appointed to represent her. Then he in turn moved to

withdraw based on irreconcilable conflicts, including Ms. Cohen’s filing of a

complaint against him with the Colorado Office of Attorney Regulation Counsel. Id.

at 374. After holding an additional hearing, the court granted the motion to withdraw

and advised Ms. Cohen that an implied waiver of counsel could be found based on

her conduct. Id. at 377.

The state court scheduled a trial for December 4, 2023. The court informed

Ms. Cohen that it intended to proceed with trial on that date with Ms. Cohen

representing herself, but it also informed her she could apply for alternate defense

counsel. Id. It was then that she filed her second injunction motion in this case,

complaining that she had been ordered to appear at trial “without a lawyer and

without her ADA Compl[ia]nt trained service dog.” Aplt. App. at 8 (internal

quotation marks omitted).

District Court’s Disposition and Appeal

The district court denied the motion, concluding that Younger v. Harris,

401 U.S. 37 (1971), required it to abstain from deciding the merits of the request for

injunctive relief. Ms. Cohen appealed the denial. See 28 U.S.C. § 1292(a)(1)

(permitting interlocutory appeal of orders denying injunctions).

Additional Facts Relating to the Motion to Dismiss This Appeal

In February 2024, Judge Hartman, styling himself the Twentieth Judicial

District because he had been sued in his official capacity, filed a motion to dismiss

6 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 7

this appeal for lack of subject matter jurisdiction.5 He provided additional facts to

show that the appeal had become moot. Ms. Cohen has also supplied us with

additional facts relating to the mootness issue. These facts are as follows.

On December 4, 2023, after the district court denied her second motion for an

injunction, Ms. Cohen pled guilty to one count of forgery in Case No. 21CR1982.

Judge Hartman asserts that because of her guilty plea she no longer requires a service

dog to attend a trial with her in that case, or counsel to represent her. He further

notes Ms. Cohen appealed her forgery conviction to the Colorado Court of Appeals

(Case No. 23CA2114), but that court has dismissed her appeal.

In her response to the motion to dismiss, Ms. Cohen asserted that although the

court of appeals had dismissed her forgery appeal, she had filed a petition seeking

rehearing of the dismissal, which she stated remained pending before the Colorado

Court of Appeals. The motion to dismiss this appeal, Ms. Cohen’s response, and the

reply were referred to this merits panel.

Merits briefing proceeded. Judge Hartman attached to his merits brief an order

of the Colorado Court of Appeals dated March 29, 2024, in 23CA2114, denying

Ms. Cohen’s petition for rehearing.6 Ms. Cohen then responded in her merits reply

5 Defendant Kelly did not join his motion to dismiss, but in her merits brief she also asserted that the appeal had become moot. 6 In its order the court of appeals referred to the rehearing petition as a “motion to reconsider.” 7 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 8

brief with an attachment showing that on April 25, 2024, she had asked the Colorado

Court of Appeals to withdraw its mandate and to reinstate her appeal.

DISCUSSION

Ms. Cohen’s Appeal Has Become Moot

The subject of this interlocutory appeal is narrow. We are only concerned with

whether the district court properly denied Ms. Cohen’s second emergency motion for

a preliminary injunction. Because the controversy over the alleged injuries that the

motion sought to prevent has become moot, we must dismiss this appeal.

“Constitutional mootness stems from Article III’s requirement that federal

courts only adjudicate ‘Cases’ or ‘Controversies.’” Bacote v. Fed. Bureau of

Prisons, 94 F.4th 1162, 1166 (10th Cir. 2024) (quoting U.S. Const. art. III, § 2, cl. 1).

“The doctrine of mootness rests on a simple principle: the controversy that existed at

litigation’s commencement may dissipate before its conclusion.” Id. “A suit

becomes moot when the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome.” Brown v. Buhman, 822 F.3d 1151, 1165

(10th Cir. 2016) (internal quotation marks omitted). In particular, “[a]n injunctive

relief claim becomes moot when the plaintiff’s continued susceptibility to injury is no

longer reasonably certain or is based on speculation and conjecture.” Robert v.

Austin, 72 F.4th 1160, 1164 (10th Cir. 2023) (internal quotation marks omitted), cert.

denied, 144 S. Ct. 573 (2024); see also Rhodes v. Judiscak, 676 F.3d 931, 935

(10th Cir. 2012) (assessing mootness by asking whether a favorable decision by the

court would presently affect or have a “more-than-speculative chance” of affecting

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the parties’ rights (internal quotation marks omitted)). “The defendant bears the

burden of establishing that a once-live case has become moot.” Robert, 72 F.4th

at 1163-64 (internal quotation marks omitted).

Although Ms. Cohen’s second motion for injunction described at length

various wrongful actions the defendants had allegedly taken against her in both of her

criminal cases, and broadly requested injunctive relief against the ongoing denial of

her constitutional rights and failure to accommodate her disabilities, its gist was that

the court should enter an injunction to protect her rights under the ADA and/or the

Constitution in connection with further proceedings in the forgery case. See

Jt. Suppl. App., vol. 1 at 136, 137-38, 141. Ms. Cohen’s prayer for relief requested

“that [the district court] issue an emergency injunction ordering Defendants to follow

federal law, including to cease denying her right to counsel, to cease denying access

to the state courts via its ban on her service dog, and to cease its refusal to order

appointment of counsel.” Id. at 148 (boldface type and underlining omitted).

But the forgery case is over. It ended in state district court when Ms. Cohen

pled guilty. She no longer requires a lawyer to represent her at trial in that case or a

service dog to accompany her, as no trial will be held. And although Ms. Cohen

appealed to the Colorado Court of Appeals, that court has dismissed her appeal and

has also denied her petition for rehearing from the dismissal. In addition, we note

that on May 24, 2024, the court of appeals also denied her motion to recall its

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mandate. Order of Court, People v. Cohen, No. 2023CA2114 (Colo. App. May 24,

2024).7

Ms. Cohen presents several arguments that this appeal is not moot, but none

persuades us. She first argues this appeal cannot be moot so long as the federal

district court case underlying her motion for an injunction remains pending and the

district court’s order denying an injunction has not been reversed or vacated. That

argument is frivolous; it fundamentally misperceives the scope of this appeal and the

nature of the injury required to demonstrate a live case and controversy concerning

the appeal.

She next contends that her other appeal before the Colorado Court of Appeals

concerning the theft conviction, No. 22CA77, is fully briefed and remains pending.

Resp. to Mot. to Dismiss at 3. But she does not explain how her appeal in

No. 22CA77, which has since been resolved, demonstrates the existence of a live

controversy. We will not attempt to make an argument on that point for her.

Ms. Cohen also argues the probationary term of her sentence will “giv[e] these

defendants jurisdiction over Ms. Cohen for at least another three years.” Id. at 4.

She asserts the defendants have continued to violate her right to reasonable

accommodation for her disability by (1) failing to email to her orders the state courts

7 Although this order is not part of the record on appeal, we take judicial notice of it. See United States v. Leal, 921 F.3d 951, 963 n.10 (10th Cir. 2019) (taking judicial notice of docket information from another court); Fed. R. Evid. 201(b)(2). 10 Appellate Case: 23-1364 Document: 100-1 Date Filed: 09/19/2024 Page: 11

have entered in her cases, (2) refusing to sign an order relating to her forgery appeal,8

(3) declining to accept her email filings, and (4) denying her requests for “assistance

filling out forms, filing forms, and making payments to the probation department.”

Id. at 7. But these particular harms (along with the assertion that they warrant relief

under the ADA) are newly asserted and differ from the harms she previously

described in her emergency motion for injunction. They were not presented to the

district court as grounds for injunctive relief and are not before us. See Little v. Budd

Co., 955 F.3d 816, 821 (10th Cir. 2020) (“[A]bsent extraordinary circumstances,

arguments raised for the first time on appeal are waived.”). We therefore decline to

consider the alleged harms as evidence that a cognizable, ongoing case or

controversy continues to exist concerning the request for injunctive relief.

CONCLUSION

Because Ms. Cohen no longer remains susceptible to the injury she sought to

enjoin through her second emergency motion for a preliminary injunction, her appeal

is moot. We therefore lack jurisdiction to entertain the merits of the instant appeal.

The Twentieth Judicial District’s motion to dismiss this appeal is granted.

Entered for the Court

Nancy L. Moritz Circuit Judge

8 As noted, that appeal has been dismissed and the Colorado Court of Appeals has both denied reconsideration and declined to withdraw its mandate. 11