Zhu v. Kansas Department of Health and Environment

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 8, 2024
• Docket: 23-3176
• Status: Unpublished

Opinion

Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 8, 2024 _________________________________ Christopher M. Wolpert Clerk of Court XIANGYUAN SUE ZHU,

Plaintiff - Appellant,

v. No. 23-3176 (D.C. No. 2:23-CV-02116-JAR-RES) KANSAS DEPARTMENT OF HEALTH (D. Kan.) AND ENVIRONMENT,

Defendant - Appellee.

––––––––––––––––––––––––––––––––––– In re: XIANGYUAN SUE ZHU, No. 23-3177 (D.C. No. 2:23-MC-00204-JAR) Petitioner - Appellant. (D. Kan.) _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

Xiangyuan Sue Zhu is subject to filing restrictions in the United States District

Court for the District of Kansas. She appeals the district court’s orders denying

(1) her petition for permission to file a new pro se complaint, and (2) her motion for

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 2

reconsideration of that denial. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

I. Background

In 2007, the United States District Court for the District of Kansas imposed a

filing restrictions order (“FRO”) which required Zhu to seek the court’s permission to

file a new pro se complaint. The court justified the restrictions based on Zhu’s “long

history of vexatious, harassing and duplicative lawsuits,” which were “manifestly

abusive, overreaching and straining on court resources.” FRO at 9, 10, Zhu v. Fed.

Hous. Fin. Bd., No. 04-2539-KHV (D. Kan. May 1, 2007), ECF No. 473.

Zhu filed a new pro se complaint in the federal district court in Kansas in

March 2023. After the complaint was dismissed due to Zhu’s failure to comply with

the FRO, Zhu delivered a document to the district court captioned “Notice of

Removal.” With this document, she purported to remove from Kansas state court a

case she had filed pro se against the Kansas Department of Health and Environment

(“KDHE”). Suppl. R., Vol. 1 at 6. A few weeks later Zhu submitted a petition for

permission to initiate a new pro se civil action, a proposed civil complaint, and other

documents.

The district court denied Zhu’s petition on May 3, 2023. It construed her

proposed complaint as stemming from her five-year dispute with KDHE regarding

Medicaid benefits. The court noted that Zhu had litigated her dispute with KDHE in

state court, culminating in a decision by the Kansas Court of Appeals that remanded

one issue the agency failed to address and otherwise affirmed KDHE’s denial of

2 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 3

relief. The Kansas Supreme Court subsequently denied Zhu’s petition for review as

untimely.

The district court concluded that Zhu’s so-called Notice of Removal and

proposed pro se complaint revealed an ongoing need for filing restrictions. It

construed her complaint as asking it “to review the validity of the [Kansas] Court of

Appeals mandate.” R., Vol. 2 at 8. The district court also noted that the state courts

had characterized her filings as “voluminous, incomprehensible and vitriolic.” Id. at

7-8. Observing that Zhu’s proposed complaint sought “the exact same relief” that the

state courts had denied, id. at 5, the district court concluded the Rooker-Feldman1

doctrine barred the complaint. And to the extent Zhu’s state court action remained

pending on remand, the court concluded the proposed complaint was subject to

dismissal under the Colorado River2 doctrine. Further, the district court held that

Zhu could not remove a state court case in which she was the plaintiff. And it cited

grounds for concluding that Zhu had not alleged a basis for federal question

jurisdiction. The district court therefore denied Zhu permission to proceed on her

Notice of Removal or her pro se complaint.

Zhu submitted a Motion to Reconsider and other documents on May 16, 2023.

The district court denied that motion on October 6, 2023, stating:

The so-called Notice of Removal and the proposed civil pleadings which plaintiff has submitted since March 2023—and continues to submit—reveal

1 Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. App. v. Feldman, 460 U.S. 462 (1983). 2 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). 3 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 4

that the need for [filing] restrictions is ongoing. The Clerk of Court has received more than 200 pages of additional filings since the Court denied plaintiff leave to proceed. These filings demonstrate no basis for reconsideration . . . . Id. at 12. Zhu filed a timely notice appealing the district court’s May 3 and October

6 orders.3

II. Discussion

We review for an abuse of discretion the district court’s application of

previously imposed filing restrictions. Cf. United States v. Nicholson, 983 F.2d 983,

988 (10th Cir. 1993) (stating that district court decisions involving “control of the

docket and parties . . . are reviewed only for abuse of discretion” (internal quotation

marks omitted)); cf. Tripati v. Beaman, 878 F.2d 351, 354 (10th Cir. 1989) (noting

district court’s imposition of filing restrictions is reviewed for abuse of discretion).

We also review for an abuse of discretion a district court’s denial of a motion to

reconsider under Rule 59(e). See Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167,

1172 (10th Cir. 2013). Because Zhu proceeds pro se, we liberally construe her

filings but we do not act as her advocate. See James v. Wadas, 724 F.3d 1312, 1315

(10th Cir. 2013).

3 Zhu’s timely Motion to Reconsider under Federal Rule of Civil Procedure 59(e) tolled the beginning of her time to file her notice of appeal as to the district court’s May 3, 2023, order until the district court disposed of that motion on October 6, 2023. See Fed. R. App. P. 4(a)(4)(A)(iv). Her notice of appeal naming the October 6 order was sufficient to encompass the May 3 order as well. See Fed. R. App. P. 3(c)(5)(B). 4 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 5

A. Validity of the FRO

Zhu contends the FRO is invalid to the extent it restricts her from filing future

pro se actions against new defendants. She argues that the district court lacked

jurisdiction to enter this aspect of the FRO in 2007 because there was no case or

controversy between Zhu and future defendants at that time. She maintains that the

court therefore also lacked jurisdiction to enforce the allegedly partially void FRO in

2023 to preclude her from filing a new pro se complaint against a new defendant.4

Zhu’s argument misunderstands the basis for the district court’s authority to

impose filing restrictions. Federal courts have “the inherent power . . . to regulate the

activities of abusive litigants by imposing carefully tailored restrictions under the

appropriate circumstances.” Tripati, 878 F.2d at 352 (internal quotation marks

omitted). This inherent power derives from 28 U.S.C. § 1651(a), which permits a

court to enter orders “necessary or appropriate in aid of” its jurisdiction. See Tripati,

878 F.2d at 352; Werner v. State of Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994).

And it extends to “sanctions that are necessary to regulate the docket, promote

judicial efficiency, and . . . deter frivolous filings.” Van Sickle v. Holloway, 791 F.2d

1431, 1437 (10th Cir. 1986); see also Tripati, 878 F.2d at 352 (noting district court

has power under § 1651(a) to enjoin abusive and vexatious litigants). This court has

imposed restrictions similar to those in the FRO on future appeals by pro se litigants

4 Zhu did not raise this contention in the district court, but we address it because she is challenging the district court’s jurisdiction to enter the relevant orders. See Zapata-Chacon v. Garland, 51 F.4th 1191, 1199 (10th Cir. 2022) (“[A] party may invoke a jurisdictional argument at any time in the litigation.”). 5 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 6

who have abused the appellate process. See, e.g., Werner, 32 F.3d at 1448-49

(requiring party to obtain court’s permission to proceed in the future as a pro se

appellant or petitioner). Zhu has not shown that the district court exceeded its

authority under § 1651(a) in entering the FRO to enjoin her from pursuing abusive

pro se litigation against future defendants.

B. Authority to Enforce the FRO

Zhu also contends that the same district court judge could not both enter the

FRO in 2007 and apply the FRO to her new proposed pro se complaint in 2023. The

cases she relies on are inapposite.5 District court judges routinely enter, construe,

and apply their own orders in civil cases, and Zhu points to no authority suggesting

this process necessarily runs afoul of due process protections.6 And despite Zhu’s

assertion, the district court judge did not prosecute and convict her in this matter.

5 See In re Murchison, 349 U.S. 133, 134-35, 139 (1955) (holding it was a violation of due process for the same state court judge to act as a “one-man grand jury” in secret hearings, to charge witnesses with perjury and contempt, and to try those witnesses for contempt (internal quotation marks omitted)); Wong Yang Sung v. McGrath, 339 U.S. 33, 41, 45-46 (1950) (condemning “the practice [in deportation proceedings] of embodying in one person or agency the duties of prosecutor and judge”), judgment modified, 339 U.S. 908 (1950), superseded by statute on other grounds as stated in Ardestani v. INS, 502 U.S. 129, 133-34 (1991); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (agreeing with the district court “that prior involvement in some aspects of a case will not necessarily bar a welfare official from acting as a decision maker” but concluding the official should not “have participated in making the determination under review”). 6 By way of example, district court judges may be called upon to construe and apply their previous orders under Federal Rules of Civil Procedure 41(b) (addressing dismissal for failure “to comply with . . . a court order”) and 37(b)(2) (addressing sanctions for failure to comply with court orders related to discovery). 6 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 7

C. Continuing Need for Filing Restrictions

As to the continuing need for filing restrictions, Zhu argues that the record

fails to show that the state courts considered her filings to be voluminous,

incomprehensible, and vitriolic. But the record clearly supports the district court’s

finding. See Suppl. R., Vol. 1 at 55, 56, 59 (Kansas Court of Appeals decision); id. at

37, 39 (Zhu’s proposed complaint).

D. Deficits in Proposed Complaint

Zhu argues the district court erred in holding that her proposed complaint

failed to allege a basis for federal question jurisdiction. But the district court’s key

rulings in its May 3 order are: (1) to the extent Zhu’s state court proceedings are

final, her complaint is barred by the Rooker-Feldman doctrine, (2) to the extent Zhu’s

state court proceedings remain pending, the Colorado River doctrine requires the

district court to abstain, and (3) Zhu can’t remove a state court case in which she is

the plaintiff. Zhu raises no meritorious challenges to any of these rulings. And even

if she had pleaded a basis for federal question jurisdiction, these holdings would

support the district court’s denial of her petition to file a new pro se complaint.

The Rooker-Feldman doctrine precludes federal courts—other than the

Supreme Court—from exercising jurisdiction over “cases brought by state-court

losers complaining of injuries caused by state-court judgments rendered before the

district court proceedings commenced and inviting district court review and rejection

of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005). Rooker-Feldman applies if a litigant’s claims “specifically seek to

7 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 8

modify or set aside a state court judgment.” Graff v. Aberdeen Enters., II, Inc.,

65 F.4th 500, 515 (10th Cir. 2023). We note that Zhu does not disagree that her

complaint sought the same relief she was denied in state court. Nor does she quarrel

with the district court’s conclusion that she ultimately sought a federal court ruling

that the state court wrongfully entered judgment against her.

Nevertheless, Zhu argues that Rooker-Feldman does not apply to parallel state

and federal litigation. See Exxon Mobil, 544 U.S. at 284 (holding the doctrine applies

to “complain[ts] of injuries caused by state-court judgments rendered before the

district court proceedings commenced”). But the district court held, alternatively,

that in the event that Zhu’s state court action remained pending, her complaint would

be dismissed under the Colorado River doctrine. Under that doctrine, a court must

consider the following factors: “(1) whether the state or federal court first assumed

jurisdiction over the same res; (2) the inconvenience of the federal forum; (3) the

desirability of avoiding piecemeal litigation; and (4) the order in which jurisdiction

was obtained by the concurrent forums.” D.A. Osguthorpe Fam. P’ship v. ASC Utah,

Inc., 705 F.3d 1223, 1234 (10th Cir. 2013) (internal quotation marks omitted). The

“paramount consideration” is “the danger of piecemeal litigation.” Id. (internal

quotation marks omitted). Zhu does not contend that the district court misapplied

these factors in holding that even if her state court action remained pending it was

subject to dismissal.

Zhu also argues that Rooker-Feldman and Colorado River do not apply to state

agency decisions, but the case she relies on is distinguishable. Verizon Md., Inc. v.

8 Appellate Case: 23-3176 Document: 010111076031 Date Filed: 07/08/2024 Page: 9

Pub. Serv. Comm’n of Md., 535 U.S. 635 (2002), held that the Rooker-Feldman

“doctrine has no application to judicial review of executive action, including

determinations made by a state administrative agency.” Id. at 644 n.3.7 In Verizon,

however, the plaintiff directly challenged a state agency decision in the district court.

See id. at 640 (“Verizon sought declaratory and injunctive relief from the

Commission’s order.”). Here, in contrast, Zhu appealed the state agency’s decision

in state court and then sought review of the state court judgment. And as Verizon

recognized, Rooker-Feldman does apply when a plaintiff asks a federal district court

“to exercise appellate jurisdiction over state-court judgments.” Id. at 644 n.3.

Finally, Zhu contends she could remove her state court action to federal court

pursuant to the civil rights removal statute, 28 U.S.C. § 1443(1). But that provision

expressly allows removal “by the defendant.” Id. “Removal statutes are to be strictly

construed, and all doubts are to be resolved against removal.” Fajen v. Found.

Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982) (citation omitted). Zhu cites no

authority construing any removal statute to allow a plaintiff to remove a state court

case.

Zhu nonetheless insists that, because federal courts had jurisdiction to hear the

plaintiffs’ claims in Goldberg, the district court would also have jurisdiction over the

claims in her proposed complaint. She argues this is so because, similar to the

plaintiffs in Goldberg, see 397 U.S. at 255, she alleged that KDHE terminated her

7 Verizon did not address the Colorado River doctrine.

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Medicaid payments without prior notice and a hearing, in violation of her right to due

process. But there is no indication in Goldberg that the plaintiffs had brought the

same claim unsuccessfully in state court, asked a federal district court to rule that a

state court wrongfully entered judgment against them, pursued parallel claims in state

and federal courts, or attempted to remove a state court case in which they were the

plaintiffs. Goldberg is therefore irrelevant to the district court’s key rulings in this

matter.8

Zhu fails to demonstrate that the district court abused its discretion in entering

its May 3, 2023, order denying her petition for permission to initiate a new pro se

civil action or its October 6, 2023, order denying her Motion to Reconsider.

8 Zhu also appears to contend that the district court made factual errors in reaching conclusions about her eligibility for Medicaid and Medicare benefits. But the district court did not reach the merits of her underlying claims, nor do we.

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III. Conclusion

We affirm the district court’s orders. We deny Zhu’s first motion, amended

first motion, and second motion to supplement the record on appeal.9 We also deny

Zhu’s motion for appointment of counsel.

Entered for the Court

Nancy L. Moritz Circuit Judge

9 Zhu’s submissions that the district court referenced in its orders on appeal were not originally included in the record on appeal. We requested and received these documents from the district court. Thus, the record on appeal now includes Zhu’s so-called Notice of Removal, petition for permission to initiate a new pro se civil action, proposed civil complaint, affidavit of case status, and “more than 200 pages of additional filings” Zhu made after the district court denied her leave to proceed, R., Vol. 2 at 12.