Ziankovich v. Large et al

Filing 21

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 10/5/2017. I respectfully RECOMMEND that Plaintiff's Second MOTION for Temporary Restraining Order and for Order to Show Cause 14 be DENIED without prejudice; and that Plaintiff's Amended Complaint 12 be DISMISSED without prejudice pursuant to Younger v. Harris, 401 U.S. 37 (1971). (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02039-CMA-NYW
YOURAS ZIANKOVICH,
Plaintiff,
v.
BRYON M. LARGE, and
JAMES C. COYLE,
Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter is before the court on the Plaintiff Youras Ziankovich’s (“Plaintiff” or “Mr.
Ziankovich”) Second Motion for Temporary Restraining Order and Order to Show Cause Why a
Preliminary Injunction Should Not Be Issued (“Second Motion for TRO”) [#14, filed September
14, 2017], which the presiding judge, the Honorable Christine M. Arguello, referred to the
undersigned pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated September 6, 2017
[#8], and the Memorandum dated September 14, 2017 [#15]. Upon careful review of the Second
Motion for TRO, the entire case file, and applicable law, this court concludes that there is a
jurisdictional bar to both the requested injunctive relief and this action. Defendants filed a
Response to the Second Motion for TRO on October 5, 2017 [#19], 1 and this court has
determined that it is appropriate to proceed with this Recommendation without further Reply by
1

Because Defendants received notice of the Second Motion for TRO, this court construes it as a
motion for preliminary injunction under Rule 65(a), as “the procedure that is followed does not
differ functionally from that on an application for a preliminary injunction and the proceeding is
not subject to any special requirements.” 11A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: Civil § 2951 (3d ed.).

Plaintiff. D.C.COLO.LCivR 7.1(d). Accordingly, I respectfully RECOMMEND that the Motion
for TRO be DENIED without prejudice, and that this case be DISMISSED without prejudice
pursuant to Younger v. Harris, 401 U.S. 37 (1971).
BACKGROUND
Plaintiff commenced this action by filing his pro se 2 Complaint on August 24, 2017.
[#1]. Plaintiff’s Complaint stated that this “is an action for declaratory relief commenced
pursuant to 28 U.S.C. § 2201 and in accordance with the Rule 57 of the Federal Rules of Civil
Procedure.” [#1 at 2]. As Defendants, Plaintiff names Bryon M. Large (“Mr. Large”) and James
C. Coyle (“Mr. Coyle”) (collectively, “Defendants”), both of whom are legal counsel within the
Colorado Office of Attorney Regulation Counsel.

[Id.].

The Complaint also alleges that

Plaintiff’s primary residence and one of his business offices are located in Colorado. [Id. at 2–
3].
Plaintiff seeks declaratory relief that Defendants had no authority to initiate an attorney
disciplinary action against Plaintiff, because Plaintiff is not and has never been licensed in the
state of Colorado; does not practice before Colorado state courts and/or agencies; and only
practices federal immigration law in the State pursuant to 8 C.F.R. § 292.1(a)(1). [Id.]; see also
[#14-1]. Plaintiff argues that Defendants lack jurisdiction to initiate disciplinary proceedings
under the Colorado Supreme Court’s attorney regulations, as he only practices in federal court
and is subject only to New York’s attorney regulations because he is licensed in New York. See
[#14-1 at 3–6]. Plaintiff contends that the pending disciplinary action, Case No. 17PDJ037,
poses an imminent threat of danger and irreparable harm, because he may be required to disclose
2

Though proceeding pro se, Plaintiff alleges that he is an attorney licensed to practice law in the
state of New York. [#1 at 2]. As such, Plaintiff’s pleadings and filings are not entitled to a
liberal construction. See Committee on the Conduct of Attorneys v. Oliver, 510 F.3d 1219, 1223
(10th Cir. 2007); Tatten v. Bank of Am. Corp., 562 F. App’x 718, 720 (10th Cir. 2014).
2

sensitive client information that may also subject him to discipline in New York, and that any
disciplinary sanctions imposed may negatively affect his reputation. [Id. at 6–7].
On August 31, 2017, Plaintiff filed his first Motion for TRO seeking to enjoin the
disciplinary action pending in state court. [#5]. The undersigned then had the case redrawn to a
District Judge pursuant to Local Rule 40.1(c)(2)(a).

See [#6].

The presiding judge, the

Honorable Christine M. Arguello, then referred the first Motion for TRO to the undersigned
Magistrate Judge on September 6, 2017. [#9]. However, before addressing the merits of the first
Motion for TRO, this court issued an Order to Show Cause directing Plaintiff to clarify the basis
for federal subject matter jurisdiction over this action. See [#11 at 3].
Plaintiff then filed his Amended Complaint on September 10, 2017, which this court also
construed as his Response to the Order to Show Cause. See [#12]. The Amended Complaint
indicates that Plaintiff invokes this court’s federal question jurisdiction under 28 U.S.C. § 1331,
and asserts several new 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, art. I, § 8, cl. 3 of the United States Constitution. See [id. at 5–6]. Plaintiff
still requests declaratory relief in addition to attorney’s fees under 42 U.S.C. § 1988 and 28
U.S.C. § 2412. 3 [Id. at 5]. In light of Plaintiff’s Amended Complaint, this court issued a
Recommendation that Plaintiff’s first Motion for TRO be denied as moot [#13], which Judge
Arguello adopted on October 5, 2017. [#20]. Plaintiff filed his Second Motion for TRO, which
is identical to his first Motion for TRO, on September 14, 2017. [#14].
Defendants entered their appearance on September 7, 2017. See [#10]. Pursuant to the
executed summonses, Defendants were to file their answer or responsive pleading to Plaintiff’s
3

Plaintiff is not be entitled to Equal Access to Justice Act fees because he is not suing the United
States, any of its agencies, or any of its officials acting in their official capacity. See 28 U.S.C. §
2412(a)(1).
3

Complaint [#1] on or before September 15, 2017. See [#4]. On September 25, 2017, Defendants
filed a Motion to Dismiss [#18] that has not been referred to this Magistrate Judge for
Recommendation. On October 5, 2017, Defendants filed a Response to the Second Motion for
TRO. [#19]. While Mr. Ziankovich has not yet replied to the Second Motion for TRO or the
Motion to Dismiss, this court’s review of the briefing related to the Second Motion for TRO and
the Amended Complaint reveals that an expeditious Recommendation advances the guiding
principle of the Federal Rules of Civil Procedure—that the Rules be implemented in a manner to
secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R.
Civ. P. 1.
LEGAL STANDARD
Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine
facts and law in every lawsuit before them to ensure that they possess subject matter
jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether
subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage
Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). This includes a determination that the court
should abstain under Younger and its progeny. See D.L. v. Unified Sch. Dist. No. 497, 392 F.3d
1223, 1228 (10th Cir. 2004) (“Younger abstention is jurisdictional.”).
“Under the Younger abstention doctrine, federal courts should not ‘interfere with state
court proceedings by granting equitable relief—such as injunctions of important state
proceedings or declaratory judgments regarding constitutional issues in those proceedings—’
when a state forum provides an adequate avenue for relief.” Weitzel v. Div. of Occupational &

4

Prof'l Licensing of Dep’t of Commerce of State of Utah, 240 F.3d 871, 875 (10th Cir. 2001)
(quoting Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999)). Younger abstention is the
exception rather than the rule, as federal courts “have a virtually unflagging obligation to
exercise the jurisdiction given them.” Joseph A. ex rel. Corrine Wolfe v. Ingram, 275 F.3d 1253,
1267 (10th Cir. 2002) (internal ellipsis, quotation marks, and citations omitted). Yet, Younger
abstention is appropriate if:
(1) there is an ongoing state criminal, civil, or administrative proceeding, (2) the
state court provides an adequate forum to hear the claims raised in the federal
complaint, and (3) the state proceedings involve important state interests, matters
which traditionally look to state law for their resolution or implicate separately
articulated state policies.
Amanatullah v. Colorado Bd. of Med. Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999) (internal
quotation marks and citation omitted).
If the Younger conditions are satisfied, abstention is mandatory absent extraordinary
circumstances. See Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211,
1215 (10th Cir. 2003); Brown ex rel. Brown v. Day, 555 F.3d 882, 888 n.4 (10th Cir. 2009)
(noting two exceptions to Younger abstention: (1) a showing of bad faith or harassment by state
officials, or (2) the state law or regulation is “flagrantly and patently violative of express
constitutional prohibitions.” (internal quotation marks and citations omitted)). And given its
obligation to consider its own subject matter jurisdiction, this court could even raise Younger
abstention sua sponte. See Morrow v. Winslow, 94 F.3d 1386, 1390 (10th Cir. 1996); Sanchez v.
Wells Fargo Bank N.A., 307 F. App’x 155, 157 (10th Cir. 2009) (unpublished).
ANALYSIS
In opposing Mr. Ziankovich’s Second Motion for TRO, Defendants assert, inter alia, that
Mr. Ziankovich fails to establish a substantial likelihood of success on the merits, as his

5

Amended Complaint “seeks to disrupt an ongoing attorney disciplinary proceeding, [which] is
jurisdictionally barred by [Younger].” [#19 at 4; #18 at 4–8 (arguing for dismissal of Plaintiff’s
Amended Complaint under Younger)]. 4 This court respectfully agrees, as all three Younger
conditions exist. Therefore, abstention is mandatory, and I respectfully RECOMMEND that
Plaintiff’s Second Motion for TRO be DENIED without prejudice and that this action be
DISMISSED without prejudice.
First, Plaintiff’s Amended Complaint seeks declaratory relief along the lines that
Defendants have no authority to commence state attorney disciplinary proceedings against
Plaintiff [#12 at 7], and the Second Motion for TRO seeks to enjoin the proceedings before the
Presiding Disciplinary Judge during the pendency of this action [#14-1 at 2, 3, 7]. Plaintiff’s
answer to the disciplinary complaint was due September 14, 2017.

[#14-1 at 6; #14-2

(disciplinary complaint in case number 17PDJ037)]. Accordingly, it is clear that Plaintiff seeks
relief from an ongoing state administrative proceeding. See Varallo v. Colorado Supreme Court,
48 F.3d 1233 (Table), 1995 WL 105472, at *1 (10th Cir. Mar. 13, 1995) (holding that a Colorado
state attorney disciplinary proceeding constitutes an ongoing state administrative proceeding
under Younger) (relying on Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S.
423, 431–37 (1982) (same)).
Second, Plaintiff’s Amended Complaint asserts claims pursuant to § 1983 for violations
of his Fourteenth Amendment due process rights, First Amendment rights, Fifth Amendment

4

Because this court concludes that this argument necessitates denial of the Second Motion for
TRO, as well as Plaintiff’s Amended Complaint, it focuses on it. As discussed above, because
this court construes the Second Motion for TRO as a motion for preliminary injunction, it does
not address Defendants’ argument that Plaintiff is not entitled to a TRO because he failed to
comply with the procedural requirements of Rule 65(b) of the Federal Rules of Civil Procedure.
[#19 at 2–3].
6

right to be free from self-incrimination, 5 as well as violations of the Commerce Clause. See
[#12].

However, the Colorado Supreme Court provides an adequate forum for these

constitutional challenges. See Colorado Supreme Court Grievance Comm. v. Dist. Court, City &
Cty. of Denver, Colo., 850 P.2d 150, 153–54 (Colo. 1993) (en banc) (holding that constitutional
challenges to attorney disciplinary rules “fall within the inherent power and exclusive
jurisdiction of the Colorado Supreme Court to regulate, govern, and supervise the practice of
law.”); People v. Varallo, 913 P.2d 1, 3–7 (Colo. 1996) (en banc) (considering due process and
equal protection challenges to the disciplinary proceeding). Further, the Colorado Rules of Civil
Procedure provide a mechanism for appellate review of the disciplinary hearing board’s final
decision regarding, inter alia, public censure, suspension, or disbarment. Colo. R. Civ. P.
251.27; cf. Rose v. Utah, 399 F. App’x 430, 435 (10th Cir. 2010) (unpublished) (holding that the
Utah state courts provided the plaintiff an adequate forum to allege her constitutional challenges
to Utah bar disciplinary proceedings where the plaintiff could appeal a disciplinary ruling to the
Utah Supreme Court). Plaintiff offers no explanation to the contrary. See Landrith v. Hazlett,
170 F. App’x 29, 31 (10th Cir. 2006) (unpublished) (affirming the district court’s abstention
under Younger; noting, “[t]here is no indication that the [Kansas attorney disciplinary
proceedings] did not provide an adequate forum for Mr. Landrith’s federal claims”).
Third, the attorney disciplinary proceedings involve matters of important state interest.
See Goodpaster v. Supreme Court of Colorado, 952 F.3d 409 (Table), 1992 WL 7449, at *2
(10th Cir. Jan. 16, 1992) (“There is no dispute that the grievance procedures are within the
5

While the Supreme Court has held that the Fifth Amendment privilege against
self-incrimination afforded protection to an accused lawyer in a disciplinary proceeding, see
Spevack v. Klein, 385 U.S. 511, 514 (1967), the Colorado Supreme Court has interpreted that
holding narrowly, i.e., applying only to disclosures that could be used in criminal prosecutions or
could lead to such evidence, see People v. Smith, 937 P.2d 724, 729 (Colo. 1997) (en banc).
Typically, disciplinary hearings are not akin to criminal proceedings, but an accused attorney
make invoke the privilege if appropriate under the circumstances. See Smith, 937 P.2d at 729.
7

constitutionally prescribed jurisdiction of the Colorado Supreme Court and implicate important
state interests.”). The Colorado Supreme Court “has exclusive jurisdiction over lawyers and
possesses the plenary authority to regulate and supervise the practice of law in Colorado.”
Matter of Olsen, 326 P.3d 1004, 1008 (Colo. 2014); Varallo, 913 P.2d at 3 (“The Colorado
Supreme Court, as part of its inherent and plenary powers, has exclusive jurisdiction over
attorneys and the authority to regulate, govern, and supervise the practice of law in Colorado to
protect the public.”).
Based on the foregoing, all three conditions of Younger abstention are met under the
circumstances.

Indeed, the United States Court of Appeals for the Tenth Circuit (“Tenth

Circuit”) recognizes a “Middlesex abstention doctrine,” which applies Younger in the specific
context of state bar disciplinary hearings. Goodpaster, 1992 WL 7449, at *3; Beustring v.
Oklahoma Bar Ass’n, 143 F. App’x 997, 998 (10th Cir. 2005) (unpublished). Further, Plaintiff
makes no showing in his Amended Complaint that any exception to Younger abstention applies.
Compare Weitzel, 240 F.3d at 877 (“[I]t is the plaintiff’s heavy burden to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or harassment.”
(internal quotation marks and citation omitted)) with [#12 at 4 (“Defendants commenced the said
[disciplinary] action without proper authority, in violation of the federal and state law.”), 5
(alleging that Defendants refused Plaintiff’s request to dismiss the disciplinary action for lack of
jurisdiction)]; [#14-1 at 5 (same), 6 (arguing that an injunction of the disciplinary proceedings is
warranted to avoid the dangers of immediate and irreparable injury to Plaintiff)].
Based on the record before it, the court concludes that it lacks jurisdiction to consider the
merits of Plaintiff’s Second Motion for TRO, see Cunningham v. BHP Petroleum Great Britain
PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (holding that once a federal court determines that it

8

is without subject matter jurisdiction, it must not proceed to consider any other issue), and
respectfully RECOMMENDS that Plaintiff’s Second Motion for TRO be DENIED and the
Amended Complaint be DISMISSED without prejudice, see Goings v. Sumner Cty. Dist.
Attorney’s Office, 571 F. App’x 634, 639–40 (10th Cir. 2014) (unpublished) (holding that
dismissal under Younger is without prejudice).
CONCLUSION
Therefore, for the reasons stated herein, this court respectfully RECOMMENDS that:
(1)

Plaintiff’s Second Motion for TRO [#14] be DENIED without prejudice; and

(2)

That Plaintiff’s Amended Complaint [#12] be DISMISSED without prejudice. 6

DATED: October 5, 2017

BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate

6

Judge

Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may 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. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
9