Phan v. Colorado Legal Services

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 16, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KENT VU PHAN,

Plaintiff - Appellant,

v. No. 18-1307
(D.C. No. 1:18-CV-01403-LTB)
COLORADO LEGAL SERVICES, (D. Colo.)

Defendant - Appellee.

–––––––––––––––––––––––––––––––––––

KENT VU PHAN,

Plaintiff - Appellant,

v. No. 18-1343
(D.C. No. 1:17-CV-03073-LTB)
STATE FARM INSURANCE (D. Colo.)
COMPANY; KAISER PERMANENTE;
DR. PETER WEINGARTEN, M.D.; DR.
KHOI PHAM DUY, M.D.; PATTERSON
& SLAG, P.C.; BACHUS & SCHANKER,
LLC; HEALTH FIRST
COLORADO/MEDICAID AND
CHP+DHS; LUKE MEDICAL CENTER;
CONCENTRA URGENT CARE,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*

*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
 _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
_________________________________

Pro se Plaintiff-Appellant Kent Vu Phan is no stranger to the courts—he has

pursued eight appeals before us (two of which are addressed in this order and two

more are coming down the pipeline (Nos. 18-1493, 18-1494)), at least eleven

different cases in federal district court, and at least three state court cases that we are

aware of. We are sensitive to Phan’s pro se status, as well as his mental and physical

health limitations, and have liberally construed his pleadings accordingly. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (noting we liberally construe pro se

pleadings, stopping short of serving as a pro se litigant’s advocate). But Phan is

nevertheless bound by the Federal Rules of Civil Procedure. See Murray v. City of

Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002) (noting a plaintiff’s “pro se

status does not relieve him of the obligation to comply with procedural rules”). He

cannot file repetitive or frivolous claims; yet he continues to do so. This time, Phan

appeals dismissals in two district court cases: Phan v. Colo. Legal Servs., No.

1:18-CV-01403-LTB (D. Colo. June 19, 2018), and Phan v. State Farm Ins. Co., No.

1:17-CV-03073-LTB (D. Colo. July 31, 2018). Exercising jurisdiction under 28

U.S.C. § 1291, we affirm both.

estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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 STANDARD OF REVIEW

Whenever a plaintiff seeks to proceed in forma pauperis, as Phan has done

here, 28 U.S.C. § 1915(e)(2)(B) requires the district court judge to screen the

complaint and dismiss it if “the action or appeal . . . is frivolous or malicious” or

“fails to state a claim on which relief may be granted.” We usually review a district

court’s dismissal of a complaint as frivolous for an abuse of discretion. Milligan v.

Archuleta, 659 F.3d 1294, 1296 (10th Cir. 2011). But where “the frivolousness

determination turns on an issue of law, we review the determination de novo.” Id.

(internal quotation marks omitted). A district court properly dismisses a complaint as

frivolous “only if it lacks an arguable basis in either law or in fact. In other words,

dismissal is only appropriate for a claim based on an indisputably meritless legal

theory and the frivolousness determination cannot serve as a factfinding process for

the resolution of disputed facts.” Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.

2006) (citations and internal quotation marks omitted).

Moreover, to survive a § 1915 screening, each claim must include “enough

facts to state claim for relief that is plausible on its face.” Young v. Davis, 554 F.3d

1254, 1256 (10th Cir. 2009). When a district judge dismisses a complaint under

§ 1915 as failing to satisfy the pleading standards, our review is de novo. Curley v.

Perry, 246 F.3d 1278, 1281 (10th Cir. 2001). To determine plausibility, “[w]e must

accept all the well-pleaded allegations of the complaint as true and must construe

them in the light most favorable to the plaintiff.” Alvarado v. KOB-TV, L.L.C., 493

F.3d 1210, 1215 (10th Cir. 2007) (internal quotation marks omitted). “Dismissal of a

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pro se complaint for failure to state a claim is proper only where it is obvious that the

plaintiff cannot prevail on the facts he has alleged and it would be futile to give him

an opportunity to amend.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th

Cir. 1999).

CLAIMS AGAINST COLORADO LEGAL SERVICES

In the first appeal before us, Appellate Case No. 18-1307, Phan challenges the

district court’s dismissal of his claims against Colorado Legal Services (CLS). Phan

contends CLS discriminated against him based on his disability and his race when it

did not provide an attorney to represent him in two cases—a malpractice claim, and a

suit against his realtor and homeowners’ association (HOA). He thus asserts claims

against CLS under the Americans with Disabilities Act (ADA), as amended by the

ADA Amendments Act of 2008 (ADAAA), 42 U.S.C. § 12101 et seq.; the

Rehabilitation Act, 29 U.S.C. §§ 504 and 794; and 42 U.S.C. §§ 1983 and 1981. In a

thorough and cogent order, the district court dismissed Phan’s complaint against CLS

as legally frivolous in part and for failing to satisfy the pleading standards in part. We

agree with the district court’s analysis.

In pursuing his disability-based discrimination claim, Phan attempts to invoke

Title II of the ADAAA, which prohibits discrimination in services offered by public

entities. See 42 U.S.C. § 12132. To state a viable Title II claim, Phan “must allege

that (1) he is a qualified individual with a disability, (2) who was excluded from

participation in or denied the benefits of a public entity’s services, programs, or

activities, and (3) such exclusion, or denial of benefits, or discrimination was by

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reason of a disability.” Robertson v. Las Animas Cty. Sheriff’s Dep’t, 500 F.3d 1185,

1193 (10th Cir. 2007). Similarly, to recover the compensatory damages Phan seeks

under the Rehabilitation Act, he “must establish that the agency’s discrimination was

intentional.” Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1263 (10th Cir. 2018)

(internal quotation marks omitted). Phan must also make plausible allegations of

discrimination to recover in his race-based discrimination claims. Recovery under

§ 1981 for alleged racial discrimination requires Phan to show “the defendant had the

intent to discriminate on the basis of race.” Hampton v. Dillard Dep’t Stores, Inc.,

247 F.3d 1091, 1102 (10th Cir. 2001). By the same token, to state a viable equal-

protection claim under § 1983, Phan “must first make a threshold showing that [he

was] treated differently from others who were similarly situated.” Brown v. Montoya,

662 F.3d 1152, 1173 (10th Cir. 2011) (internal quotation marks omitted). As the

district court correctly concluded, Phan has failed to do so in all claims against CLS.

CLS’s decision to decline representation in both of Phan’s cases was mandated

by federal law—because CLS is a legal-service provider funded in part by the Legal

Services Corporation, it is expressly prohibited by 42 U.S.C. § 2996f(b)(1) from

providing legal assistance in fee-generating cases. CLS explained this in its letter to

Phan declining representation in the malpractice case, stating that it “do[es] not have

any attorneys that help with malpractice cases” because a malpractice claim “is a fee-

generating case.” No. 18-1307 R. at 12 (Compl. Ex. 1). CLS also explained this to

Phan when declining to represent him in his suit against his realtor and HOA

“because it could be fee-generating” and CLS is “not allowed to help [a litigant] sue

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another person or company for damages or help [a litigant] collect a debt.” Id. at 14

(Compl. Ex. 3).

Phan has utterly failed to allege any facts that would suggest he was treated

differently or discriminated against based on his race or disability. His complaint

offers nothing to suggest a plausible discrimination claim—he, like any other person

seeking representation from CLS in a fee-generating case, was directed to seek

assistance elsewhere. There is also nothing to suggest that an opportunity to amend

could cure these deficiencies. Accordingly, the district court properly dismissed with

prejudice Phan’s ADAAA, Rehabilitation Act, and § 1983 claims against CLS as

legally frivolous and appropriately dismissed with prejudice his § 1981 claim as

failing to state a claim upon which relief may be granted.

CLAIMS AGAINST STATE FARM, ET AL.

In the next appeal, Appellate Case No. 18-1343, Phan challenges the district

court’s dismissal of his claims against State Farm Insurance Company, Kaiser

Permanente, Dr. Peter Weingarten, Dr. Khoi Pham Duy, Patterson & Slag, P.C.,

Bachus & Schanker, LLC, Health First Colorado/Medicaid and CHP+DHS, Luke

Medical Center, and Concentra Urgent Care. This matter concerns a 2012 car

accident and the subsequent insurance dispute and medical treatment. Phan once

again argues all named defendants discriminated against him based on his race and

disability, in violation of the ADAAA, the Rehabilitation Act, and §§ 1981, 1983,

1985, and 1986. He further asserts State Farm violated Colorado’s bad faith

insurance practice statutes and, along with attorneys at Patterson & Slag, P.C.,

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plotted to evade service of a state court lawsuit. He also claims Bachus & Schanker,

LLC committed legal malpractice in his state court lawsuit, Health First

Colorado/Medicaid violated the ADAAA in disrupting his Medicaid benefits, and

Luke Medical Center and Concentra failed to provide him with needed medical care.

In another comprehensive order, the district court properly dismissed all of Phan’s

claims without providing relief to amend and appropriately warned Phan that it “may

impose appropriate sanctions if [he] persists in engaging in abusive litigation tactics

by filing repetitive complaints raising the same claims for relief against the same

Defendants.” No. 18-1343 R. at 150 (Order of Dismissal, at 15).

In its § 1915 screening, the district court first dismissed Phan’s claims against

Kaiser Permanente, Dr. Weingarten, and Dr. Duy. About a year prior, Phan brought

the same claims against the same defendants as he does now. In that case, Phan v.

State Farm, No. 16-cv-02728-RBJ (D. Colo. May 10, 2017), the district court

dismissed the claims for lack of subject matter jurisdiction under the Rooker-

Feldman doctrine and incorporated by reference that holding in dismissing the claims

reasserted in this case. Appropriately so. The Rooker-Feldman doctrine applies to

“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). Phan cannot lose in state court and

then expect a federal court to revisit the same claims again. See id. In that same vein,

as the district court explained to Phan, he “may not use a new action to attempt to

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resuscitate claims that have been resolved.” No. 18-1343 R. at 139 (Order of

Dismissal, at 4). Accordingly, the district court properly dismissed without prejudice

the claims against Kaiser Permanente, Dr. Weingarten, and Dr. Duy for lack of

subject-matter jurisdiction.

The district court next dismissed the claims against State Farm based on the

doctrine of res judicata. “A district court’s conclusions as to res judicata are

conclusions of law and reviewable de novo.” Clark v. Haas Group, Inc., 953 F.2d

1235, 1237 (10th Cir. 1992). Under the doctrine of res judicata, “a final judgment on

the merits of an action precludes the parties or their privies from relitigating issues

that were or could have been raised in that action.” Id. at 1238. In both the present

case and in Phan v. State Farm, No. 16-cv-02728-RBJ, Phan sued State Farm for

denying his insurance claim stemming from the 2012 car accident. In the previous

case, the court dismissed with prejudice Phan’s claims against State Farm under the

ADAAA and § 1983 as legally frivolous and dismissed his § 1981 claim for failure to

state a claim upon which relief could be granted. Because “there was an identity of

parties” and “a judgment on the merits” in the previous case, Phan is barred from

relitigating those claims. Clark, 953 at 1238; see Brooks v. Barbour Energy Corp.,

804 F.2d 1144 (10th Cir. 1986) (“[A] dismissal with prejudice by order of the court is

a judgment on the merits.”). Phan is similarly barred by the doctrine of res judicata

from bringing claims against State Farm under the Rehabilitation Act and §§ 1985

and 1986 for denying his insurance claim following the 2012 car accident. See Clark,

953 F.2d at 1238 (explaining that because “the doctrine of res judicata precludes

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parties from relitigating issues that were or could have been raised, parties cannot

defeat its application by simply alleging new legal theories” (emphasis added)). Phan

has raised identical issues, factual arguments, and the same allegations of race- and

disability-based discrimination in both cases. It follows that he knew of the same

facts when he filed his earlier case against State Farm and thus could have brought

his Rehabilitation Act and §§ 1985 and 1986 claims in the previous case and chose

not to. Thus, the district court properly dismissed with prejudice all of Phan’s claims

against State Farm under the doctrine of res judicata.

The district court then dismissed Phan’s § 1981 claims against Patterson &

Slag, P.C., Bachus & Schanker, LLC, Luke Medical Center, and Concentra Urgent

Care for failing to state a claim upon which relief may be granted. According to

Phan, the law firm of Patterson & Slag, P.C. represented State Farm in two of Phan’s

state court cases and “intentionally harassed” and discriminated against Phan based

on his race. No. 18-1343 R. at 39 (Compl., at 36). Phan also hired Bachus &

Schanker, LLC to represent him in his suits against State Farm and American Family

Insurance, but he alleges that his attorney conspired with the insurance companies

against him. Similarly, Phan contends Luke Medical Center conspired and retaliated

against him because he is an “Asian plaintiff [who] filed a lawsuit against American

defendants,” id. at 47 (Compl., at 44), and Concentra had his “name on [a] black list

of the hospital system,” id. at 50 (Compl., at 47). For a claim to survive a § 1915

screening, the plaintiff must offer more than mere conclusions and a list of legal

theories—he must allege facts that could demonstrate a plausible claim. See Hall,

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935 F.2d at 1110 (“[I]n analyzing the sufficiency of the plaintiff’s complaint, the

court need accept as true only the plaintiff’s well-pleaded factual contentions, not his

conclusory allegations.”). As previously discussed, to plead a viable § 1981 claim,

“the plaintiff must show: (1) that the plaintiff is a member of protected class; (2) that

the defendant had the intent to discriminate on the basis of race; and (3) that the

discrimination interfered with a protected activity.” Hampton, 247 F.3d at 1101-02.

Here, Phan has offered nothing more than allegations of a conspiracy against him

based on his race. As the district court noted, if anything, the complaint merely

shows Phan “disagrees with the medical Defendants’ medical conclusions and the

attorney defendants’ approach to [Phan’s] lawsuit regarding the car accident.” No.

18-1343 R. at 144 (Order of Dismissal, at 9). Because Phan fails to offer more than

mere conclusions and speculation, the district court properly dismissed without

prejudice the § 1981 claims against Patterson & Slag, P.C., Bachus & Schanker,

LLC, Luke Medical Center, and Concentra for failing to satisfy the pleading

standards.

The district court next considered Phan’s claims against Patterson & Slag,

P.C., Bachus & Schanker, LLC, Luke Medical Center, and Concentra, dismissing

them all as legally frivolous. Section 1983 requires state action, and Phan has not

alleged any—Patterson & Slag, P.C., Bachus & Schanker, LLC, Luke Medical

Center, and Concentra are all private, non-state entities and thus Phan’s § 1983

claims against them are legally frivolous. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 51 (1999) (“[T]he under-color-of-state-law element of § 1983 excludes from

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its reach merely private conduct, no matter how discriminatory or wrongful.”

(internal quotation marks omitted)). Likewise frivolous are Phan’s §§ 1985 and 1986

claims against these defendants. Section 1985 concerns suits against those who

conspire to deprive others of their civil rights and, as such, requires “that there must

be some racial, or perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.” Griffin v. Breckenridge, 403 U.S. 88, 104-05

(1971); see also Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Because

Phan has no arguable basis for imputing invidious discrimination to any actions of

the attorneys or medical providers, the district court properly dismissed with

prejudice his § 1985 claims against Patterson & Slag, P.C., Bachus & Schanker,

LLC, Luke Medical Center, and Concentra as legally frivolous. The frivolous nature

of his § 1985 claims also inherently requires dismissal of his § 1986 claims against

these defendants, as liability under § 1986 “is premised upon the existence of a valid

Section 1985 claim.” Abercrombie v. City of Catoosa, Okla., 896 F.2d 1228, 1230

(10th Cir. 1990).

Phan fares no better with his disability-discrimination claims against Patterson

& Slag, P.C., Bachus & Schanker, LLC, Luke Medical Center, and Concentra.

Because he does not have an employment relationship with any of these defendants,

Title I of the ADAAA does not apply; because none of these defendants is a public

entity, Title II does not apply; and because Phan seeks monetary damages, Title III

cannot provide the relief he seeks. See Tennessee v. Lane, 541 U.S. 509, 516-17

(2004) (explaining the ADA “forbids discrimination against persons with disabilities

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in three major areas of public life: employment, which is covered by Title I of the

statute; public services, programs, and activities, which are the subject of Title II; and

public accommodations, which are covered by Title III”); Nielsen v. Moroni Feed

Co., 162 F.3d 604, 608 n.7 (10th Cir. 1998) (“The ADA enlarges the scope of the

Rehabilitation Act to cover private employers, but the legislative history of the ADA

indicates that Congress intended judicial interpretation of the Rehabilitation Act to be

incorporated by reference when interpreting the ADA.”). In any event, even if the

ADAAA did apply, Phan once again only offers mere conclusions and allegations

without any substance or rational explanation—that is not enough. See Nixon v. City

& Cnty. of Denver, 784 F.3d 1364, 1366 (10th Cir. 2015) (“The first task of an

appellant is to explain to us why the district court’s decision was wrong. Recitation

of a tale of apparent injustice may assist in that task, but it cannot substitute for legal

argument.”). The district court thus properly dismissed with prejudice Phan’s claims

under the ADAAA and the Rehabilitation Act as legally frivolous.

The district court next declined to exercise supplemental jurisdiction over the

remaining state-law claims of medical malpractice, legal malpractice, and bad faith

insurance practices against Patterson & Slag, P.C., Bachus & Schanker, LLC, Luke

Medical Center, and Concentra because of the dismissals of the federal claims against

these defendants. Here, we apply the abuse of discretion standard. Nielander v. Bd. of

Cty. Comm’rs, 582 F.3d 1155, 1172 (10th Cir. 2009). Under 28 U.S.C. § 1367(c)(3),

the district court may decline to exercise supplemental jurisdiction over state-law

claims if it “has dismissed all claims over which it has original jurisdiction.” Indeed,

12
we have directed courts that they should usually do so in these circumstances. Koch

v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011). Here, because all federal

claims against these defendants were properly dismissed, the only remaining claims

against them were rooted in state law. As such, we cannot say the district court

abused its discretion in declining to exercise supplemental jurisdiction and

dismissing the state-law claims without prejudice.

Lastly, the district court dismissed without prejudice the ADAAA and

Rehabilitation Act claims against Health First Colorado/Medicaid based on Eleventh

Amendment immunity. Phan does not address this issue in his brief on appeal, so we

will not consider it. See Utah Envtl. Cong. v. Bosworth, 439 F.3d 1184, 1194 n.2

(10th Cir. 2006) (“An issue mentioned in a brief on appeal, but not addressed, is

waived.”).

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s orders dismissing

Phan v. Colo. Legal Servs., No. 1:18-CV-01403-LTB (D. Colo. June 19, 2018), and

Phan v. State Farm Ins. Co., No. 1:17-CV-03073-LTB (D. Colo. July 31, 2018).

Because Phan has failed to show “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised,” Watkins v. Leyba, 543

F.3d 624, 627 (10th Cir. 2008) (internal quotation marks omitted), we DENY his

applications to proceed in forma pauperis on appeal and direct him to make full and

immediate payment of all outstanding appellate filing fees in these matters.

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 Phan has also titled each of his briefs, “Appellant’s Combined Opening Brief

and Application for a Certificate of Appealability.” If he thinks he needs a certificate

of appealability to appeal these dismissals, he is mistaken. See 28 U.S.C. § 2253(c).

We therefore DENY AS MOOT Phan’s nominal requests for certificates of

appealability.

Entered for the Court

Gregory A. Phillips
Circuit Judge

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