                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      June 28, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    STUART T. GUTTM AN, M .D.,

             Plaintiff-Appellant,

     v.                                                No. 05-2269
                                             (D.C. No. CIV-04-433-W PJ/W PL)
    JO EL W ID M AN, individually and in                (D . N.M .)
    his capacity as a member of the New
    M exico Supreme Court Disciplinary
    B oard; VIR GIN IA L. FER RA RA,
    individually and in her capacity as a
    member of the New M exico Supreme
    Court Disciplinary Board; HERBERT
    M . SILV ER BER G; PA TR IC IA A.
    M ADRID, individually and in her
    capacity as Attorney General of the
    State of New M exico;
    DISCIPLINARY BOARD, an agent of
    the New M exico Supreme Court,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and BROR BY, Circuit Judges.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      This is plaintiff Stuart T. Guttman’s second appeal in this case. He filed

the first pro se, seeking review of the district court’s denial of his motion to

recuse. That appeal was dismissed for lack of appellate jurisdiction. See

Guttman v. Widmon [sic], No. 04-2316 (10th Cir. M ar. 16, 2005) (order

dismissing appeal). In the present appeal, M r. Guttman, again appearing pro se,

contests various rulings of the district court in favor of defendants or against him.

W e have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                   I. Background

      M r. Guttman lost his license to practice medicine as a result of proceedings

before the New M exico B oard of M edical Examiners. Defendant Herbert

Silverberg, an attorney, represented M r. G uttman in those proceedings.

Contending that the representation was substandard, M r. Guttman filed a

complaint against M r. Silverberg with the N ew M exico Supreme Court

Disciplinary Board (Disciplinary Board or Board). In this action, M r. Guttman

claimed that the Board, 1 through the New M exico Attorney General, defendant

Patricia M adrid, prevented him from publicizing his complaints against

M r. Silverberg in violation of his First A mendment right of freedom of speech.

As the source of this constraint, M r. Guttman relied primarily on Rule 17-304 of




1
        Although M r. Guttman referred to the New M exico Supreme Court in his
first claim, we construe his pleading to mean the Disciplinary Board, as he did not
name the Court as a defendant.

                                          -2-
the Rules Governing Discipline promulgated by the New M exico Supreme Court,

which reads, in relevant part:

      17-304. Confidentiality of investigations; exceptions; hearings.

      A. Confidentiality. Except as otherwise provided by this rule, any
      investigation and any investigatory hearing conducted by or under the
      direction of disciplinary counsel, or disciplinary counsel’s authorized
      agents, shall be entirely confidential unless and until they:

             (1)    become matters of public record by:
                    (a)   the filing of a formal specification of charges with the
                           Disciplinary Board pursuant to Rule 17-309 NM RA;
                    (b)    the filing of a summary suspension proceeding pursuant
                           to Rule 17-207 NM RA;
                    (c)   the filing of an incompetency or incapacity proceeding
                           pursuant to Rule 17-208 NM RA;
                    (d)    the filing of a reinstatement proceeding pursuant to Rule
                           17-214 NM RA; or
                    (e)   the filing of a motion for order to show cause why a
                           respondent should not be held in contempt pursuant to
                           Paragraph G of Rule 17-206 NM RA; or
             (2)    are otherw ise released according to these rules.

N.M .R.A. 17-304.

      In his second claim for relief, entitled “Damages,” M r. Guttman claimed

that the Disciplinary Board, through Attorney General M adrid, wrongly denied

him access to complaints filed against M r. Silverberg. He contended that, had he

known about those complaints, he never would have hired M r. Silverberg and

sustained damages as a result of M r. Silverberg’s allegedly deficient

representation of M r. G uttman before the Board of M edical Examiners.




                                         -3-
      In his prayer for relief, M r. Guttman requested a finding that the

Disciplinary Board, two of its disciplinary counsel, defendants Joel W idman and

Virgina Ferrarra, and Attorney General M adrid (together, State Defendants)

conspired to deprive him of his free speech rights. He also sought damages

arising from M r. Silverberg’s representation and injunctive relief (the object of

his third claim for relief) in the form of an order that the State Defendants open

the Board’s records to public inspection. In unnecessarily protracted pretrial

litigation, the district court granted M r. Silverberg’s motion to dismiss and the

State Defendants’ motion for summary judgment. The district court also denied

M r. Guttman’s motions for recusal and summary judgment, and imposed filing

restrictions on him. This appeal followed.

                                   II. Discussion

      A.     M r. Silverberg’s M otion to D ismiss.

      The district court granted M r. Silverberg’s motion to dismiss the amended

complaint as against him pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that

he had no role in the promulgation or enforcement of Rule 17-304 and that any

reference to his allegedly substandard performance was merely context for

M r. Guttman’s claims against the other defendants. On appeal, M r. Guttman

argues only that the district court should not have granted the motion to dismiss

because it previously had denied M r. Silverberg’s motion to abstain, which was

based on M r. Guttman’s pending state-court suit against him. W e review de novo

                                          -4-
the district court’s dismissal pursuant to Rule 12(b)(6). Sutton v. Utah State Sch.

for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). In doing so, “all

well-pleaded factual allegations in the amended complaint are accepted as true

and viewed in the light most favorable to the nonmoving party.” Id. Because

M r. Guttman appears pro se, we review his pleadings and other papers liberally

and hold them to a less stringent standard than those drafted by attorneys. See

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

      In M r. Silverberg’s earlier motion to dismiss on abstention grounds, he

opined that none of the claims pertained to him. Although the district court

questioned whether he was a proper defendant, the court noted that he had not

moved for dismissal on any grounds other than abstention, and the court did not

consider any basis other than abstention in denying the motion. Accordingly, the

order denying M r. Silverberg’s motion to abstain did not bar the district court

from granting his later motion to dismiss pursuant to Rule 12(b)(6), which raised

different grounds for dismissal of the claims asserted against him, i.e., that he had

no role in the promulgation or enforcement of Rule 17-304. 2



2
       M r. Guttman also argues that the district court should not have granted the
motion to dismiss because it was filed several months after the deadline for
pretrial motions set in the Initial Pretrial Report (IPR). (Although we are unable
to locate a copy of the IPR in the record, we note that M r. Guttman provided a
copy to which we will refer. See Aplt. App., Vol. I at 45-55.) The IPR, however,
provides that motions filed after the deadline would be considered late in the
discretion of the court. Id. at 53. The district court apparently did not consider
M r. Silverberg’s motion as untimely, perhaps because it was meritorious.

                                          -5-
        B.    State Defendants’ M otion for Summary Judgment.

        The district court granted the State D efendants’ motion for summary

judgment for a variety of reasons. “W e review the district court’s grant of

summary judgment de novo . . . [and] view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.” Simms

v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1326 (10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The nonmovant may not rest upon his pleadings. Simms, 165 F.3d at

1326.

        The district court ruled that Eleventh Amendment immunity barred any

claims for damages against the Disciplinary Board and the individual State

Defendants in their official capacity. M r. Guttman’s appellate arguments on this

issue that pertain to qualified immunity are not relevant to the Eleventh

Amendment immunity analysis. His argument that the district court’s ruling on

Eleventh Amendment immunity bars his request for prospective injunctive relief

under Ex Parte Young, 209 U.S. 123 (1908), is misguided as the Eleventh

Amendment immunity holding by its terms is limited to immunity from suit for

damages. Having reviewed the record, we affirm the district court’s ruling on

                                          -6-
Eleventh Amendment immunity for substantially the same reasons as set forth in

the district court’s opinion. See R., Vol. III, Doc. 132 at 3-4.

      The district court next construed M r. Guttman’s First Amendment claims

against Attorney General M adrid as arising under 42 U.S.C. § 1983 and

concluded that they fail because he had not shown the Attorney General had

personally participated in any acts that violated his free speech rights. To

establish supervisor liability under § 1983, a plaintiff must show that “an

affirmative link exists between the [constitutional] deprivation and either the

supervisor’s personal participation, his exercise of control or direction, or his

failure to supervise.” M eade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988)

(quotation omitted) (alteration in original).

      M r. Guttman alleged that the Disciplinary Board acted through the Attorney

General. His position on appeal appears to be that he named Attorney General

M adrid in order for her to consider the constitutionality of Rule 17-304, see Aplt.

Opening Br. at 6-7. He bases this argument primarily on Doe v. Doe, in which

the Tennessee Supreme Court asked the Tennessee Attorney General to file an

amicus brief and participate in oral argument in a pending case that concerned the

constitutionality of a disciplinary rule concerning duties of confidentiality in

attorney disciplinary proceedings, 127 S.W .3d 728, 729 (Tenn. 2004). The

Attorney General in Doe did not become a party to the case. M r. Guttman’s

objective in naming Attorney General M adrid in this case is insufficient to satisfy

                                          -7-
the personal participation requirement of actions brought pursuant to § 1983 or to

show that she is otherwise a proper defendant in this action, and he has provided

no other argument or evidence to show her direct or supervisory participation.

      The district court further construed the amended complaint as possibly

setting forth a claim under the New M exico Tort Claims Act, N.M . Stat. Ann.

§§ 41-4-1 to 41-4-27 (Act), and granted summary judgment because New M exico

had not waived immunity under the Act for M r. Guttman’s claims, M r. Guttman

had not complied with the A ct’s notice requirements, and his claims were

time-barred. For substantially the same reasons as set forth in the district court’s

opinion, see R., Vol. III, Doc. 132 at 5-7, we affirm the dismissal of any claim

M r. Guttman brought that could be construed as arising under the Act.

      The district court proceeded to the merits of M r. Guttman’s First

Amendment claim and concluded that Rule 17-304 applies only to the

Disciplinary Board and its counsel and does not prevent M r. Guttman from

publicizing his complaints against M r. Silverberg. M r. Guttman argues that the

rule is vague and overbroad. W e disagree.

      “A plaintiff may challenge a statute as overly vague w here the statute’s

deterrent effect on legitimate expression is ‘both real and substantial’ and the

statute is not ‘readily subject to a narrowing construction by the state

courts . . . .’” Faustin v. City & County of Denver, 423 F.3d 1192, 1202

(10th Cir. 2005) (quoting Young v. Am. M ini Theatres, Inc., 427 U.S. 50, 60-61

                                          -8-
(1976)). However, “[s]peculation and ‘hypertechnical theories as to what the

statute covers’ cannot create vagueness, especially when the statute is ‘surely

valid in the vast majority of its intended applications.’” Id. (quoting Hill v.

Colorado, 530 U.S. 703, 733 (2000)). Similar concerns drive the overbreadth

analysis. See id. at 1199-1200.

      Rule 17-304 is distinct from rules in other states that were struck down on

First Amendment grounds to the extent they expressly imposed a duty of

confidentiality on complainants in a disciplinary proceeding. See, e.g., Doe v.

Sup. Ct., 734 F. Supp. 981, 988 (S.D. Fla. 1990); R.M . v. Sup. Ct., 883 A.2d 369,

374, 381 (N .J. 2005); Doe, 127 S.W .3d at 731, 736; Petition of Brooks, 678 A.2d

140, 141 (N.H. 1996). Although Rule 17-304 does not explicitly state that

complainants are not bound by its confidentiality provisions, Rule 17-105(C)(5)

provides, “Disciplinary counsel shall have the duty . . . to keep all complaints and

other disciplinary matters confidential except as otherwise provided by these

rules.” N.M .R.A. 17-105(C)(5) (emphasis added).

      Based on Rule 17-105(C)(5), we conclude that Rule 17-304 does not

require M r. Guttman to keep his ow n complaints about M r. Silverberg

confidential. 3 The absence of a specific exclusion for complainants, coupled with

3
      In an affidavit supporting the motion for summary judgment, M r. W idman
suggested this same conclusion. See R., Vol. II, Doc. 114, Ex. A, ¶ 7. However,
his opinion is not necessary to our disposition of this purely legal issue.
Therefore, we decline to consider whether alleged improprieties in the execution,
                                                                        (continued...)

                                          -9-
the fact that all correspondence from the Board to M r. Guttman was marked

“Confidential,” may have fostered M r. Guttman’s misunderstanding, but it does

not lead to the conclusion that Rule 17-304 is unconstitutionally vague or

overbroad. As narrowed by reference to Rule 17-105(C)(5), Rule 17-304 does not

pose a real and substantial threat to a complainant’s ability to publicize his own

complaints. Rather, M r. Guttman’s interpretation of Rule 17-304 is w holly

speculative. Rule 17-304, therefore, is not vague or overbroad. Accordingly,

M r. Guttman’s First Amendment claim fails, and he is not entitled to damages or

any prospective injunctive relief. 4

      C.     M r. Guttman’s M otion for Summary Judgment.

      Despite finding M r. Guttman’s motion for summary judgment untimely, the

district court denied it on the merits. Based on the foregoing discussion affirming

the grant of the State Defendants’ motion for summary judgment, we agree that

M r. Guttman’s motion fails on the merits. Accordingly, we need not address his



3
 (...continued)
filing, and service of the affidavit render the State Defendants’ motion for
summary judgment untimely. The motion itself was timely because it was filed
electronically prior to 8:00 a.m. of the business day following the date it w as due.
See D.C.N.M .LR-Civ. 5.5(a).
4
       The district court also considered M r. Guttman’s complaint as stating a
facial free speech challenge to R ule 17-304’s restriction on the D isciplinary
Board’s dissemination of information about complaints filed against attorneys and
the Board’s investigations of those complaints. M r. Guttman has raised no
argument on this point on appeal. A ccordingly, he has waived this issue. See
State Farm Fire & Cas. Co. v. M hoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

                                         -10-
contention that it was unfair to find his motion untimely but not the State

Defendants’ motion for summary judgment, which we concluded above was

timely, see supra, footnote three.

      D.     Judicial Bias.

      M r. Guttman points to a variety of comments in the district court’s orders

in support of his contention that the district judge was biased against him. Some

of the comments concerned M r. Guttman’s ignorance of procedural rules due to

his pro se status and its effect on the number and quality of his filings, for which

the judge threatened sanctions. Other comments concerned the judge’s view that

two of M r. Guttman’s other suits were no longer pending and that he likely had

removed a third improperly. M r. Guttman also takes issue with the statement in

an order denying a motion for post-judgment relief from filing restrictions that

any further motions would be considered frivolous because M r. Guttman already

had filed his notice of appeal, thereby depriving the district court of jurisdiction.

      “[O]pinions formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” Liteky v.

United States, 510 U.S. 540, 555 (1994). Having reviewed the record in this case,

we conclude that the comments with which M r. Guttman takes issue evidence

opinions that the district judge formed in the course of the proceedings and are

                                          -11-
not of the type that make fair judgment impossible. Therefore, we perceive no

bias on the part of the district judge.

      E.     Filing Restrictions.

      The final issue before us is the district court’s entry of a permanent

injunction against M r. Guttman that prevents him from filing any lawsuits in the

United States D istrict Court for the District of New M exico unless he is

represented by counsel or, if he proceeds pro se, unless he complies with a

number of conditions when tendering a proposed complaint. Those conditions

require him to provide an affidavit that the action is commenced in good faith, is

not malicious, and has arguable merit. He must certify the proposed complaint

pursuant to Fed. R. Civ. P. 11. The proposed complaint must list all actions he

has previously filed and describe their status. He must provide a copy of any

other filing restrictions placed on him. Finally, he must submit a notarized

affidavit that describes with particularity the legal issues, discloses whether they

were raised in any other actions, and certifies again that the legal arguments are

not frivolous or made in bad faith but are warranted by existing law or a

good-faith argument for extension, modification, or reversal of existing law.

Upon compliance with these requirements, the district court then would review

the complaint and make a determination whether it should be accepted for filing.

      Federal courts may “regulate the activities of abusive litigants by imposing

carefully tailored restrictions under the appropriate circumstances.” Tripati v.

                                          -12-
Beaman, 878 F.2d 351, 352 (10th Cir. 1989) (per curiam) (quotation omitted).

“Litigiousness alone will not support an injunction restricting filing activities.”

Id. at 353. Filing restrictions, however, are appropriate w here the litigant’s

lengthy and abusive history is set forth, the court provides guidelines as to what

the litigant must do to obtain its permission to file an action, and the litigant

receives notice and an opportunity to oppose the court’s order before it is

implemented. See id. at 353-54. “The conditions cannot be so burdensome,

however, as to deny a litigant meaningful access to the courts.” Cotner v.

Hopkins, 795 F.2d 900, 902 (10th Cir. 1986).

      W e have reviewed the record in this case and conclude that the

requirements of Tripati are met. The district court described a variety of

M r. Guttman’s procedurally improper or meritless filings. The restrictions

provide specific guidelines, and he was given the chance to respond. The

restrictions do not deny M r. Guttman meaningful access to the courts. He may

hire an attorney or file pro se any action deemed to be nonfrivolous.

M r. Guttman’s procedural transgressions, misunderstanding of legal theories,

misapplication of case law, and sophistic arguments in this case have tested the

limits of the leeway afforded to pro se litigants. W e observed similar problems in

our review of the case file in Guttman v. Silverberg, 167 F. App’x 1 (10th Cir.

2005) (unpublished), petition for reh’g and reh’g en banc denied, No. 05-2180

(10th Cir. Jan. 26, 2006) (order denying petitions), cert. denied, 126 S. Ct. 1913

                                          -13-
(2006), of which we take judicial notice. Despite the fact that M r. Silverberg also

was a defendant in that case, we conclude that our opinion in Judd v. University

of New M exico, 204 F.3d 1041, 1043-45 (10th Cir. 2000), does not require that

the injunction be more narrowly tailored because M r. Guttman’s litigation

conduct cannot reasonably be expected to be confined to future pro se litigation

related only to the parties and subject matter of the present case.

                                  III. Conclusion

      The judgments of the district court are AFFIRM ED.


                                                     Entered for the Court


                                                     M ary Beck Briscoe
                                                     Circuit Judge




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